KEWAL Vs. TUFAIL AHMAD

JUDGEMENT

(1.) On the facts as they appear in the judgment of the learned Judge it seems to me that, having regard to the decision of this Court in the matter of the petition of Govind Prasad (1878-80) 2 All. 465, the offence of criminal trespass has not been made out.

(2.) It has been argued that, as a matter of fact, the decision arrived at by the Magistrate on the evidence of the case was to the effect that the applicant had been turned out of the house and that the possession of it had been made over to the complainant who had, afterwards, been forcibly ousted by the applicant. If those were the real facts then obviously the conviction would be right, but I do not think that the first Court really meant that. What it said was that "the dakhalnama is a decisive proof that the complainant was put in possession of the house and that the accused Kewal was ousted by an order of the Court." The dakhalnama apparently only gave formal possession of the house and actual physical possession was not given as would appear from the findings of the learned Sessions Judge. On those findings, having regard to the ruling of this Court, which is binding on me, I must hold that the offence is not proved.

(3.) I accordingly allow the application and acquit the applicant of the offence charged and direct that the fine, if paid, be refunded.