Sambaru Jal and Another vs Niladri Jal

P.K. Mohanti, J.—Petitioners have been convicted u/s 447, Indian Penal Code and sentenced to pay a fine of Rs. 100/- each or in default to undergo R. I. for one month each.

Petitioner No. 1 Sambaru Jal is the father of Petitioner No. 2 Damodar Jal. The complainant-opposite party is the brother of Petitioner No. 1. The case put forward by him was that he gut the land, locally known as "Pidha Atta", on Nayabadi lease from the ex-State of Rairakhol in the year 1943 and since then he has been in peaceful possession of the same. On 3-9-1975 and 4-9-1975 the Petitioners forcibly entered upon the land and ploughed the same. On his protest they threatened him with assault.

During their examination u/s 313, Code of Criminal Procedure the Petitioners admitted to have ploughed the land but they claimed ownership of the same.

At the trial, the opposite party examined himself and two other witnesses who are boundary tenants. The Petitioners also examined a defence witness. The opp. party filed a copy of the order dated 31-12-1975 passed by the Tahasildar, Rairakhol allowing mutation of the land in his name. The learned Magistrate on a criminal appreciation of the evidence led by the parties came to the conclusion that the opposite party has been in physical possession of the land since 1943 and that the Petitioners were never in possession. He also found that the dominant intention of the Petitioners in trespassing over the land was to annoy the opposite party. Upon these findings, he held the Petitioners guilty u/s 447. Indian Penal Code and inflicted the sentences as indicated above.

It is urged on behalf of the Petitioners that on the facts proved the learned Magistrate should have held that the dominant intention of the Petitioners was to assert possession over the land and that they bad no intention to annoy the opposite party.

The finding of the learned Magistrate on the question of possession is fully borne out by the evidence on the record. P.W. 2 and 3 are quite disinterested and independent witnesses and their evidence about possession of the opposite party has not been shaken in any manner. The only witness examined by the Petitioners could not give the correct boundary of the land. His evidence was therefore not relied upon by the learned Magistrate. The learned Counsel appearing on behalf of the Petitioners did not assail the finding of fact on the question of possession. He did not also dispute the finding that the Petitioners had ploughed the land on 3-9-1975 and 4-9-1975 as alleged by the opposite party. He however argued that the requisite intention to justify a conviction u/s 447, Indian Penal Code has not been proved and the mere fact that the action of the Petitioners resulted in annoyance to the opposite party, even if true, cannot amount to criminal trespass.

A plain reading of Section 441 of the Indian Penal Code which defines criminal trespass shows that an unlawful entry is not necessarily an offence unless it was made with the intention to commit an offence or to intimidate, insult or annoy the person in possession. Prosecution must prove that the teal or dominant intent of the entry was one of the intents specified in the section. Unlike Several section of the Indian Penal Code where mens rea consists of intention or knowledge, Section 441 specifically requires the intention to intimidate, insult or annoy the person in possession or to commit an offence as an essential element of the offence of criminal trespass. Mere knowledge on the part of the accused that he was likely or cause annoyance would not by itself be sufficient, unless the evidence of such knowledge coupled with the other facts was such as to lead the Court to infer there from the requisite intent. Thus intention is the sine qua non. Annoyance or intimidation might result from a certain conduct and yet it may not have been intended. It is also possible to conceive of a case where, although intended, there was no annoyance or intimidation. In this connection I may profitably quote the observations of their Lordships of the Supreme Court in the case of Mathuri and Others Vs. State of Punjab, , which are as follows:

It is legitimate to think also that when Section 441 speaks of entering on property ''with intent to commit or annoy'' any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that also be present. ..

As to the meaning of the word "intent" their Lordships quoted with approval the following observations made in the case of Bhagwant Appaji v. Kedari Keshinath and Ors. ILR 25 Bom. 202:

The word ''intent'' by its etymology, seems to have metaphorical allusion to archery, and implies ''aim'' and thus connotes not a casual or merely possible result foreseen perhaps as a not improbable incident, but not desired - but rather connotes the one object for which the effort is made - and thus has reference to what has been called the dominant motive, without which the action would not have been taken.

The substantial question that arises for consideration in the present case is whether the element of intention to annoy the opposite party has been established.

The question of intention is no doubt a question of fact but whether it has been legally inferred from the proved facts is a question of law.

The evidence given by the opposite party, which has not been controverted, is that he took lease of the land on Nayabadi lease in 19-13 and since then he has been in cultivating possession after reclaiming the same. Though the land was leased out to him on his application, the patta was wrongly issued in the name of Petitioner No. 1. But he had no suspicion against Petitioner No. 1 who is none else but his brother. He stated:

When I questioned as to how he brought the patta when I have been granted lease, Sambaru replied that there would be no trouble in my possession.

He asserted that he was all along paying rent for the land but the receipts were granted in the name of Sambaru as the patta stood in his name. His evidence also shows that in 1973 he applied for mutation of the land and Sambaru did not file any objection. P.W. 3 corroborated the statement of the opposite party that he was paying rent but the receipts were granted in the name of Sambaru as the patta stood in his name. Ext. 1, the certified copy of the order dated 3-12-1975 passed by the Tahasildar, Rairakhol shows that mutation of the land was allowed in the name of the opposite party. According to the opposite party, he protested against the action of the Petitioners in trespassing over the land but his protests went unheeded. Petitioner No. 2 Damodar was armed with a table and Petitioner No. 1 Sambaru was armed with a stick. Out of fear he left the spot and called some gentlemen to witness the occurrence.

Thus it appears that though the opposite party was in long continuous possession, the Petitioners illegally trespassed over the land on the date of occurrence. The fact that the Petitioners went armed with weapons and ploughed the land despite the protests of the opposite party their intention cannot be anything else but that of causing annoyance. From their conduct and behaviour at the spot, it appears that their primary intention was to annoy the opposite party. The finding about peaceful possession of the opp. party for more than 30 years states at the face of the defence contention that the dominant intention was to assert possession and not to cause annoyance to the opposite party. The peaceful possession being with the opposite party and the intention of the Petitioners being clear, it is impossible to say that the act complained of did not constitute the offence of criminal trespass within the meaning of Section 441, Indian Penal Code.

Mr. S.C. Sahu, the learned Counsel appearing on behalf of the Petitioners relied on some decided cases which are clearly distinguishable on facts. There can be no quarrel over the proposition that where the intention is to take possession there can be no conviction u/s 447, Indian Penal Code.

In Smt. Mathri, and Ors. v. The State of Punjab1, referred to above, the accused persons were armed with warrants for delivery of possession in execution of decrees for ejectment though the date for execution of the warrants had expired. Their Lordships observed that it might be that the accused knew that the annoyance would result when they went on the land for taking possession; still it was reasonable to think that the intention which prompted and dominated their action was to execute the warrants. Further, the accused persons could not be reasonably expected to know that the warrants had ceased to be executable in law. It was accordingly held that the acts of the accused persons did not constitute the offence of criminal trespass.

In Bala Bariha and Others Vs. Kathu Bariha, , the accused was serving as a Gomasta-Jhankar under the complainant for seven or eight years and claimed to have been given the land in question towards his remuneration. Though the complainant alleged that he was giving five pudugs of paddy every year as remuneration, there was no clear finding whether the remuneration consisted of paddy, as alleged by the complainant or the land had been given as asserted by the accused. All that the accused did was to plough the land and spread manure asserting that he was in possess ion of the land in lieu of his wages. In these circumstances it was held that it would not be reasonable to conclude that the dominant intention of making the entry was to annoy the complainant.

In Sanatan Naik v. State 36 (1970) C.L.T. 212, the accused persons were employees of the Kalinga Tubes Limited. They held a meeting, without permission, in its Rest-shed meant for rest of its workmen who previously held meetings there. It was held that the meeting was held not to insult or annoy the person in charge of the factory but to ventilate the grievances of the workers. Hence the accused persons were not held guilty of the offence u/s 447, Indian Penal Code.

In Bidyadhar Nayak and Ors. v. Srimati Dei5, accused Bidyadhar claimed to be the adopted son of Panu Naik, the original owner of the land in dispute. The complainant was the daughter of the eldest brother of Panu. She claimed to have got the lands from Panu under a registered deed of gift on 10-10-1969. It was alleged by the accused persons that the registered deed of gift had been cancelled by Panu on 13-1-1969. The deed of cancellation though written on a plain piece of paper, had been duly proved. It was clearly in the prosecution evidence that accused Bidyadhar who claimed to be the adopted son of Panu Naik was staying in his house since his childhood and Panu got him married. The gift deed was dated 10-10-1969. The deed of cancellation was dated 13-12-1969 and the occurrence took place on 9-5-1970. It was after the occurrence that Panu died. In these circumstances it was held that the action of the accused persons in forcibly ploughing the land did not eliminate beyond all reasonable doubt the probability of their intention to take possession of the land.

The principles decided in the above mentioned cases do not apply to the present case. As the opposite party was in peaceful possession continuously for a period of more than 30 years to the knowledge of the Petitioners, they had no justification to plough the land forcibly despite his protests. As already stated, their object in carrying weapons with them was to intimidate and annoy the opposite party. The dominant intention in such a case cannot be held to assert possession. The order of conviction is therefore justified. But the sentences appear to be excessive. While therefore maintaining the conviction of both the Petitioners u/s 447, Indian Penal Code, I would reduce the fine to a sum of Rs. 50/- to be paid by each of the Petitioners. In default of payment of fine they should undergo R. I. for 15 days each.

Subject to the above modification in the sentence the criminal revision stands dismissed.

Revision dismissed.