Bed Prakash Sharmah vs The State of Assam

A conviction u/s 447 of the Indian Penal Code by the trial Court which has been upheld by the learned Sessions Judge has brought the Petitioner before this Court, though the sentence awarded is a fine of Rs. 200/-, because the learned Against the judgment and order dated 30.9.81 passed in Criminal A Appeal No. 12 (K-4) of 1980 by the Serious Judge, Kamrup, Gauhati upholding the conviction in G.R. Case No. 364/77 passed by Shri G.C. Deka on 30.10.80.

Before we come to the order of eviction, let it be seen whether the prosecution has established the guilt of the Petitioner u/s 447 of the Indian Penal Code. The learned Sessions Judge has upheld the conviction by observing that occupation or illegal occupation of a vacant land in the absence of real person would itself amount to criminal trespass as that would surely be a cage of intimidation and annoyance. While thus stating the law, I am afraid the learned Sessions Judge has committed a palpable mistake in law. Every entry upon a vacant land, even if illegal, cannot be a criminal trespass inasmuch as when Section 441 speaks of entering on property, with intent to commit an offence or to intimidate, Jesuit or annoy any person in possession of the property, it speaks of the main intention and not any subsidiary intention, that may also be present. As stated in Mathuri and Others Vs. State of Punjab, 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 satisfy itself that causing such an annoyance, intimidation or insult was the aim of the entry and 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.

The facts admitted even by the prosecution in the present case are that the Petitioner was in occupation of the land in question at least for a month, if not more when the criminal law was set in motion. The F.I.R. lodged on 2.2.77 itself says that the Petitioner bad illegally occupied the land and was running a hotel there and was even constructing houses for renting out to other persons. A prayer was, therefore, made to see that the land is vacated by the Petitioner. Ex facie this shows that recourse to criminal law was being taken to evict the Petitioner from the land which, according to the informant, was being illegally occupied by him. It cannot be said on these broad facts that the Petitioner bad come to occupy the land with the aim of committing any offence or to cause annoyance, intimidation or insult. The finding of the learned Sessions Judge that the occupation of the present land by the Petitioner had amounted to criminal trespass is therefore erroneous in law. His further order that he should be evicted because, according to the learned Sessions Judge, it was a case of intimidation cannot also be sustained. Only because a person has refused to vacate the land on being requested by the owner, it cannot be said that the same amounts to criminal intimidation authorising a criminal Court to restore possession by evicting the occupant as permitted by Section 456, Code of Criminal Procedure. Were it to be otherwise, any landlord could have approached the Criminal Court to seek evict-ion of his tenant.

This apart, Shri Phukan urges for the Petitioner that the present was a case of bona fide claim of right. He refers to the statement of the accused-Petitioner u/s 313, Code of Criminal Procedure and draws may attention to the evidence of the D.W. 1 The learned Counsel also refers to the statement of P.W. 1 in cross-examination, to whom the land belongs, that the accused had sought Raiyati Khatian in respect of this land which prayer was, however, rejected on 8.2.78. Relying on these materials, Shri Phukan submits that the present was a case of bona fide claim of right and refers to Manikchand Birdhichand Sharma Vs. The State of Maharashtra and Another, The learned Public Prosecutor submits that the materials on record do not establish the case of the Petitioner that he had been given settlement by the husband of P.W. 1 inasmuch us the Mandal who is said to have shown the boundary was not examined, and D.W. 1 is not a fully reliable witness for reasons given by the Courts below. The question, however, is not whether the case of the Petitioner that be was given settlement is correct or not in so far as the present proceeding is concerned. The question rather is whether he was trying to remain on the land because of any bona fide claim on his part. The effort of the Petitioner to obtain raiyati khatian would indicate that he was trying to assert his right on the land. Be that as it may, as from the materials on record it cannot be held if the present was a case of criminal trespass for reasons given above, the conviction cannot be sustained and the same is set aside. Along with it falls the order of eviction.

In the result, the petition is allowed as aforesaid.