Anantaram Patnaik vs State of Orissa

V. Gopalaswamy, J.—This revision is preferred against the judgment of the learned Sessions Judge. Puri. dated 2-8-1983. in Criminal Appeal No. 52 of 1983, confirming the order of the Chief Judicial Magistrate. Puri in G. R. Case No. 248 of 1979, convicting the Petitioner u/s 448. I.P.C. and sentencing thereunder to pay a tine of Rs. 750/- in default to undergo simple imprisonment for three months, and directing that from out of the fine amount, if realised, a sum of Rs. 500/ should be paid to the informant (p.w. 2) as compensation and further directing the delivery of the vacant house to the inform ant u/s 456, Code of Criminal Procedure

From the material placed on record and the recitals in Ext. A. the prosecution has conclusively established that, in execution of the decree passed by the House-Rent Controller in H. R. C. Case No. 19 of 1978, there was symbolic delivery of possession of the house in question to the decree-bolder (informant) on 8-10-1978 in the presence of the accused judgment-debtor. The admitted position is that in spite of such delivery of possession of the house to the decree-holder on 8-10-1978, the accused-judgment-debtor continued to be in possession of the house in question. So the point for decision in'' this revision is whether the Petitioner has rendered himself liable u/s 448, I.P.C. by continuing to remain in possession of the house even after it was symbolically delivered to the informant and in spite of his demand to vacate it.

The following observations of this Court in the Full Bench decision of Jayagopal Mundra Vs. Gulab Chand Agarwalla and Others, . are considered material and relevant and hence quoted below:'' "...So far as delivery of possession against the judgment-debtor or any person in occupation on his behalf is concerned, there is no distinction between the two modes of delivery of possession. Law is well settled that as against the judgment-debtor symbolical delivery of possession amounts to delivery of possession. While giving the above Full Bench decisions this Court relied on a Full Bench decision of the five Judges of the Calcutta High Court in Jaggabundhu Mukherjee and Ors. v. Ram Chandar Bysack ILR (1880)5 Cat. 584 (F;B.). which was referred to and approved by the privy Council in Sri Radha Krishna Chanderji v. Ram Bahadu and Ors. AIR 1917 P. C. 197 In the present case admittedly the informant (decree-holder) obtained symbolical delivery of possession of the house in question in the presence of the Petitioner (judgment-debtor) and so as against the Petitioner that would operate as actual delivery of possession to him.

For convenience of ready reference the provisions of Section 441. I.P.C. are quoted below:

Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate insult or annoy any person in possession of such property of having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate insult or annoy any such person, or with intent to commit an offence is said to commit criminal trespass

Section 441, I.P.C. has three essentials:

(1) Entry into or upon property in the possession of another.

(2) If such entry is lawful then unlawfully remaining upon such property.

(3) Such entry or unlawful remaining must be with intent (i) to commit an offence; or (ii) to intimidate, insult or annoy the person in possession of the property.

Admittedly the informant (p.w. 2) was the owner of the house in question and the Petitioner was earlier in occupation of the house as a tenant under him. So to begin with the Petitioner''s entry into the house as a tenant was lawful. On 8-10-1978 symbolic delivery of possession was given to the informant (p.w. 2) in the presence of the Petitioner, which operates as actual delivery of possession as against the Petitioner. From the above circumstances, it is established that from 8-10-1978 onwards the informant was in possession of the house and the Petitioner, who, as a tenant, had earlier entered into the house lawfully unlawfully remained in the house, even after the same was delivered to the informant. Thus two of the three essential ingredients of Section 441, I.P.C. which permit of direct proof are proved against the Petitioner.

On a plain reading of Section 441, I.P.C., it is clear that every trespass is not criminal u/s 441, I.P.C. Trespass is an offence only if it is committed with one of the intents specified in the definition of "criminal trespass". The learned Counsel for the Petitioner contended that even if it is found that the Petitioner unlawfully remained in occupation of the house, yet it would not be a case of criminal trespass, unless it can be shown that such occupation was with intent to intimidate, insult,or annoy the informant in possession of the property, Intention is always a matter of inference from the proved circumstances of the case. In this context the learned Counsel for the Petitioner relied on the decision in .the case of Smt. Mathri and Ors. v. State of Punjab 1964 S.C.D.557 : Mathuri and Others Vs. State of Punjab, . The following observations of the Supreme Court made in that decision are considered relevant and hence quoted below:

... The correct position in law may in our opinion be stated thus. In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation of insult was the aim of the entry that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance intimidation or insult and that this likely consequence was known to the person entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation insult or annoyance, being the dominant intention which prompted the entry.

Relying on the above quoted observations of the Supreme Court in Lengu Alias Satchidananda Misra and Anr. v. State ILR 1965 Cutt 71

Another decision cited by the learned Counsel for the Petitioner is The Punjab National Bank Ltd. Vs. Its Workmen, . It is a case where in a pen-down strike the employees of a bank entered the office and occupied their seats and refused to work during office hours and the strike which was peaceful was wholly confined to regular working hours,and the only act alleged against the strikers was that they refused to vacate their seats when they were caned upon to do so by the superior officers. It was held by the Supreme Court that the conduct of the strikers did not amount to criminal trespass u/s 441, I.P.C. as it was found that the sole intention of the strikers obviously was to put pressure on the Bank to concede their demands and that even if the strikers might have known that the strike may annoy or insult the Bank''s officers such knowledge would riot necessarily lead to the inference of the requisite intention.

From the above decisions, cited by the learned Counsel for the Petitioner, it follows that it is one thing to entertain a certain intention and Anr. to have the knowledge that one''s act may possibly lead to a certain result. Before an accused is found guilty of criminal trespass, it must be proved that the dominant intention of the accused was to annoy when he made the entry and it is not enough to show that the accused must have known that such entry is bound to annoy the person in possession.

The learned Counsel for the opposite party relied on Rash Behari Chatterjee Vs. Fagu Shaw and Others, . In the said case the Appellant obtained actual physical possession of the land on 3-2-1963 in execution of the civil. Court decree against the Respondent Fagu Sha and alleged that the Respondents trespassed on the land on 16-2-1963 and 17.2-1963 and made preparations for construction of .bamboo structures. On the above facts the Supreme Court found that the dominant intention of the Respondents was to annoy the Appellant who was in possession of the case land. Even though it was pleaded that the complainant was not present at the time of trespass the Supreme Court rejected the plea and observing that the law does not require that the intention must be to annoy a person who is actually present at the time of trespass, found the Respondents guilty of criminal trespass in this case the earlier Supreme Court decision in Smt. Mathri''s casel (supra) was referred to and relied on.

10 P.A. Chinnaswarny and Ors. v. Chandra Rao S. Kathavukar 1975 Cd. L. J. 1935 (Mad.). when the accused re-entered into the property after delivery of possession of the same to the complainant in execution of the ex parte order of eviction of the Rent Controller it was held that the re-entry was done with the intention of causing annoyance to the complainant. The fact that subsequently the ex parte eviction order granting possession to the complainant was set aside was not considered to be a circumstance in favour of the accused and holding that it has no relevance to the question whether at the time of re-entry the accused had the intention to annoy the complainant, found him guilty of criminal trespass.

The reliable evidence of the informant (p.w. 2) and his son (p.w. 1) shows that though they demanded of the Petitioner to vacate the house immediately after the delivery of the possession of the house through Court, he continued to remain in unlawful occupation of the house. The intention with which the Petitioner thus unlawfully remained in possession of the house has to be inferred from the citcumstances of the present case. In the background of the litigation between the parties, when the other facts and circumstances of the case are considered they leave no room for any doubt that the dominant intention of the Petitioner was to annoy the owner of the house (informant) Thus the third ingredient of the offence of criminal trespass is also proved. Hence, agreeing with the findings of the Courts below, hold that the prosecution could successfully bring home to the Petitioner the charge u/s 448, I.P.C. .

The learned Counsel for the Petitioner contended that the Courts below acted illegally in directing the delivery of possession of the house to the informant u/s 456, Code of Criminal Procedure Section 456 (1), Code of Criminal Procedure is as follows:

Power to restore possession of immovable property (1) When a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation and it appears to the Court that by such force or show of force or intimidation any person has been dispossessed of any immovable property the Court may if it thinks fit order that possession of the same be restored to that person after evicting by force if necessary any other person who may be in possession of the property:

xx'' xx xx xx .

In this context the learned Counsel for the Petitioner relied on Nani Gopal Deb and Another Vs. Bhima Charan Rakshit, a decision of the Division Bench of the Calcutta High Court u/s 522 (1) of ''1898 Code, which corresponds to Sub-section (1) and its proviso of Section 456 of the new Code. In that cas~ the Petitioners were found guilty u/s 448, . I.P.C. . But all the same the order passed u/s 522 (1), Code of Criminal Procedure was set aside, while setting aside the Magistrate''s order u/s 522 (1). Code of Criminal Procedure; the following observations were made:

... It would'' follow that the offence of which a person is convicted must be attended by criminal force or show of force or by criminal intimidation.... As the dispossession concerned took place in the absence of the landlord or his man the dispossession was not attended by any criminal force at show of force or by criminal intimidation...

So keeping in view the scope of Section 456, Code of Criminal Procedure, as indicated in the above referred Nani Gopal Deb''s cases. if the facts of the present case are analysed, it is seen that this is not a case where it can be said that the accused was convicted of an offence attended by criminal force or show of force or by criminal intimidation. Nor is there any material to suggest that the informant was dispossessed of his house property by force or show of force, or by criminal intimidation. Hence it is found that as the two essential conditions for invoking the provisions of Section 456. Code of Criminal Procedure are not satisfied, the order of the Courts passed thereunder is not maintainable and the same is hereby set aside. .

In the result while setting aside the directions given u/s 456. Code of Criminal Procedure, the order of the Courts below convicting and sentencing the Petitioner u/s 448" I.P.C. and directing payment of compensation to the informant is hereby confirmed and accordingly the revision is dismissed.