ORDER
1. In this case we are asked to review the order of the Joint Magistrate of Nandyal confirming the conviction and sentence imposed on petitioners by the Sub-Magistrate of Kalwa for an offence under Section 448, Indian Penal Code (house trespass).
2. The facts of the case are simple. Complainant and his wife who were sleeping in their house, the door of which was open, awoke in the dead of night and discovered that some persons were inside the building. An alarm was raised and these persons were subsequently found to be petitioners. A dagger, which does not belong to the inmates and which, it is inferred, was brought by the petitioners, was found in a corner of the house. 1st petitioner was not on good terms with complainant, and had, on the previous afternoon, taken part in getting his house searched for forest produce. Petitioners did not set up any innocent motive for their presence in the house under the circumstances deposed to by the prosecution witnessess, but attempted to shew that they were dragged into it and confined against their will - a plea which both courts found to be false.
3. Both courts found that petitioners were found trespassing in the house under the circumstances set forth above; and that that they bad entered it with intent to commit an offence of some kind, though it was impossible to say what offence. The findings are practically identical though the Sub-Magistrate thought it probable that the intention of petitioners may have been to introduce forest produce - a suggestion which the Joint Magistrate rejected. The only ground advanced for interference is that the lower courts have not found the existence of any intent on the part of petitioners, such as is necessary under Section 445, Indian Penal Code, to constitute the offence of criminal trespass.
4. Authorities have been quoted on both sides. The chief reliance of petitioner's vakil is on Regina v. Rayapadayachi I.L.R. (1896) M. 240, which has been followed in Criminal Revision Petitions Nos. 256 and 349 of 1909 (reported in 6 M.L.T., p. 262) and which itself follows an earlier case : Regina v. Durgayya (1882) Weir 1 524. The latter case, as well as a still earlier one cited by the Public Prosecutor, viz., Regina v. Samban (1881) WCR 1 533, is reported in Weir's Criminal Rulings, and the Public Prosecutor also relies on the remarks of Benson J. in Sellamuthu v. Karuppan : (1911)21MLJ161 and on the rulings in Emperor v. Lakshman Raghunath I.L.R. (1902) B.558 and Golap Panday v. Boddam I.L.R. (1889) C. 715. In considering the question before us it is necessary to remember that the. intent required by Section 446, Indian Penal Code, may be of two kinds - (a) to commit an offence; (b) to intimidate, insult or annoy. In the present case the finding of both Magistrates is that the intent was to commit an offence. They have not even discussed the possibility of an intent to intimidiate, insult or annoy, much less found its existence. We shall deal with the case on their findings, to see if they are warranted by the evidence and if they ate sufficient to support a conviction.
5. It has been suggested that the rulings in the two cases reported in Weir Regina v. Durgayya (1882) Weir, Vol. I, 524 and Regina v. Samban (1881) Weir's Cr. Rulings, Vol. I, p. 533 are irreconcilable and this appears to be the view taken in Regina v. Rayapadayachi : (1911)21MLJ161 . But, with great deference to the learned Judges who decided the latter case, we do not think there is anything inconsistent in the earlier ruling. In Samban's case (1881) Weir's Cr. Rulings, Vol. I, p. 533 the Chief Justice and Kindersley J. laid down that it is sufficient if the evidence leaves no reasonable doubt that the accused intended to commit an offence of some kind and that the court need not be in a position to say what specific offence it was. Nothing contrary to this is expressed or apprently intended by the Judges in the other case decided nine months later. The salient feature distinguishing Durgayya,s case (1882) 1 Weir, 524 is that the Magistrates appear to have recorded no finding at all as to accused's intent. All that the learned Judges seem to say is that intent must be expressly found and not left to inference. The judgment in Regina v. Rayapadayachi I.L.R. (1896) M. 240 deals with the matter from the point of view of an intent to annoy, not to commit an offence, and lays down that the primary and not the constructive intention of the trespasser is all that has to be considered. This view is followed in 6 M.L.T. 262 and dissented from by Benson J. in Sellamuthu v. Karuppan : (1911)21MLJ161 . The Bombay and Calcutta cases are against it. But in as much as all these cases simply consider an intent to annoy or intimidate, we are not here concerned with them. The fact remains that the ruling in Regina v. Samban (1881) WCR 1 533 has never been overruled or even dissented from (except under what seems to us to be a misapprehension) and we can find no reason for not following it.
6. Holding this view we must decline to interfere. The facts in this case are practically identical with those in Regina v. Samban (1881) WCR 1 533, indeed the dagger incident makes the present case somewhat the stronger of the two. We cannot say that the lower courts were not justified in finding on the evidence that the accused must have entered the house (with the intention of committing some offence) and this is all that is required.
7. The petition is dismissed.