A mere entry upon a land is not a criminal trespass. The entry must be with the intention set forth in section 441, I.P.C. The claim of the accused person entering upon the land may even be ill-founded. If the claim is well founded, question of approaching a criminal court or bringing a case against them does not arise at all. Even if the claim is ill-founded in law but he acts upon such ill-founded right, he cannot be made liable under Section 447 of the I.P.C.

The appellant-complainant is a large Tea Estate whereas the Respondents-accused are poor peasants. This is an appeal against the order of acquittal. The alleged offence is for criminal trespassing in respect of about 10 bighas of land.

2. The prosecution examined witnesses in support of the case and the learned Magistrate acquitted the accused holding inter alia that the accused had the right to possess the land and no question of trespass arose. The foundations of the conclusion is the admission of the complaint that the accused persons had 2 khatians obtained from the Revenue Authorities showing that the accused had been in possession for over 25 years. The learned Magistrate found that the accused had kacha khatians which authorised them to possess the land. Khatians are issued by the Revenue officials in recognition of the actual physical possession of "khatiandars''. The accu­sed had claimed that Robin Gogoi (one of them) had a khatian for 5 bighas and 19 lessas of land and he was in posse­ssion of the parcel of the land for over 25 years, and Rupeswar Gogoi, the other accused claimed that he was a rayat and was in occupation of 6 bighas 3 kathas of land for over 25 years under the complainant Tea Garden. We have perused the application of the complainant for special leave to appeal against the order of acquittal wherein the complainant admits that kacha khatian had been issued in favour of the accused in respect of the disputed land and that the aforesaid persons had been occupying the land for the last 25 years, vide para 14 of the petition at para 48 of the paper book. The complainants state in para 15 of the petition that they took steps to set aside the order of Sub-Deputy Collector in respect of entries. Therefore, the accused persons had backing of documents which bear up their claim of the right of possession.

3. The essential ingredients of offence U/S 448 are to be found in Section 441 I.P.C. Entry upon land made under a bonafide claim of right, however ill founded in law, the claim does not become criminal merely because a foreseen consequ­ence of the entry is annoyance to the occupants. To estab­lish criminal trespass the prosecution must prove that the real or dominant instant of the entry was to commit an offence or to insult, intimidate or annoy the occupant and that any claim of right was mere cloak to cover the real intent for or at any rate constituted no more than a subsidiary intent. This is the law stated by Sri John Beaument speaking for the Privy Coucial in Sinnasamy vs. King, 1951 Criminal law Journal 173. If the entry upon the land is on bonafide claim of right but the claim is ill-founded in law the action does not become criminal; it may at best be a civil trespass. The ingredients referred in Section 441 must be established by the prosecution. It must show that the real or dominant intent of the entry was one of the ingredients set out in Section 441. One of us (Lahiri, J.) dealt with the question in Nishi Kanta Das vs. State of Assam 1977 Assam Law Report, page 47 thus:

''Trespass" in its ordinary connotation means, to enter in lawfully, infringe, intrude, invade, encroach or impinch. Trespass is a genus. It may be civil trespass or a criminal trespass. Every type of trespass is not criminal trespass. Section 441 I.P.C. does not postulate any every unlawful entry to be criminal trespass. The entry must be with the necessary intent envisaged in Section 441 I.P.C. The Section contemplates three necessary or essential ingredi­ents:-(1) there must be entry into or upon a property in prossession of another; (ii) even if such entry is law­ful, it may amount to criminal trespass, if the person entering there, unlawfully remains upon such property and (iii) such entry as aforesaid or unlawfully remaining as stated above must be with the intent (a) to commit an offence, or (b) to intimidate insult or annoy the person in possession of the property."

"Therefore, in my opinion, a mere entry upon a