JUDGMENT Harries, C.J. This is a petition for revision of an order of the learned Additional Chief Presidency Magistrate directing process to issue against the Petitioner under secs. 341 and 448 of the Indian Penal Code. The Petitioner is admittedly the landlord of certain premises which were let to one Pulin Behari Sen Gupta on May 26, 1944, at monthly rental of Rs. 30. The rent was paid up to January or February, 1948, and then the tenant ceased to pay rent. The Plaintiff filed a claim for possession of the premises against the tenant in the Presidency Small Cause Court. But apparently during the pendency of that suit the tenant died. According to the Petitioner efforts were made to trace the heirs of the tenant so as to bring them on the record, but no trace of the heirs could be found. After some time the Petitioner applied to the Magistrate for permission to break open the premises which were a godown and asked that the police be present so that an inventory could be taken of any goods which might be found in the godown. The learned magistrate of course had no jurisdiction to authorise the Petitioner to enter this godown, but apparently the police were instructed to see that the act of entry was committed peacefully. 2. On January 26, 1948, the godown was opened and an inventory was made of all the goods found in it. The goods were kept in the possession of the Petitioner but were later handed over to the Opposite Party. 3. The Opposite Party filed a complaint against the Petitioner and his gomosta and certain others alleging that they were guilty of criminal trespass, of wrongfully restraining the complainant and of theft. 4. The learned Magistrate was not satisfied that any case of theft had been made out, but he thought there was a case for inquiry of criminal trespass and wrongful restraint. 5. The case for the Opposite Party was that he had been for some time a sub-tenant of the tenant Pulin Behari Sen Gupta and that his sub-tenancy was well-known to the landlord, the present Petitioner. 6. If the sub-tenancy was not known to the Petitioner, I do not think that any criminal charge could ever be supported and made out. 7. Mr. 6. If the sub-tenancy was not known to the Petitioner, I do not think that any criminal charge could ever be supported and made out. 7. Mr. Roy on behalf of the Opposite Party has alleged that his client would produce evidence to establish that the landlord did know the existence of the sub-tenancy. But it appears to me that the conduct of the landlord, the present Petitioner, makes it abundantly clear that he could not have known about the existence of this sub-tenancy. 8. He brought a proceeding in the Court of Small Causes and he did not join the sub-tenant. Had he known that there was a sub-tenant the probabilities are that he would have brought proceedings against the sub-tenant alone or against both tenant and sub-tenant. It will be seen that sec. 43 of the Presidency Small Cause Courts Act contemplates this claim fur possession being made against the occupant, that is, the person in possession. That being so, if the Petitioner had been aware of the existence of the Opposite Party the probabilities are that he would have been the sole Defendant or one of the Defendants; yet we find the proceedings were brought against the tenant who died and no mention was made of a sub-tenant. 9. Again, after the death of the tenant and a failure to trace the heirs the, landlord did not act like a man who was aware of the existence of a sub-tenant. His conduct would rather suggest that he was entering these premises, but only after taking precautions in the event of heirs being discovered later. The entry was perfectly open and public, and it would be very difficult to believe that the landlord knew of the existence of a sub-tenant and was really ousting him by acting in the way he did. It seems to me that the conduct of the landlord would compel a Court to hold that at least he was unaware of the existence of a sub-tenant and there is nothing strange in that. 10. If the landlord was unaware of the existence of the sub-tenant, then it appears to me that no crime was committed. The learned Magistrate was satisfied that this was not a case of theft because presumably there was no intention to deprive the true owner of these goods. The conduct of the landlord shows that there was no such intention. If the landlord was unaware of the existence of the sub-tenant, then it appears to me that no crime was committed. The learned Magistrate was satisfied that this was not a case of theft because presumably there was no intention to deprive the true owner of these goods. The conduct of the landlord shows that there was no such intention. It appears to me that if no theft was committed then no other crime was committed either. 11. To be guilty of an offence under sec. 441 the complainant would have to show that the landlord entered upon property in his possession with intent to commit an offence or to intimidate, insult or annoy the complainant. If the landlord genuinely believed that on the death of the tenant there was no one in existence who could inherit this tenancy and entered under that belief, he certainly did not enter with intent to commit an offence or with intent to annoy a sub-tenant of whose existence he was ignorant. It appears to me that before any offence under sec. 441 could be made out the Court would have to be satisfied that the existence of the sub-tenant was known to the landlord and, as I have said, every indication points to the contrary. Similarly with the offence under sec. 341 that is wrongful confinement. The basis of the offence is wrongful restraint. To be guilty of wrongful restraint a person must voluntarily obstruct any person so as to prevent that person from proceeding in any direction in which the person has a right to proceed. It seems to me that the act must be voluntary. Here if there was any restraint it was accidental. I do not think that a man can be guilty of restraining a person of whose existence he is wholly unaware. There must be mens rea to establish such a charge and there is no such mens rea here. 12. We are informed by Counsel for the Plaintiff that the Petitioner has filed a suit on the Original Side of this Court praying for a declaration that the Opposite Party has no interest in these premises. There is in that suit no claim for possession because apparently the Petitioner is still in possession and no suit or proceeding has ever been brought against him by the alleged sub-tenant. There is in that suit no claim for possession because apparently the Petitioner is still in possession and no suit or proceeding has ever been brought against him by the alleged sub-tenant. Such conduct of the subtenant also goes far to show that there is no real right to possession as against the landlord. 13. It appears to me that this is really a civil dispute and the matter should have been decided in the Civil Courts. Proceedings in the Criminal Courts on facts such as the facts of this case are really an abuse of the process of the Criminal Courts. The Criminal Court was never intended to be and is not a Court where summary applications can be made for possession. I have no doubt whatsoever that these cases are brought in the Criminal Courts in order to bring pressure upon the accused to give the complainant possession. 14. A very similar case came before S.R. Das, J. and myself in Sree Singh v. Panchu Singh -(1) Unreported decision Cr. Rev. No. 658 of 1948 in which we held that where the accused could not have any of the intents required for criminal trespass no prosecution would lie. I had already dealt with the same question sitting alone in Nizam uddin v. Jinnat Hossain (2) and the Bench in Criminal Revision No. 658 of 1948, expressly approved of that single Judge decision. It appears to me that that Bench decision covers this case as this is in reality a civil dispute which ought to be decided in the Civil Courts. 15. That being so, I would allow this petition and quash the proceedings against the accused in this case. The proceedings are quashed and the accused are acquitted. 16. The Rule is made absolute. 17. Learned Advocate for the Opposite Party appeared to think that any decision adverse to him would affect his title to the goods. Nothing that we have said in this judgment can possibly affect his title to the goods if he has a good title. This Bench merely holds that it would be impossible in this case to make out a sufficient criminal intent against the Petitioner and that can in no way affect his title to the goods. That must rest on evidence quite apart from anything said in this case. Let the counter-affidavit filed in Court to-day be kept on the record. This Bench merely holds that it would be impossible in this case to make out a sufficient criminal intent against the Petitioner and that can in no way affect his title to the goods. That must rest on evidence quite apart from anything said in this case. Let the counter-affidavit filed in Court to-day be kept on the record. J.P. Mitter, J. I agree.