The intention of the accused is the deciding factor in constituting an offence of trespass.

JUDGMENT

Cuming, J. - The four petitioners in this case Safar Ali, Sujayatulla, Abdul Majid and Anwar Ali were convicted by a Sub-Deputy Magistrate exercising Second Class powers u/s 447, I. P. C, and sentenced each to pay a fine of Rs. 100. They appealed to the District Magistrate and the District Magistrate summarily rejected the appeal. They have now moved this Court and obtained the rule calling upon the District Magistrate of Noakhali to show cause why the appeal before him should not be reheard on ground 2 of the petition to this Court. Ground 2 is that in view of the complicated nature of facts and the voluminous documentary evidence, and the question of title involved in the case, the summary dismissal of the appeal has been improper and illegal. It is obvious that the summary dismissal of the appeal was not illegal. The Magistrate had power u/s 421, Criminal P.C., to dismiss this appeal summarily. It has been argued on behalf of the petitioners that, even though it was not illegal to dismiss the appeal summarily, still, it was improper in view of the complicated nature of the case. Whether or not it was improper for the District Magistrate to dismiss the appeal summarily is not necessary for me to determine, because on the facts found by the learned Magistrate it is quite clear that no offence has been committed. The facts are, as far as I can gather from the learned Magistrate's judgment, that these petitioners took settlement for grazing cattle of certain khas mahal land. At the end of that lease they remained on. the land and proceeded to cultivate it. Now Section 441, I. P. C, defines that

whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate lawfully, insult or annoy person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult, or annoy any such person or with intent to commit an offence is. said to commit criminal trespass.

2. Now it cannot he said for a moment that the intention of the petitioners either in entering upon the property or in remaining there was to commit an offence or to intimidate, insult or annoy. I asked the learned advocate who appeared for the Government under which branch of the section he considered the case fell; and he contended that it fell under the last, namely it was with the intention of causing annoyance. It is perfectly clear that it was not the intention of these petitioners to annoy the Government or any other person. They went to or remained upon the land for the sole purpose of cultivating it. Whether it did or did not annoy the Government or any other person was entirely immaterial. Even if the result of their action be to annoy the Government that would not necessarily constitute an offence u/s 441, I. P.O. It is the intention of the accused that is the deciding factor u/s 441, I. P.C., in constituting an offence of the trepass. It is perfectly clear that the intention of the petitioners in this case is not covered by Section 441, I. P C. They did not go there or remain there with intent to annoy the Government but to cultivate the Hand. It is therefore not necessary to send back the appeal for rehearing. The convictions and sentences of the petitioners are set aside and the accused are acquitted. The fines if paid, will be refunded.