BHUPAT MANDAL Vs. KARTIK JHA

JUDGEMENT

(1.) THIS is an application in revision against the conviction and fine of one Bhupat Mandal under Section 447, I.P.C. The findings are that just after the great earthquake on 15 January 1934 the petitioner placed a temporary hut on the dhanhar land of the complainant's master within the Jamalpur Municipality and on 16 February 1934 was building a permanent structure when the complainant, who is a peon of the owner, stopped him and was met with abuse and intimidation. The petitioner endeavoured to establish that he was previously in possession and adduced a considerable amount of documentary evidence which however appeared futile in the light of the prosecution evidence and the statement of his own defence witnesses that he had not been in possession of any land in Faridpur, the mauza in which the land is situated, during the past six or seven years. The only point which could possibly arise in the present case is whether the definition of criminal trespass in Section 441, I.P.C. has been satisfied. The Magistrate, not without justification, designated the action of the petitioner as mean. He went on to say that his action in attempting to build a permanent structure "must have caused annoyance" to the owner of the land (who had let him remain temporarily on sufferance) and therefore it constituted a criminal trespass. That however is not the law. It may be that the action of the petitioner necessarily resulted in annoyance to the owner of the land and indeed caused damage to him by preventing him from cultivating the land; but there is nothing at all to show that in building, the intention was to cause annoyance and that ingredient is essential in criminal trespass. Accordingly the application must be allowed, the conviction and sentence are set aside and the fine, if paid, must be refunded.