1. The petitioners have been convicted under Ss. 143 and 297, I.P.C, and have been sentenced to various terms of imprisonment and fine.
2. The charge against the petitioners was that they caught and destroyed fish from the bed of a tank with the object of wounding the feelings and insulting the religion of the Jains to whom the tank is a place of worship. The petitioners are the servants and tenants of the zamindar. It is found that the zamindar is the owner of the tank and it is not disputed that the tank is in the possession of the zamindar. But the Record of Bights is to the effect that although the tank is in the possession of the zamindar, still no one can catch fish in the tank and that the Jains have the right to preserve and protect the fish in the tank. In other words, the Jains have a right to prevent the owner of the tank from utilizing it in a particular way. In other words, they have an incorporeal right over the tank. The appellate Court says:
“So far therefore as this right and the right of using the tank as a place of worship are concerned, the Jains are undoubtedly in possession of the tank.”
3. I do not at all agree with this view of law. In my view, upon the facts found and on the Record of Rights the Jains are certainly in possession of an incorporeal right, but it cannot be said that they are in possession of the tank.
4. That being so, conld the petitioners have been convicted under S. 297, I.P.C? S. 297 runs as follows:
“Whoever with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted, thereby commits any trespass in any place of worship, or on any place of sepulture, or any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”
5. It will be seen that the gist of the offence is trespass. Therefore in my view before there can be a conviction under S. 297, I.P.C, it must be proved that there was a trespass by the accused persons with the intention and in the places mentioned in S. 297, I.P.C
6. I agree with the view which has very often been expressed that the word “trespass” in S. 297 cannot be construed by reference to S. 441. But I wholly differ from the view which has been taken. Certainly in one case which was cited before me by the learned Assistant Government Advocate, that it means merely any injurious act. It is, in my opinion, a well-settled rule of construction that where the legislature uses in an Act a legal term which has a known significance it must be assumed that the term has been used in that sense and in no other sense. In Queen v. Slator(1) it was argued upon Section 7 of the Corrupt Practices Prevention Act, that the term “indictment” there meant criminal proceedings. The Court rejected the contention. Denman, J., said:
“It always requires the strong compulsion of other words in an Act to induce the Court to alter the ordinary meaning of a well known legal term”
and Bowen, J., added:
“The whole of the argument fails if it is not shown that there is a popular use of the term ‘indictment’ as including information. There it certainly no such popular use ct tide term among lawyers, and if there is among persons ignorant of the law it is an incorrect use of the term.”
7. In my view, “trespass” as a legal term means and has always meant an uni-justifiable intrusion upon property in possession of another person. The learned Assistant Government Advocate says that it means merely an intrusion and nothing more than that, and not an intrusion upon another person's possession. Adopting the words of Bowen, J., I may say that there is certainly no such popular use of the term among lawyers. Is there then a strong compulsion of the other words in that section which would induce the Court to alter the well-known meaning of the legal term? In my opinion there is not. The whole section can be read consistently by giving to the word “trespass” that meaning which has always been given to it in law.
8. The offence would then be committed if a person, with the intention set out in S. 297, commits any unjustifiable intrusion in any place of worship, to take the case which is before us, in the possession of another person. That is the way in which I read S. 297.
9. In this case the tank was not in the poesession of the Jains and therefore, in my view, an offence under S. 297 has not been committed by the petitioners. It is conceded that if the conviction under S. 297 fails, the conviction under S. 147 must necessarily fail. I would therefore set aside the conviction and sentences passed on the petitioners and direct that the fines, if paid, be refunded.
V.S/R.K
10. Conviction set aside.