JUDGMENT 1. This was a Reference under sec. 438, Or, P. C, made by D. P. Bagchi, Esq., 2nd Additional Sessions Judge of Mymensingh, on the 30th October 1917, recommending that the order of A.P.M. Abdul Ali, Esq., Deputy Magistrate of Mymensing, dated 24th August 1917, convicting Accused, Petitioner, under sec. 122 of the Railway,; Act, and sentencing him to pay a fine of 4 annas be set aside for reasons set forth in the Reference. The Reference is in the following terms :- The Petitioner is a pleader of the Courts here. He was prosecuted for trespass under sec. 447, I.P.C. and sec. 122, Rail ways Act, at the instance of Mr. Bagley, Chief Engineer and Agent of the M. B. Railway. The case for the prosecution was that on the afternoon of July 15th, the Petitioner had unlawfully entered upon the Railway and persisted to remain there in spite of being asked to leave. The defence was that the Petitioner was not a trespasser as he was going to see Mr. Mukherjee, the confidential clerk of Mr. Bagley, who had opened a Business School in the Railway premises with the permission of Mr. Bagley, to consult him regarding the admission of a relation of his into the said Business School. The Deputy Magistrate has convicted the Petitioner" under sec. 122 of the Railways Act and has sentenced him to pay a fine of four annas. 2. In my opinion the conviction is wrong. The Petitioner has been convicted under sec. 122 of the Railways Act which runs as follows :- (1) If a person unlawfully enters upon a Railway he shall be punished, etc. (2) If a person so entering refuses to leave the Railway on being requested to do so by any Railway servant, etc., he shall be punished, etc. 3. The essence of the offence under both the clauses of this section is unlawful entry. Mere unlawful entrance makes the offender liable to a fine of Rs. 20. The entrance being unlawful, if the offender refuses to leave on being requested to do so, his offence becomes aggravated and he renders himself liable to a fine of Rs. 50. The word "unlawful" has not been defined in the Act. It has its ordinary meaning which in the present case is entering against the will or without the permission of the owner. 50. The word "unlawful" has not been defined in the Act. It has its ordinary meaning which in the present case is entering against the will or without the permission of the owner. There is no finding that the accused had entered unlawfully. The Deputy Magistrate seems to think that though the entry was lawful, it became unlawful when he refused to leave. The use of the word " so " in cl. 2 makes such a conclusion untenable. It is unlike criminal trespass as defined in sec. 441, I.P.G. There if a person having lawfully entered unlawfully remains with intent to intimidate, insult, or annoy or to commit an offence, he is guilty of criminal trespass. 4. Here under the Railways Act criminal intention has no place. Unlawful entry constitutes the basis of the offence under both the clauses. If the entry was lawful, his refusal to leave on being desired to do so would not make his original entry unlawful, nor would it make him guilty under cl. 02), which is but an aggravated form of the offence under cl. (1). 5. Even conceding that the word unlawful means, as the Deputy Magistrate thinks, " remaining on being asked to leave " the facts as disclosed by the evidence adduced do not justify the conviction. It is clear from Mr. Mukherjee's evidence that the Petitioner was coming to see him about the admission of his nephew in the Business School which Mr. Mukherjee had started in the Railway premises with the permission of Mr. Bagley, the Agent. So a person going to see Mr. Mukherjee on business in connection with his school must have express or impiled permission of Mr. Bagley to come upon the Railway. So the Petitioner's going there cannot be said to be unlawful. He was, as he alleges, assaulted on the way by one Mr. Bignold. He was complaining of this to Mr. Novis, an Assistant Engineer of the Railway. Mr. Novis brought to his notice that he was a trespasser and showed him the notice board. The Petitioner said that he was not a trespasser and was arguing the matter with Mr. Novis, when he, the latter, peremptorily wanted to know whether he would leave or not. The Petitioner accordingly went away. This does not show that he refused to desist from the trespass, if he had committed any. The Petitioner said that he was not a trespasser and was arguing the matter with Mr. Novis, when he, the latter, peremptorily wanted to know whether he would leave or not. The Petitioner accordingly went away. This does not show that he refused to desist from the trespass, if he had committed any. The conviction is therefore wrong in law and is further not borne out by the facts admitted by the prosecution. I would therefore recommend that the conviction and sentence be set aside. 6. Babus Dasarathi Sanyal, Gobinda Chunder Dey Roy and Birendra Kumar Dey for the Accused. The JUDGMENT OF THE COURT was as follows :- In this case we think that the second Additional Sessions Judge is clearly right and that the conviction and sentence on the accused Kumud Kanta Chakravarti were wrong. We accordingly accept the Reference and set aside the conviction and the sentence passed on the accused. The fine, if paid, will be refunded.