JUDGMENT 1. The Petitioners were charged with the commission of an offence under sec. 147, I. P. C., but were convicted under sec. 447 of the Code for trespass, without any charge under that section being framed against them or without being called upon to plead to a case of trespass. The case against them was that their land lay contiguous to the land of the Complainant, and in order to encroach on the Complainant's land they demolished a certain ail and constructed another on the land of the Complainant and thereby included within their own land the land belonging to the Complainant. The Complainant set up a case of rioting against them. But that case was not believed by the Magistrate who summed up his findings in the following terms:--"I am satisfied that both the Accused had broken the common ail that day and had incorporated some land belonging to Bonai (P. W. 2) in their own land. The evidence that Accused party had numbered five or more than five that day is not very convincing to me, and I am not in a position to hold that the Accused had formed the members of an unlawful assembly on the day of alleged occurrence." After arriving at this conclusion, the Magistrate convicted the petitioners under sec. 447, I. P. C., for criminal trespass and sentenced them to pay a fine of Rs. 50 each. Against their conviction and sentences, the Petitioners moved the Sessions Judge and then this Court and obtained this Rule on the Deputy Commissioner of Sylhet to show cause why the conviction of the Petitioners under sec. 447, I. P. C., should not be set aside on the ground that the Petitioners having been charged under sec. 147 only and there being no charge nor any complaint under sec. 447, I. P. C., the conviction of the Petitioners under sec. 447 was illegal. The learned Government Pleader appearing on behalf of the Crown maintains that under sec. 238, Cr. P. C., sub-sec. (2), a person charged with an offence may be convicted of a minor offence, though pot charged with it, if the facts proved justify a conviction for a minor offence. In this case, had the common object constituting unlawful assembly been to commit criminal trespass, the conviction under sec. 447 without a charge having been framed against the Petitioners might have been legally valid. In this case, had the common object constituting unlawful assembly been to commit criminal trespass, the conviction under sec. 447 without a charge having been framed against the Petitioners might have been legally valid. But the common object described in the charge is to take forcible possession of Bhanoo Namasudra's land and of assaulting him and ethers. This common object does not clearly make out a case of trespass. In a case of trespass, before a conviction is obtained, Prosecution must establish on the part of the trespasser an intention to commit an offence, or to intimidate, insult or annoy any person in possession of the property on which trespass has been committed. In the present case, none of these elements is present. As an authority bearing on this case we may cite the case of Queen v. Salamut Ali 23 W. R. Cr. 59 (1875). The convictions, therefore, are clearly bad and must be set aside. This Rule is made absolute. The fine, if paid, will be refunded.