DEBABRATA MOOKERJEE, J.

( 1 ) THESE four petitioners have been convicted by a Magistrate at Krishnagar under Section 447 of the Indian Penal Code and each sentenced to pay a fine of Rs. 50, in default, to suffer rigorous imprisonment for twenty days. There was an appeal against this order of conviction and sentence which was, however, dismissed by the Assistant Sessions Judge, Nadia.

( 2 ) COMPLAINANT Sudha Krishna Ghose is a brother of the petitioner Bata Krishna Ghose while the other three petitioners are sons of Bata Krishna. It is said that as a result of an amicable partition, the complainant came to hold plot No. 73 of Mouza Char Manikdihi under Khatian No. 30 separately. On the 18th June, 1954, the petitioners are said to have trespassed upon the plot and ploughed up the land on which Arhar was sown. The allegation is that one or two of the petitioners carried lathis in their hands. Upon these allegations, the petitioners were charged under Section 447 of the Indian Penal Code with having committed criminal trespass on the plot in question.

( 3 ) THE petitioners pleaded not guilty, and the defence case was that the land belonged to the petitioner Bata Krishna Ghosh. There does not appear to be a denial of the fact that the plot was ploughed up and Arhar sown upon it.

( 4 ) IT is somewhat remarkable that the learned Assistant Sessions Judge appears to have thought that mere entry upon the land constituted criminal trespass. There is no finding recorded by him which would show that the petitioners had acted with one or other of the intents specified in Section 441 of the Indian Penal Code. That section provides inter alia that when a person enters into or upon a property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, he commits the offence of criminal trespass. In order that a conviction may properly be had upon a charge of offence of criminal trespass, there has to be a finding based upon evidence to the effect that the act of trespass was committed either with intent to commit an offence or with intent to intimidate, insult or annoy any person.

( 5 ) SINCE the learned Judge did not think it right to record any finding whatever as regards the essential ingredients of the offence, I examined the evidence in the case in order to be able to see for myself whether there were materials on the record upon which a conviction of criminal trespass could properly be founded. I must at once say that the evidence, such as it is, falls far short of the requirements of the section. In the first place, the complainant was not there at the time when the offence was alleged to have been committed. He is a mohurir who resides at Krishnagar. It is said that he was the person in possession of the plot at the time of the occurrence. The complainant's son is said to have been present and was in fact intimidated by the petitioners when there was protest. In order that a conviction can be had, it was necessary that the person in possession, viz. , the complainant, should have been intimidated, insulted or annoyed. The intent to annoy or intimidate cannot be in respect of any and every person connected with the property, but with respect only to the person in actual possession of such property. If, therefore, the complainant was not present to be intimidated, insulted or annoyed, I do not think there could be a conviction in this case unless it could be found upon evidence that there was intent to commit an offence. It was nowhere suggested in the evidence what offence, if any, the petitioners intended to commit. Could it be said that the petitioners intended to commit the offence of mischief by ploughing up the land and sowing Ahrar seeds on it ? The evidence shows that at that time the land was lying fallow; it was covered with Babla plants all over. Even so, the act of the petitioners in ploughing up the land might be an unlawful act, but I do not thi

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