JUDGMENT

Jai Lal, J. - The two petitioners Harkishan Lal and Ram Nath were sent up for trial before a Magistrate of the First Class, Lahore, under various sections of the Indian Penal Code. They were charged under Sections 452 and 323 of the Code but were convicted under Section 452 and sentenced to one year's rigorous imprisonment and a fine of Rs. 200 each. On appeal the learned Sessions Judge altered the convictions to Section 451, I.P.C., and reduced the sentence to six months rigorous imprisonment and a fine of Rs. 50 in the case of each convict.

2. The facts alleged by the prosecution are that the petitioners along with others were picketing the shop of one Ramji Das, a liquor vendor of Lahore, on 14th June 1930, when two men P.W. 1 Fazalu and P.W. No. 4 Munah went there to purchase liquor and were both prevented from going inside the shop but they forced their way in and purchased a bottle of liquor, but when they attempted to get out of the shop they were again obstructed. They however drank the liquor inside the shop whereupon the petitioners entered the shop and beat both Fazalu and Munah there. The Magistrate has disbelieved the story as to beating and in spite of the denial by the petitioners that they entered the shop has held that they did enter the shop of Ramji Das and prevented the two prosecution witnesses from leaving it. He therefore held that, the petitioners were guilty under Section 452, because they had wrongfully confined Fazalu and Munah inside the shop.

3. On appeal the Sessions Judge has held that the petitioners did enter the shop of Ramji Das, but that they did not wrongfully confine Fazalu and Munah but they assaulted them and therefore he has altered the conviction under Section 451, I.P.C. That section makes a person punishable if he commits house trespass in order to the committing of any offence punishable with imprisonment. The offence punishable with imprisonment which according to the learned Sessions Judge was committed by the petitioners in this case is assault on Fazalu and Munah. But the learned Magistrate has found that no assault was committed. I am unable to understand how in the face of the finding of the Magistrate and the acquittal of the petitioners by him under Section 323, the learned Sessions Judge could hold that an assault was committed by the petitioners inside the shop.

4. I might incidentally note the arguments of the petitioners' counsel that by virtue of Section 40, I.P.C., the offence in order to commit which the house trespass is made punishable under Section 451, I.P.C., must be punishable with imprisonment for more than six months. In my opinion that is not the correct reading of Section 40, as for the purpose of Section 451 any offence punishable under the Indian Penal Code is an "offence". It is only an offence which is punishable under a special or a local law that must be punishable with imprisonment of six months or more before it can be considered to be an offence within the meaning of Section 451. If therefore the petitioners could legally be found guilty of having committed an assault inside the shop, they could probably be convicted under Section 451, I.P.C. The question however remains whether on the facts found a case of criminal trespass has been established against the petitioners. The learned Counsel for the Crown says that it must be held that annoyance was caused to the person in possession of the shop, i.e. Ramji Das, and if annoyance was caused to Ramji Das it must be assumed that the petitioners intended to cause him annoyance. It is however curious that though Ramji Das was examined as a witness for the prosecution, he not only did not identify the petitioners but did not even say that they caused him any annoyance. All that he stated was that two persons came to purchase liquor to his shop and when they wanted to go outside two volunteers who were standing at each door prevented them; that the volunteers had been preventing persons from buying liqu