ORDER

Sinha, J. - This is an application in revision against an order of the learned Sessions Judge of Agra by which he substantially affirmed the judgment of a learned Magistrate of the First Class.

2. The applicant is a constable attached to the police force at Agra. He was found inside the compound of the house of Mr. Hardial Singh, prosecuting Inspector, on the night of 22-5-1945, at about 11 P.M. Mrs. Hardial Singh was lying on a charpoy in the court-yard. She saw the accused standing near her bed. She got up and asked him "who is there?". She recognized the applicant and reprimanded him. The applicant scaled a wall and walked away. Mrs. Hardial directed her daughter to inform her husband. Mr. Hardial was roused by one Islam Ahmad, the son of a police head constable. The boy told him that a constable had gone to Mrs. Hardial Singh's bed, lifted the curtain leading to the women's quarter and had then walked away. Hardial and Islam then saw the accused passing by a neem tree near a latrine and going towards the police outpost. Hardial shouted, but the accused made no response. He went to the police outpost and told the Sub-Inspector about the occurrence. The applicant was arrested and was taken to Mrs. Hardial and she identified him as the intruder. The above, in brief, is the story for the prosecution.

3. The defence, in the main, was that the applicant had an attack of sunstroke which had caused mental aberration and the act attributed to him was a result of that. The learned Magistrate accepted the story for the prosecution in the main, and held that the applicant was guilty. He sentenced him to rigorous imprisonment for one year under S. 457, Penal Code.

4. The learned Sessions Judge, on appeal, agreed with the finding of the learned Magistrate, but thought that having regard to the antecedents of the accused, the case fell within the purview of S. 454, Penal Code, and, therefore, altered the conviction under S. 457 to one under S. 454, Penal Code, and, in view of the fact that it was his first conviction, he directed his release under S. 4, First Offenders' Probation Act. He ordered the execution of a bond for Rs. 300 with two sureties in Rs. 300 each. In the event of a breach or failure to produce them, he was directed to undergo rigorous imprisonment for nine months. The accused has come to this Court in revision.

5. The learned counsel contends that, on the findings of the learned Judge, the applicant is entitled to acquittal. He takes his stand on the following observations:

I do not think, however, that it can be said that the appellant had gone to commit theft. There is nothing to show that he had gone there for that purpose and the evidence is that he had walked away at a normal pace from the house. It might be that he had gone to meet a female servant or for some other purpose not connected with theft.

[6] If the accused had gone to the house "to meet a female servant," I do not think the case comes within the mischief of S. 454, Penal Code. Section 454 says:

Whoever commits lurking house trespass or housebreaking, in order to the committing of any offence punishable with imprisonment.

The important words are :. "In order to the committing of any offence."

7. Theft being ruled out of consideration, the only other alternative is that he had gone "to meet a female servant." In other words, he had gone at the invitation of an inmate of the house, though not a member of the family.

8. The next question is : What offence, if any, has the applicant committed, if he went to the house under these circumstances ? Section 441, Penal Code, furnishes an answer to this question and says :

Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property...

"Intention" is the sine qua non. Annoyance or intimidation might result from a certain conduct and yet it may never have been intended. It is also possible to conceive of a ca