Patna High Court
Ramzan Mistry And Ors. vs Emperor on 2 January, 1929
Equivalent citations: 116IND. CAS.783, AIR 1929 PATNA 111
JUDGMENT Wort, J.
1. In this case the applicants were convicted under a. 448, Indian Penal Code. The argument addressed on their behalf by learned Counsel appearing for them is that on the findings of both the Courts, that is to say the trial Court and the Appellate Court, no offence* under Section 448 has been made out, that is to say the offence which is defined by Section 441, Indian Penal Code.
2. Now for the purpose of the argument it is only necessary to state a few of the main facts of the case. Ramzan, the first applicant, appears to have been the purchaser of that part of the house in which this criminal trespass is supposed to have been committed. As I understand the facts he was already in possession of another part of the house but that fact has no materiality in this application. It appears also that the complainant who was in possession disputed the validity of the sale to the first applicant and declined to give up possession although he had been ordered to do so by the applicant, On the day in question, however, Ramzan Mistry and three others went to the house and endeavoured to obtain forcible possession. That that was their object there can be no doubt. The trial Court states in these words when coming to consider this point;
Now I am to consider the intention and object of the accused persons doing the said act. The accused Ramzan wanted to take khas possession of the house in question, and it is also apparent from the circumstances and facts brought out in the evidence that the accused Ramzan wanted to oust the complainant from the house. The notice Ex. 4 shows that he wanted to evict the complainant in due course of law, but the evidence in this case shows that the accused Ramzan wanted to take the law into his own hands and wanted to take forcible possession.
3. In similar words the Appellate Court also found that the object of this trespass was to take forcible possession.
4. Now the argument addressed to me on this question is as follows: That in order to commit an offence punishable under Section 448, there must be an entering upon property with the intent to commit an offence or to intimidate, insult or annoy a person in possession of property, there was no question hereof intimidation and there is no finding of an intention to insult or annoy. It is admitted that the action on behalf of the applicants resulted in all probability in the fact that the complainant was insulted and annoyed but that is not sufficient to constitute an offence under Section 441; in other words the intention to insult or annoy cannot be gathered from the result. Expressed in other language, the intention cannot be implied from what actually resulted from the action of the accused persons. Now on a perusal of Section 441, in my judgment, it is perfectly clear that that argument is well-founded. The section contemplates an entering upon property with a certain intention which is expressed in the section and that the mere fact that the action of the accused was likely to cause annoyance would not be sufficient to say that that was the intention of the party. This point is not without authority. The first case in point of time is the case of Queen-Empress v. Rayapadayachi 19 M. 240 : 1 Weir 537. That was a case where a person entering upon the house went there, according to the finding of the Courts, with the intention of having illicit intercourse with a woman living in the house, and the judgment of the Court was that the section contemplated an actual intention on the part of the person entering upon the house to annoy. The mere fact that it was likely to cause annoyance was not sufficient to constitute an offence under Section 448. And these words are used in the course of the judgment:
The Section (that is 441) defining criminal trespass is so worded as to show that the act must be done with intent and does not, as other sections do, embrace the case of a1 act done with knowledge of the likelihood of giving a certain consequence.
5. The next case in point of time is the case of Vullappa v. Bheema Row 43 Ind, Cas. 578 : 41 M. 156 : 6 L.W. 794 : 33 M.L.J. 729 : (1918) M.W.N. 81 : 19 Cr. L.J. 162 (F.B.). Similar language is used by the Chief Justice in delivering one of the judgments of the Full Bench to which a reference had been made, and there was noted the difference between Section 3, 441 and 201 as compared with the other sections of the Code, the point being that Sections 441 and 201 contemplated a definite intention which could not be gathered from the result of the act complained of. The third case is the case of Moti Lal v. Emperor 88 Ind. Cas. 1049 : 47 A. 855 : 23 A.L.J. 679; L.R. 6 A. 132 Cr. A.I.R. 1925 All. 540 : 26 Cr. L.J. 1273. It is true that in that case the main question for decision was whether actual physical possession of the complainant was necessary in order to constitute an offence under Section 441 or Section 448 and that point was decided in the affirmative. But the Court proceeded to decide the further question which comes before this Court, namely, whether the intention can be inferred from the actual or probable results. That question was answered in the negative, the Court holding that it was necessary to show the actual intention to insult or annoy before the acts were complete to constitute the offence under the section. Both the Courts, as I have already stated in this case, find that the intention was to get forcible possession. That indeed may give rise to a civil suit but the processes of the Criminal Court were not the proper medium by which the complainant is to obtain such remedies and relief to which he was entitled.
6. In my judgment, on the findings arrived at by both the Courts, the offence with which these people were charged and convicted has not been made out and the conviction must, therefore, be set aside and the lines, if paid, must be refunded.