ORDER

Bajpai, J. - This is an application in revision by one Baldewa who has been convicted by the Bench Magistrates, Kandhla, district Muzaffarnagar, u/s 447. Penal Code, and sentenced to pay a fine of Rs. 100. The Bench also passed certain orders regarding possession of the property for which trespass is said to have been committed. This conviction was affirmed in appeal by the learned Sessions and Subordinate Judge of Muzaffarnagar. In revision it has been argued before me that the trial is vitiated because the complainant was not examined u/s 244, Criminal P.C. and the Magistrate was bound to do so. Next it is contended that:

In the absence of any evidence that the entry in the land was with a view to intimidate or insult or annoy the railway authorities the conviction u/s 447, I.P.O., is bad in Jaw.

2. The third ground is the commen ground regarding the severity of sentence. No grievance has been made before me in connection with the order regarding possession of the property over which trespass has been said to-be committed. The facts are that there is a plot of land which has been recently let out to the S.S.L. Railway and the railway has put up certain boundary flags over the plot that has been leased out to the railway. The accused Baldewa started building a small house or hut on a portion of the land which has now been found :to have been leased to the railway.

3. It may be conceded in favour of the accused that it was not perhaps possible to the naked eye to find out the exact limits of the railway property because it appears from the evidence of the station-master that after Baldewa had trespassed upon this land the station-master had to get an overseer to take measurements and then to point out to Baldewa that the property on which he was building was the property of the railway. I may therefore assume that Baldewa entered upon this land under a bona fide claim of title and as such I have got to see whether under Clause 1, Section 441, Penal Code, he entered upon such 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. The offence contemplated in this provision cannot obviously be the offence of criminal trespass but must be some other offence either under the Indian Penal Code or under any special enactment. In view of the finding arrived at by the Courts below that the property on which the entry was made belonged to and was in the possession of the railway, I may further hold that Baldewa's act although in assertion of a bona fide title was an unlawful act, but every unlawful act is not necessarily an offence (see Section 40, Penal Code) and an intention to commit an unlawful act not-being one of the Acts mentioned in Section 440, Penal Code, the mere entry does not render the accompanying trespass a criminal trespass. It was not-suggested in the present case that any particular offence either under the Indian Penal Code or under any special enactment was within the contemplation of the accused. I have then got to see whether Baldewa, entered upon this property with intent to intimidate, insult or annoy any person in possession of such property. It should be noticed that the legislature has used the words "with intent" and not the words "with knowledge." That there is a distinction between these two phrases is obvious from the fact that in certain other sections of the Indian Penal Code both expressions are used as meaning different sets of circumstances (see Section 425, Penal Code). It must therefore be proved by the prosecution that the accused had the intention to intimidate, insult or annoy when he made the entry, nor is it enough that the prosecution should ask the Court to infer that the entry is bound to cause intimidation, insult or annoyance to the person in possession of the property. In Motilal Vs. Emperor through Kanhaiya Lal, AIR 1925 All 540 a Bench of this Court has held that:

a conviction cannot, in our o