Jayshree Tea and Industries Ltd. vs Rupeswar Gogoi and Another

K. Lahiri, J.—The Appellant-Complainant (SIC) a large Tea Estate whereas the Respondents-accused are poor pennants, This Is an appeal against the order of acquittal, The alleged offence is for criminal (SIC) of about 10 (SIC) of land.

The (SIC) or (SIC) witnesses in support of the case and the learned (SIC) the accused holding inter alia that the a accused had the right to possess the land and no question of (SIC) arose. The foundations of the conclusion is the admission of the complaint that the accused persons had 2 khatians obtained from the Revenue Authorities showing that the accused bad been in possession for over 25 years. The learned Magistrate found that the accused bad kacha khatians which authorised them to possess the land.. Khatians are issued by the Revenue officials in recognition of the actual physical possession of "khatiandars". The accused had claimed that Robin Gogoi (one of them) bad a khatian for 5 bighas and 19 lessas of land and he was in possession of the parcel of the land for over 25 years, and Rupeswar Gogoi, the other accused claimed that he was a rayat and was in occupation of 6 bighas 3 kathas of land for over 25 years under the complainant Tea Garden. We have perused the application of the complainant for special leave to appeal against the order of acquittal wherein the complainant admits that kacha khatian bad been issued in favour of the accused in respect of the disputed land arid that the aforesaid persons had been occupying the land for the last 25 year vide para 14 of the petition at para 48 of the paper book. The complainants state in para 15 of the petition that they took steps'' to set aside the order of Sub-Deputy Collector in respect of entries. Therefore, the accused persons had backing of documents which bear up their claim of the light of possession.

The essential ingredients of offence u/s 448 are to be found in Section 441 I.P.C. Entry upon land (SIC) under a bonafide claim of right, however III founded in taw, the claim does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupants. To establish criminal trespass the prosecution must prove that the real or dominant instant of the entry was to commit an offence or to insult, intimidate or annoy the occupant and that any claim of right was more cloak to cover the real intent for or at any rate constituted no more than a subsidiary intent. This is the law stated by Sri John Beaumont speaking for the Privy Council in Sinnasamy v. King 1951 CLJ 173, If the entry upon the land is on bonafide claim of right but the claim is ill-founded in law the action does not become criminal it may at best be a civil trespass. The ingredients referred in Section 441 must be established by the prosecution. It must show that the real or dominant intent of the entry was one of the ingredients set out in Section 441. One of us (Lahiri, J.) dealt with the question in Nishi Kanta Das v. State of Assam 1977 ALR 47 thus:

"Trespass" in its ordinary connotation means. to enter in lawfully, infringe, intrude, invade, encroach or impinch. Trespass is a genus. It may be civil trespass or a criminal trespass. Every type of trespass is not criminal trespass Section 441 I.P.C. does not postulate any every unlawful entry to be criminal trespass, The entry must be with the necessary intent envisaged in Section 441 I.P.C. The Section contemplates three necessary or essential ingredients: (1) there must be entry into or upon a property in possession of another; (ii) even if such entry is lawful, it may amount to criminal trespass, if the person entering there, unlawfully remains upon such property and (iii) such entry as aforesaid or unlawfully remaining as stated above must be with the intent (a) commit an offence, or (b) to intimidate insult or annoy the person in possession of the property.

Therefore, in my opinion, a mere entry upon a land is not a criminal trespass. The entry must be with the intention set forth in Section 441, I.P.C. the claim of the accused person entering upon the land may even be fill-founded. If the claim is well founded, question of approaching a criminal court or bringing a case against them does pot arise at all. Even if the claim is ill-founded in law but he acts upon such ill-founded right, he cannot be made liable u/s 447 of the I.P.C. The reason is obvious, there his intention cannot be to cause annoyance, insult or intimidation but to exercise his bonafide claim of right having no support in law. It is the evil intention of the accused that is punished.

While dealing with an offence u/s 379 I.P.C. the Supreme Court in Ram Ekbal Rai and Others Vs. Jaldhari Pandey, held that when "the bonafide claim" of the accused about possession of the land could not be negatived by the prosecution the accused could not be convicted of the offence.

We sum up that in the instant case the peasant-accused persons have suffered a lot. They have produced the documents to satisfy the court about their bonafide claim of right to possess the land, and the learned Magistrate was justified in acquitting the accused on the evidence which he has scrutinized very minutely, We, do not find any ground to interfere with the findings of the learned Magistrate.

Mr. P.K. Goswami submits that the "khatians" were not final as they were not published. The facts stated in the "kacha khatians" are always rebuttable, Evidence could be given and were given in the instant case to show that the entries in the kacha khatians were incorrect but the learned Magistrate did not consider that fact. However, we find that the prosecution; did not produce or exhibit the order of cancellation of the kacha khatians before the learned trial court. The apart, the cancellation of the khatians, as stated by Mr. Goswami the year 1976 long after launching of the prosecution.

In our opinion the moot point is whether the accused had bonafide intention on the date of the alleged commission of the offence, There is no material to show that the entries were false and/or the accused were parties to obtain false or fictitious kacha khatians. There is no material to show that the learned Sub-Deputy Collector who had issued the kacha khatians in favour of the accused acted "malafide". Nor is there any material that the peasant-accused had even any reason to doubt the bonafide of the documents furnished to them. The documents per se show that they could have made use of them for the purpose of asserting the right of possession.

Under the provision of Assam Land and Revenue Regulation a kacha kchatians has probative value to show that the khatiandar has the right as contained in the entries of course, until it is set aside by a volid order. Kacha khutian established legal right to possess, use and occupy the land in respect of which it is granted, Any action for possession by the holder of kacha khutian, cannot be said to be malafide action, In any view of the matter, we do not find any material in the instant case to show that the claim of right asserted by the accused was a more cloak to over the real or dominant Criminal intent prescribed in Section 441 I.P.C.

We hold that the findings reached by the learned Magistrate were just, proper and according to known principle of Criminal jurisprudence. which require no interference at this end.

In the result, the appeal stands dismissed.