Kanai Lal Adhikary vs Jogendra Nath Mondal

Bhattacharya, J.—The three accused Petitioners were convicted u/s 448 of the Indian Penal Code and sentenced to pay a fine of Rs. 100 each and in default suffer rigorous imprisonment for four months each. Out of the fine, if realised, Rs. 200 was directed to be paid to the complainant opposite party.

The case of the complainant opposite party inter alia was that he had purchased on October 10, 1958 the shop-room in question together with the land for a consideration of Rs. 2,100 (Rupees: two thousand and one hundred only) from the accused Petitioners and one Nitai Adhikari and that while he was in exclusive possession of the shop-room, after his tenants finally left on 2nd Baisakh, 1366 B.S., on tie 9th/10th of Baisakh, 1366 B.S., the accused broke open the lock and removed the complainant''s articles such as mustard oil and oil cakes which had been kept inside it. The complainant, it was further stated, on being informed came and protested but the accused persons pushed him out of the shop-room.

The defence, inter alia, was that the complainant had never been in actual possession of the disputed shop-room but that the accused all along possessed it. The further contention, was that the shop-room had not been sold but only mortgaged to the complainant and that an Ekrarnama had been executed on the same date simply to evade the provisions of the Money Lenders Act.

Mr. Roy, learned Advocate for the Petitioners, has urged in the first place that there was no proper examination u/s 342 of the Criminal Procedure Code. The question asked by the learned Magistrate was whether having heard the evidence the accused had anything to say, and the answer was not guilty. The details were not asked. It should be pointed out initially that the question of prejudice was mooted for the first time in this Court. No such point was raised in the appellate court. When there is no absolute illegality or initial lack of jurisdiction, the question of prejudice in a criminal trial should be raised at the earliest stage of the proceedings, as was observed in K.C. Mathew v. The State of Travancore-Coohin (1956) S.C.A. 175. It is well-settled, moreover, that every omission in regard to compliance with the provisions of Section 342 of the Code of Criminal Procedure does not necessarily vitiate a trial Reference in this connection may be made to the cases of Ajmer Singh v. The, State of Punjab (1953) S.C.A. 329, BeJoy Chand Patra v. The State of West Bengal (1952) S.C.A. 69. In the instant case the facts were simple. The accused were Defendants and the only question was whether the complainant had actual possession or whether possession had remained with, the accused even after the execution of the sale deed (which was followed by a deed of agreement by which it was arranged that if by a certain date the consideration money would be refunded entirely by the accused, possession would go back to them). In the sale deed it was definitely mentioned by accused that the complainant was being given delivery of possession. It cannot be said that there was any actual or real prejudice in the circumstances. Moreover, the question of prejudice has been raised at a very late stage. This objection of Mr. Roy, therefore, fails.

The charge finally framed was one u/s 448 of the Indian Penal Code which is triable as a summons case. Originally, there were other charges also-under Sections 380 and 454, I.P.C. The learned Magistrate framed charge to the effect inter alia that on or about the 9th day of Baisakh, 1366 B.S. the accused committed house trespass by breaking the lock attached to the doors of the shop-room of the complainant and were continuing to occupy the said shop-room and caused annoyance to the complainant. A charge was initially framed on April 6, 1959'' but was amended on September 19, 1959'' by the addition of the words inter alia that the accused continued to occupy the said shop-room unlawfully. As the order-sheet, dated October 19, 1959, will show, the defence declined to cross examine the complainant and. other prosecution witnesses and also declined to adduce-further evidence. In the circumstances it cannot be said that there has been any prejudice to the accused. The objection also cannot be sustained.

Mr. Roy has next urged that as the shop-room was under lock and key at midnight and the complainant was not present, there could be no question of causing any annoyance to the complainant. For this he has relied on Bata Krishna Ghose v. The State AIR (l957) Cal. 385. It was held there in the facts of the particular case that if the complainant was not present to be intimidated, insulted or annoyed, there could be no conviction unless it could be found upon evidence that there was intent to commit an offence. Reliance was placed on Satish Chandra Modak v. The King (1949) 53 C.W.N. 402. In that case it was held inter alia that the intent to annoy and intimidate must be not with respect to any and every person connected with the property, but with respect to any person in actual possession of such property. Now, in my opinion, actual possession does not necessarily connote physical presence of the person in possession. If that were so, any criminal with impunity would break into a shop-room during night when it has to be closed, without incurring the offence of trespass. Similarly, an owner, absent from his house or flat for a few minutes or a few hours, would find himself ousted. The concept of possession is not a fine one. It varies according to circumstances, time, place, nature of the thing, opportunity or circumstances of the owner and various other factors.. What matters is the intention to commit an offence or to intimidate, insult or annoy any person in possession of such property, as, laid down in Section 441, I.P.C. what actually takes place or does not happen is not directly relevant.

If Bata Krishna Ghose''s case (supra) purports to lay down a general law about physical presence of the person in possession in order that the intention may be carried out in practice, I would with due deference differ. In Mohanta Lal Das v. Monomohan Sarma (1950) 85 C.L.J. 200 : 85 C.L.J. 200, it was held inter alia that padlocking newly built vacant rooms by the owner is not an act of mere juridical possession but an act of actual physical possession and forcible possession by others by breaking Open the padlocks during the owner''s absence and refusing to vacate, as in the instant case, when called upon to do so by the owner on his return amounts to intimidation, insult or annoyance to the owner and constitutes criminal trespass. Mr. Roy has referred to Soita Biswal v. Dochhi Stri (1907) 12 C.W.N. 269, to show that in the instant case also there was mere civil trespass. In Soita Biswal''s case (supra), however, the accused took possession of the house in the occupation of the complainant and established there a boy alleged to be the adopted son of the complainant''s father. It is not clear but possibly there was a bona fide claim of right in that case. But in the instant case both the courts below found that possession at the relevant time was with the complainant. His goods kept there were thrown at and damaged. That possession was not symbolical or merely juridical. There was not an iota of satisfactory evidence to show that the consideration amount had been paid up in accordance with the Ekrarnama. No question of bona fide claim of right arises. The facts elicited at trial clearly established the criminality of the act of the Petitioners The facts of the other case referred to by Mr. Roy Debi Prasanna Ghose v. Joy Narain Jhunjhunwalla (1949) 53 C.W.N. 822, are also clearly distinguishable from those of the present case. The objection also of the Petitioners must fail.

Accordingly, the conviction must stand. The three Petitioners are brothers and a nephew. In the circumstances of the case the amount of fine is reduced to Rs. 50 (Rupees fifty only) each and in default each Petitioner will suffer rigorous imprisonment for a period of three weeks. The entire fine, if any, has been paid or realised, be refunded.

With the above modification the Rule is discharged.