Mida Dass and Others vs The State

Teja Singh, C.J.—On the report of one Sampuran Singh the Police sent up a case u/s 448 I.P.C. against six persons of those two died during the pendency of the proceedings and the remaining four, viz. Midha Dass, Arjan Dass, Hardwari Lal and Prem Dass, were convicted and sentenced to one month''s rigorous imprisonment each. Sampuran Singh''s prayer that possession of the disputed property should be restored to him u/s 522 Cr.P.Code was rejected. All the convicted persons preferred an appeal to the Sessions Judge while Sampuran Singh made a revision petition challenging the correctness, of the Magistrate''s order refusing to take any action u/s 522 Cr.P.Code. Both the appeal and the revision petition were dismissed. Midha Dass and others have now come to this Court on the revision side. There is also a revision petition by Sampuran Singh. This order will dispose of the two petitions.

The prosecution case was that a house and some vacant land attached to the house were purchased by Sampuran Singh by a registered deed on 24th Maghar, 1999 and the possession of the house and the land was also delivered to him. He continued in possession of both for a considerable time and leased the house and the land to various persons until a couple of days before 13-5-2006 when the accused took possession of the house and the land and constructed on the land temporary structures by way of huts. It so happened that on the day the accused trespassed into the house and the land Sampuran Singh was not in the town. He returned on 13-5-2006 and when he came to know that the accused had taken possession of his properly he went to them and asked them to vacate it. The accused told him that they would leave the place in a few days but later on refused to do so. The accused in their statements admitted being in possession of the disputed property but pleaded that they had committed no offence because the property did not belong to Sampuran Singh nor was he ever in possession of it. Both the trial Court and the learned Sessions Judge have held that there was ample evidence to prove that Sampuran Singh was the owner of the property and that he was in possession of it till he was deprived of it by the accused. They have further held that the accused while taking possession of the property had the intention to annoy, insult and intimidate Sampuran Singh and consequently their act amounted to criminal trespass.

So far as the findings of the Courts below on the questions of fact are concerned they are supported by the evidence, documentary as well as oral, that was produced by the prosecution. It may be said in fairness to the accused counsel that he did not even attempt to challenge the correctness of those findings. What he contended was that the accused entered into possession under a bona fide belief that it was a Dera of the sweepers, the accused are also sweepers that they had no criminal intention whatsoever and consequently, their act, if it can be regarded as trespass, was merely a civil trespass and not punishable as an offence. He cited in support of his contention a single Bench decision of the Rangoon High Court - ''Emperor v. U. Kyaw Zan'' AIR 1937 Rang 132 and a decision by the Additional Judicial Commissioner of Oudh, - ''Emperor v. Jagmohan Dass'' 75 2 Case 292 (Oudh). In the first case certain land was sold in execution of a decree and the purchasers were given symbolical possession. The person in actual possession who was not a party to the proceedings brought a suit claiming that he had bought the land from the judgment-debtor but the suit was dismissed. While the appeal arising out of the suit was still pending the lessees of the claimant entered the land asserting that he had the right to take possession of it. It was held that under the circumstances there was no criminal trespass as the lessees acted in good faith. It appears from the judgment that the learned Judge while setting aside the accused conviction relied solely upon the decisions of his Court and refused to consider the contrary view held by the other High Courts on the ground that that was not accepted by the Rangoon High Court.

As regards the Oudh case, I do not consider that it supports the accused in this case inasmuch as the learned Additional Judicial Commissioner observed that the essence of an offence u/s 447 lies in the intent of the accused to commit an offence or to intimidate, insult or annoy any person in possession of the property with reference to which the trespass is made, and further that a man is presumed to intend the natural consequences of his act, and if any annoyance must inevitably attend his acts, and he does those acts without any reasonable justification, he must be held to intend to annoy, even though he had no desire to do so and his only desire is to obtain some advantage for himself.

The learned Advocate General who appears for the State in support of the conviction recorded by the Courts below relies, inter alia, upon a Full Bench decision of the Punjab Chief Court, - ''Ram Saran v. Emperor'' 12 P.R.(Cri). 1900 In that case the position of the accused was much better than that of the accused in the present case, because he claimed a title to the property and it was in the assertion of that title that he entered upon the property. The majority of the Bench held that where a person claiming a title to property, whether his title be good or bad, enters without any legal justification upon property in the established possession of another, he must be inferred to have had an intent to annoy the person in possession within the meaning of Section 441 of the Indian Penal Code, even though he had no primary desire to annoy and his only object was to obtain possession for himself. In the present case, as I have already mentioned, the accused assert that the property constitutes a Dera, but what grounds they had for this assertion is not clear from the record. It is true that they produced certain witnesses but their evidence was not worth much and could not be preferred to the documentary evidence produced by the complainant to prove not only his title but also his continued possession. Under the circumstances I do not believe that it can even be said that the accused acted in good faith. Rattigan J. who did not agree with his learned colleagues in the Bench case, held that it is not enough for the prosecution to prove or for the Court to find that the accused knew that his entry would probably annoy the person in possession, but it is absolutely essential to affirmatively establish and find that the accused acted with an intention to annoy. I may mention that the accused in this case cannot derive benefit from even this view, because the Courts below have held that taking into consideration the circumstances of the case they committed the trespass with the intention to insult, annoy and intimidate and not that they had merely the knowledge that their act would cause annoyance to the complainant. My attention was also drawn to a Full Bench decision of the Lahore High Court, - ''Abdul Majid v. Emperor'' AIR 1938 Lah. 534 in which the view of Rattigan J. was upheld but as I have already observed the accused have not been convicted on the basis of mere knowledge that decision cannot help them either. As regards intention, after all, intention is not a thing that can be proved by tangible evidence and has to be inferred from the circumstances. In this connection I may invite a reference to - Keshar Singh and Others Vs. Rex through Prem Ballabh Joshi, in which it was held that the intention has in most cases to be inferred from the circumstances and where the probable consequence of the act alleged to be criminal trespass was to cause annoyance to the person in possession it will be presumed that it was committed with that intention. The other case in point is - Arun Prakash Barhal Vs. Tulsi Charan Basu, In that case the accused had taken possession of the rooms belonging to the complainant on his return. It was held that the latter part of Section 441 applied, and the accused was guilty of house trespass u/s 448. In this case the act of the accused amounted to criminal trespass for two reasons one that they trespassed into property which was admittedly in the possession of the complainant and the presumption is that they did so with the intention of annoying him at least, and secondly, that when the complainant returned and asked them to vacate it they refused to do so even though at first they had assured him that they would restore the possession to him. For all these reasons I hold that the accused were rightly convicted.

As regards the sentence even though I am of the view that the trial Magistrate was not very harsh upon them, since they have been on bail and I do not want to send them back to Jail, I order that instead of undergoing unexpired period of their imprisonment they should pay a fine of Rs. 30/- each. In default of payment of fine they shall undergo two week''s further rigorous imprisonment each.

Coming now to the complainant''s petition. As the very words of Section 522 go to show possession of the property for the criminal trespass of which an accused person is convicted can only be ordered if the offence committed is attended by criminal force or show of force, or criminal intimidation and if it appears to the Court that the person in possession has been dispossessed of the property by such force, or show of force, or criminal intimidation. In the present case, it is admitted that the accused took possession of the land and the house in the absence of the complainant, when he was out of Patiala, and it was not even alleged by him that the accused used force, or show of force, to any person who was in possession on his behalf, or they criminally intimidated him. The evidence produced by the prosecution does not even make out that the accused used any force, etc. even in respect of the property of which they took possession, but even if they had used, this would not bring the case within the purview of Section 522 Cr. P. Code, because it is the use of force, etc. against-

a person that is essential and not against the property. See in this connection - ''Narain Singh v. Panna Lal'' AIR 1940 Lah. 460 by which - ''Roda v. Autar Singh'' AIR 1933 Lah. 839 which took a contrary view was overruled.

The result is that this petition fails and is dismissed. The accused are granted one week to pay up the amount of fine.