EMPEROR Vs. RAM SARUP

JUDGEMENT

(1.) THIS is an application in revision against an order of the District Magistrate of Meerut, dismissing the appeals of Ram Sarup, Mutasaddi Lal and Ram Rijpal who have been convicted of an offence under Section 447, Indian Penal Code, and sentenced to a fine. The case was tried by a magistrate of the third class. His judgment, contains a complete statement of the-facts of the case and the evidence given by various witnesses, but makes no inference throughout to the definition of "criminal trespass" as given in the Indian Penal Code. There is therefore no finding recorded as to whether the conviction in this case is for having entered on property in possession, of the complainant Umrao Mirza with intent to commit an offence, or with intent to intimidate, insult or annoy the said Umrao Mirza. The case for the prosecution is thus stated by the magistrate at the very commencement of his judgment: That in the village of Aslatpur plot No. 12 owned and possessed by the complainant and other co-sharers was lying waste; that the accused Ram Rijpal paid a visit to the complainant and asked his permission to build a house on the said land, which permission was flatly refused; that the complainant subsequently came to know that the three accused had built four walls on a portion of plot No. 12 aforesaid, put grass thatch on them and had commenced to tie their cattle therein and to live there themselves. I think I may infer from the judgment that these are the facts which the magistrate held to be proved. Thu District Magistrate on appeal was expressly invited to consider the question whether the conviction was justified, either on the evidence or in law, on the facts found. He dismissed the appeal summarily without giving any reasons. So far as I can gather, the plot of waste land in question was one which might have been entered upon by any one of the accused, in the sense that they could have walked across it in pursuance of their daily avocations, without the complainant s being entitled to raise any objection. If the conviction therefore can be maintained at all, it must be upon a finding that, when the three accused began to build the walls the subject-matter of the complaint, they were unlawfully remaining on this land with some such intent as would render them liable to punishment.

(2.) THE only intent which could reasonably be argued against them would be an intent to annoy Umrao Mirza. I have been referred to one or two cases on the point, the first being the well-known authority of this Court, In the matter of the petition of Gobind Prasad (1879) I. L. R., 2 All., 465, and the other being a decision of the Bombay High Court in Emperor v. Lakshman Raghunath (1902) I. L. R. 25 Bom. 568. It must be noted that the accused Ram Rijpal is himself a co- sharer in the village, and his asking another co-sharer to consent to his appropriating to his own use a portion of a plot of waste land would not necessarily imply that the co-sharer whose consent ho asked was admitted by him to be the sole owner of the plot in question. On the facts of the case and in view of the authorities, I do not think that the mere fact that Umrao Mirza had intimated to Ram Rijpal that he would object to the latter s building upon any portion of that land is sufficient to warrant a conclusion that the accused were acting unlawfully when they remained on his plot of land in order to set up enclosure walls, or that their intention was to annoy Umrao Mirza. Accepting this application I set aside the conviction and the sentence in the case. THE fine, if paid, will be refunded.