Sharma, J. - (1.) THIS is an application in revision by Har Lal, Richpal and Chandar who have been convicted by the Learned Second Class Magistrate, Mandawa under section 147 and sentenced to a fine of Rs. 50/- each. It has also been ordered that possession of the property in dispute be restored to the complainant Banwari Lal.
(2.) THE prosecution case is that the complainant got some land in village Molabas, mortgaged to him for Rs. 6,000/- by a registered mortgage-deed dated 25th of May, 1949. He also got actual possession over the fields in dispute, but in his absence, the accused who were eight in number, criminally trespassed upon the field and brought them under their plough. On his returning to Alwar, the complainant made a visit to the fields and requested the accused to hand over the possession to him, but they threatened the complainant with use of force, if he tried to enter the fields. THE date of occurrence was alleged to be Ist June, 1949. The accused denied having made any criminal trespass upon the fields in dispute or having used any force. They pleaded that they had a patta of a field on the basis of which, they were cultivating the fields lawfully. The learned Magistrate acquitted three of the accused, but convicted five of them including the three applicants,and sentenced them as noted above. The five convicted persons went in appeal to the Court of District Magistrate, Alwar, who acquitted two more, but maintained the conviction and sentence of three applicants. He also maintained the order of restoration of possession. Hira lal, Richpal and Chandar have come in revision to this Court. It has been argued by the Learned Counsel for the applicants that no offence under section 447 was made out as the Learned Magistrate had not found that the entry was with an intent to intimidate, insult or annoy the complainant or with an intent to commit an offence. He further argued that there was, in any case, no warrant for the order of restoration under section 522 of the Code of Criminal Procedure, as it has not been established that the offence, if any, was attended by criminal force or show of force or by criminal intimidation and that by such force or by show of force or criminal intimidation, the complainant had been dispossessed of immovable property. On behalf of opposite party, it has been argued that the Learned District Magistrate has found that the accused retained possession of the property unlawfully and that in continuing their unlawful possession, they offered threats to the complainant. This wrongful act of the accused continued and the occupation of the land was with an inten to annoy, insult and intimidate the complainant. The accused were therefore, rightly convicted under section 447. It was further argued that the accused were retaining unlawful possession of the property by show of force, as has been held by the learned Lower Court. I have considered the arguments of both the Learned Counsels and have gone through a number of rulings cited by each of them. The first thing that has to be considered is whether the accused committed any offence under section 447 of the Penal Code. If their conviction under section 447 cannot be maintained, the question of restoration of possession under section 522 of the Code of Criminal Procedure, would not arise. It has been held in A. I. R. 1924 Lahore P. 449 Rehna and another vs. Emperor that no offence of criminal trespass can be committed unless there was criminal intent as defined under section 441 of the Indian Penal Code. Every trespass is not criminal trespass. There must be an intent specified in S. 441. Although the act may be unlawful and may be one which the civil law will restrain or which the civil court will compensate the injured party in damages, still it does not necessarily constitute an offence under sec. 441. Similarly in A. I. R. 1933 Oudh P. 197 Bisan Dayal V. Brij Bihari it was held that where an accused trespassed on the field of the complainant and it was found that the primary intention of the accused was to take possession of the field in dispute, the act of the accused amounted only to a civil trespass, for which substantial damages could be claimed in civil courts and that in the absence of a primary intention to intimidate, insult or annoy on the part of the accused, he could not be held guilty under sec. 447. In the present case all that the Learned Magistrate has said is that after the complainant had obtained mortgage of the property and had cultivated it, the accused without any right, took possession of the field with an intent to obtain, possession unlawfully. The Learned Magistrate has not said anywhere that the entry of the applicant was with an intent to insult, annoy or intimidate the complainant or to commit any offence. Every trespass cannot be said to be a criminal trespass unless one of the intents given in sec. 441 is proved. The Learned District Magistrate in in appeal tried to find out the requisite intent from the subsequent action of the applicants in resisting the complainant from taking possession of the fields, when he came back. I do not think that under the circumstances of the case, he was justified in coming to that conclusion in the absence of any such finding by the first court. All that appears from the evidence is that the applicants refused to make over possession of the field to the complainant when he made a demand for the return of the field. This does not necessarily mean that the applicants intended to annoy, insult or intimidate the complainant or that in entering upon the fields their intent was to commit any offence. I cannot maintain the order of conviction. The application is allowed, the conviction and sentence are set aside and the applicants are acquitted. The fines if paid shall be refunded. As the conviction of the applicants has been set aside, no question of restoration of possession under sec. 522 of the Code of Criminal Procedure arises. The order regarding restoration of possession is, therefore, also set aside. .;