Ratneswar Das vs The State of Assam

K.N. Saikia, J.—The Petitioner in this criminal revision impugns the orders convicting him u/s 448 I. P. C. with a sentence fine of Rs. 101/-, in default, simple Imprisonment for 15 days.

A Lower Division Assistant in the office of the Divisional Forest Officer, Dlphu (West Division), in Karbi Anglong, having not received his pay even on 3.10.77 till 3.45 P. M. the Petitioner entered the office room of the Head Assistant of the Office, Shri Ganeswer Sarmah and enquired about his pay and started abusing Shri Sarmah with fifty language demanding his pay and, as found by the trial Court, raised his hand towards Shri Sarmah. The trial Court found him guilty of house trespass and convicted him u/s 448 I. P. C. as above. The appeal by the Petitioner therefrom was dismissed.

Both the learned courts below held that the Petitioner belong the Lower Division Assistant of the same office his entry into the office room of the Head Assistant could not be held to be unlawful. It has, however, been held that by using fifty language and raising his hand towards Shri Sarmah the Petitioner his committed the offence. However, there is no evidence to show that the Petitioner unlawfully remained inside the room with the intention of intimidating or annoying the Head Assistant.

u/s 441 I. P. C 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, or having lawfully entered into or upon such property unlawfully remains there with intent there by to intimidate, insult or annoy, any such person, or with to intent, to commit an offence is said to commit - criminal trespass. u/s 442 I. P. C. whoever commits criminal trespass by entering into remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to, commit house-trespass. Whoever commits house trespass shall be punished u/s 448 I. P. C. In this case, the evidence is that the petitioner entered the Head Assistant''s office to enquire about his pay and when he did not receive, he started using fifty language and raised his hand. It was within office hours and there is no evidence to show that there was order by the Head Assistant to the Petitioner to leave his room. There is no evidence to show that the room was a building used as a human dwelling or used as a place of worship, or as a place for custody of property. There is also no evidence to show that the office room was a property in possession of the Head Assistant. Under these circumstances the Petitioner could not have been convicted for house trespass. Even assuming that the room was a dwelling house and property in possession of the Head Assistant, when a person lawfully enters into or upon property, to convert him to a trespasser there must be evidence to show that having lawfully entered he unlawfully remained there with intent thereby to intimidate, insult or annoy any such person or to commit offence as stated in Section 441 I. P. C. There must be a precise moment when his right of entry has ceased, and from which the law will find him a trespasser. In the instant case there is no mention of any such moment precisely from which the law can regard him as a trespasser. There is no evidence of his unlawfully remaining with intent to commit any offence or his having remained in the room when he was ordered to leave or beyond the office hours.

Criminal trespass as dealt with in the Indian Penal Code has to be distinguished from civil trespass in the law of Torts. For the former we have to apply the ingredients given in the definitions and not the principles of law of Torts. Section 441 I. P. C. clearly envisages, Inter alia, unlawfully remaining after lawfully entering. Civil trespass may also be committed by a person who has lawfully entered on land in possession of another If he remains there after his right of entry has caused. But the doctrine of trespass ab initio as laid down in the Six Carpenters case (,1610) 8 Co. Rep. 146; 77 E.R. 695, as such, does not apply in our statutory definition of criminal trespass.

Both the learned courts below observed that the P. Ws. 3 and 5 turned hostile and they did not support the prosecution case. Even otherwise we find that the offence of house trespass punishable u/s 448 I. P. C. was not made out. The conviction and sentence are accordingly set aside.

The petition is allowed and the Rule is made absolute.