SENGUPTA, J - (1.) This appeal is directed against an order of acquittal passed in Criminal Appeal No. 24 of 1979 by the learned Additional Sessions Judge, 13th Court, Alipore. That appeal was preferred by the accused Durga Charan against the order of conviction and sentence passed against him by the Judicial Magistrate under Ss. 454 and 427 I.P.C. The learned Additional Sessions Judge upholding the findings of the learned Magistrate that the accused committed mischief by breaking open the door and throwing out the articles from the room in the possession of the complainant after entering therein, convicted the accused under S.426 I.P.C. instead of S. 427 I.P.C. as done by the learned Magistrate, because he held that there was no evidence as to the extent of loss suffered by the complainant.
(2.) With regard to the charge under S. 454 I.P.C., the learned Additional Sessions Judge acquitted the accused on two grounds : (1) that the prosecution failed to prove that the intention of the accused was to commit the offence of mischief; and (2) that even if it was assumed that the intention of the accused was to commit mischief the accused could not be convicted of a charge under S. 454 I.P.C. because "the offence of mischief is not exclusively punishable with imprisonment either under S. 426 or under S. 427 I.P.C."
(3.) These findings of the learned Additional Sessions Judge are perverse. The learned Additional Sessions Judge himself found that it was "proved beyond doubt that the accused together with some others actually came in front of the complainant's godown in the early morning on 13-7-1976 and broke open the door of the godown with force, entered the godown and threw out the articles from the godown on the road." Thus the findings of the learned Additional Sessions Judge borne out by the evidence clearly show that according to the learned Additional Sessions Judge also lurking house trespass was in fact committed by the accused-respondent. It is strange that the learned Additional Sessions Judge could devote a few pages on the question of intention which was totally irrelevant for the purpose of this case. S. 454 which is quoted below shows that intention is totally irrelevant in this case : "Section 454 - Whoever commits lurking house-trespass or house-breaking, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to ten years." Thus the section comprises two parts with regard to question of punishment. The first part states that the person committing house trespass or house breaking in order to commit any offence punishable with imprisonment shall be punished with imprisonment or fine. In the first part there is nothing stated about intention. It only deals with certain facts, namely the fact of committing lurking house trespass and the fact of committing of any offence punishable with imprisonment or fine. The second part deals with the question of intention. The second part deals with an aggravated form of the offence. This offence is aggravated only when, as stated in the second part, there is an intention to commit a particular offence, namely, theft. So far as the first part of the section is concerned, as already stated, the question of intention is totally irrelevant.;