Calcutta High Court
Mullukchand Sheikh And Anr. vs The King on 14 July, 1948
Equivalent citations: 1949CRILJ135, AIR 1949 CALCUTTA 104
ORDER Roxburgh, J.
1. This is a rule against an order of conviction under a. 297, Penal Code, The petitioners are father and son. The father was sentenced to rigorous imprisonment for one day and to pay a fine of Bs. 100. The son was sentenced to be detained till the rising of the Court.
2. We should here point out that the learned Magistrate apparently was under the impression that rigorous imprisonment for one day and detention till the rising of the Court were different punishments, and there has been some trouble in the lower Court because the learned Magistrate wished to insist on sending the accused to jail. We should point out that in the case of imprison-ment for one day, as the day on which the sentence is passed counts as one day, the accused could not be detained in jail on a warrant issued: for such a period. In other words, there should be no further trouble on this point. The accused must be taken to have suffered this imprisonment.
3. The only point urged before us was that Section 297, Penal Code, was not applicable to the facts, as what had been done did not amount to criminal trespass. The prosecution case was that the accused had disturbed bricks on the tomb of two ancestors of the complainant. The trial Court found as a fact that the bricks had been disturbed and that the intention clearly was to wound the feelings of the complainant. The word "trespass" used in Section 297, in our opinion, is not to be interpreted with any reference to Section 141, Penal Code. (Vide the case of Jhulan Sain v. Emperor 40 cal. 548). The facts here found, that the accused removed bricks from the grave, establish that the accused committed trespass within the meaning of the word as used in B. 297. The rule is accordingly discharged.