GANAURI MIA Vs. EMPEROR

JUDGEMENT

(1.) IN this case eight persons were charged with rioting, and there were several individual charges against some of them besides a charge under Section 448, INdian Penal Code, against the petitioner. As to the petitioner, the finding of the lower Courts is that he was not seen at the occurrence near the house nor is it alleged that he took part in the loot, but he was found in occupation when the Sub- INspector came quietly attending to his sewing, when the A.S.I. came, the reference being to the shop that the rioters are said to have looted and apparently turned the complainant out of it. The petitioner's conviction is assailed on two grounds. The first is that he should not have been tried along with the rioters at all as on the findings of the lower Courts his criminal trespass was no part of the riot. This contention is supported by the fact that there is no finding when the petitioner was put into possession by the rioters nor any allegation even that it was the object of the riot forcibly to transfer the possession from the complainant to the petitioner Even more effective is the second ground urged before me, namely that the offence of criminal trespass is not made out merely by the fact that after the riot the petitioner was found in possession of the shop, the possession of the complainant having, on the findings of the lower Courts, come to an end some time before that of the petitioner began. As regards the criminal intent also, the trial Court says that the petitioner's presence in the shop in view of all that had taken place must have given great annoyance to the complainant; and the learned Magistrate who heard the appeal expressed himself on the same point thus: His occupation after the loot was apparently to support the defence claim that the maliks were in possession and amounted to intention to annoy.

(2.) IT is clear on the findings of the lower Courts that the intention has not been properly found; intention to annoy cannot be properly inferred, if it can be inferred in such cases at all, from something done after the complainant's possession of the shop bad come to an end. The rule must, therefore, be made absolute and the conviction of the petitioner under Section 448 set aside. The petitioner is acquitted. The fine, if paid by him, must be refunded.