Patna High Court
Bageshwari Devi And Ors. vs Indian Union on 16 February, 1950
Equivalent citations: AIR1950PAT295, AIR 1950 PATNA 295
JUDGMENT Sarjoo Prasad, J.
1. This application is on behalf of 34 petitioners who have been convicted by a Magistrate, vested with first class powers of Gaya under Section 447, Penal Code, and sentenced to a fine of Rs. 200 each, in default, to undergo simple imprisonment for 1 month each. The order of conviction and sentence has been affirmed by the Additional Sessions Judge of Gaya, Mr. N. Ahmad.
2. The prosecution case is that the lands of village Kharanti, to which the petitioners belong, with the houses of the petitioners were acquired in connection with the construction of an aerodrome by Government sometime in the year 1942-43 and compensations were paid to_ the petitioners in respect of those acquisitions. The petitioners had evacuated the houses, and had gone and settled in a nearby locality. Subsequently there was an outbreak of fire, and houses of these petitioners, which they had constructed later after acquisition of their houses in the village, were burnt to ashes and destroyed by the fire in the year 1916. Thereafter, these petitioners took shelter in the verandah of structures which had been constructed by the military at the site of the village and, which, after the termination of the war, had been lying vacant. Subsequently, it is alleged that they started building houses on the old sites, and when the site was inspected by one T.S. Jotwani on 6th Match 1948, he noticed that the villagers generally re-occupied their old sites, and he submitted a report of this fact to the Collector for necessary action. The Collector then directed that an enquiry should be made by the land acquisition officer, and an enquiry was accordingly made and a report submitted to the Collector. This report is Ex. 6 in the case. It is alleged by the prosecution that as the petitioners failed to vacate the premises, they were liable to be prosecuted under Section 447, Penal Code. When the matter came before the Subdivisional Magistrate, he issued notice to the petitioners to show cause why they should not be prosecuted for trespass. On 11th June 1948, cause was shown by the petitioners. In that show-cause petition they alleged that they bad constructed their houses on the Government acquired lands with the permission and consent of the then land acquisition officer, Mr. Sanyal, after their houses had been destroyed by fire in the year 1946. They say in paras. 11 and 12 of their petition that they approached Mr. Sanyal for the return of lands as the war was over and the lands acquired by the Government were lying useless while the petitioners were in urgent need of the lands which Government had acquired from them, and that Mr. Sanyal, sympathising with their helpless condition, allowed them orally to erect their dwellings on the old sites of their houses and directed them to refund the compensation received by them minus 15 per cent, on receipt of notices, and gave assurance that he would get every thing done in communication with the Government. The petitioners further went on to say that on the oral order of Mr. Sanyal, the then land acquisition officer, they constructed their houses on the old sites, though the said sites had been acquired by the Government about a year ago. They further stated that they had submitted a long application before Mr. Sanyal for fixing the amount of compensation to be returned by them to Government, but on which application no action appears to have been taken. They accordingly prayed that they should not be prosecuted for trespass, and they further alleged that they had made a representation to the higher authorities including the military authorities for consideration of this question of settlement of the lands with them. On this cause being shown before the learned Subdivisional Magistrate, the learned Magistrate observed, as it appears from the order-sheet dated 11th June 1948, that "I think it is at beat a case of civil trespass, and the point being doubtful whether the opposite parties were permitted or were under a bona fide impression of having been permitted, though actually not so, I do not think criminal prosecution should lie. The proceeding should, therefore, be dropped."
It appears, however, that after some discussion with the District Magistrate, the petitioners? prosecution commenced ending in their conviction and sentence as stated by me above.
3. In support of this petition, three points have been urged by learned counsel for the petitioners. The first contention is that there is nothing to show that there was any criminal intent on the part of the petitioners, and, therefore, there has been no offence committed under Section 447, Penal Code. The second contention is that there should have been no order for restoration of the possession passed by the learned Magistrate under Section 522, Criminal P. C., as the said section had no application to the facts of the case and the third point raised is that there should not have been a joint trial of all the petitioners as there was no community or identity of purpose.
4. In regard to the first contention, it seems pretty clear from the circumstances of this case that there was no question of any criminal intent. Section 441, Penal Code requires that in order to constitute "criminal trespass" the act must have been done with intent to commit an offence or to intimidate, insult or annoy an; person in possession of any such property." This criminal intent has of course to be gathered from the circumstances of each case. In this case all that I find is that these petitioners, whose houses and lands had been acquired previously by Government for the purpose of an aerodrome, had returned to this place because their houses had been destroyed by fire and they were allowed to stay in the military structures which had been constructed by Government. It may be that they may have no right to construct buildings upon the old sites, but still it could not be said that there were any criminal intention in building upon those lands. Their case is that they did so on the faith of some understanding given to them by Mr. Sanyal, the then land acquisition officer. They may not be perfectly right in assuming that they had been allowed to build their houses upon the old sites, or that they had any legal right to do so. But still it could not be said that they had any criminal intent in that regard. It has been pointed out in various cases that in order to constitute criminal trespass it must be essentially proved that the person actually intended to annoy the owner and that by such conduct on the part of the accused person annoyance was caused; the mere knowledge that by such conduct the trespass is likely to cause annoyance may not be sufficient to impute criminal intent on the part of the person who commits the act of trespass. In Queen-Empress v. Rayapadayachi, 19 Mad. 240, it has been held that though the accused may have known that, if discovered, his act would he likely to cause annoyance to the owner of the house, he cannot be said to have intended either actually or constructively to cause such annoyance. It is one thing to entertain a certain intention and another to have the knowledge that one's act may possibly lead to a certain result. Section 441 is so worded as to show that the act must be done with intent and does not, as other section do embrace the case of an act done with knowledge of the likelihood of a given consequence. The same view has been expressed in a later Full bench of the same High Court in Vullappa v. Bheema Row, 41 Mad. 156 : (A. I. R. (5) 1918 Mad. 136 : 19 Cr. L. J. 162). It has been held by the Full Bench in that case that:
"Trespass is an offence under Section 441, Penal Code, only if it is committed with one of the intents specified in the section, and proof that a trespass committed with some other object was known to the accused to be likely OE certain to cause insult or annoyance is insufficient to sustain a conviction under Section 448, Penal Code."
Again, in another case in Emperor v. Baldewa,56 ALL, 33 : (A. I. R. (20) 1933 ALL. 816 : 35 Cr. L. J. 347) it was observed that every unlawful act wag not necessarily an offence, and the mere entry without right upon another's land did not render the accompanying trespass a criminal trespass. There is a distinction between the phrases "with intent" and "with knowledge"; it must be proved by the prosecution that the accused had the intention to intimidate, insult or annoy when he made the entry, and it is not enough that the prosecution should ask the Court to infer that the entry is bound to cause intimidation, insult or annoyance. A mere knowledge that the trespass is likely to cause insult or annoyance does not amount to an intent to in-suit or annoy within Section 441, Penal Code. Now, it is contended by the learned Government Advocate appearing on behalf of the State that there is a definite finding by the learned Additional Sessions Judge to the effect that there was a criminal intent on the part the petitioners. He referred us to the passage in the judgment of the learned Sessions Judge which runs as follows:
"The evidence shows that they were repeatedly asked to vacate, but, in spite of that, much to the annoyance of the authorities they continued to hold on. The very act of recapturing their old sites in the circumstances of the case was an offence coming within the mischief of the definition of criminal trespass."
This finding is challenged by the petitioner. Now, we have tried to examine the record from this point of view as to whether in spite of being repeatedly asked the petitioners refused to vacate the sites in question or to desist from reoccupying the same. The learned Government Advocate has referred us to the evidence of Mr. Sanyal on the point; but that evidence only shows that Mr. Sanyal merely told the petitioners not to continue to build up their dwellings on the lands and this he did at a time when Mr. Sanyal had ceased to be the land acquisition officer. That does not mean that the petitioners were warned that if they continued to go on building, they would be committing an act of trespass on the land; nor does it show that the petitioners were repeatedly asked not to build. He then draws our attention to another statement in the evidence from which it appears that there was some service of notice upon the petitioners to vacate the land, but no such service appears to have been proved in this case. On the other hand, the report (EX. 6), submitted to the District Magistrate, definitely states that :
"it is clear from his report (meaning thereby the report of the amin who went to the spot along with the then land acquisition officer, Mr. Sanyal) that hope was held out to the tenants of a chance of the restoration of their old lands, and the condition on which such restoration could take place, if at all, was also intimated to them, viz., the refund of the compensation money minus 15 p.c."
This evidently shows that the petitioners were acting on the faith of some understanding given to them that the lands would be restored to the petitioners on payment of the compensation money to Government. In my opinion, therefore, the learned Subdivisional Magistrate had rightly held that at best it should be a case of civil trespass, if at all, and it was not a case where the" petitioners could be held criminally liable. In fact, the learned Additional Sessions Judge does not seem to be very sanguine in regard to that part of his finding, and, therefore, goes on to observe that the very act of recapturing their old sites would constitute a case of criminal trespass. For the reasons which I have given above, there was no act of criminality when they originally entered upon the site; nor could it be said to be an act of criminality because they continued to be on the site in the belief that they would get settlement of their old lands on payment of compensation. In fact, we ate told that their application is still pending before the higher authorities and has not been finally disposed of. In these circumstances it was indiscreet to launch a criminal prosecution against the petitioners.
5. The next point urged is about the application of Section 522, Criminal P. C. The language of Section 522 is absolutely clear. I fail to understand how the learned Magistrate could act under this provision of the law. Section 522 applies where a transaction is attended by criminal force or show of force or criminal intimidation and it appears to the Court that by such force any person has been dispossessed of any immovable property. It is only in such a case that under Section 522 the Court may, if it thinks fit, order that the person dispossessed may be restored to possession. There is no such case here of any dispossession or show of force and criminal intimidation. At any rate, there is no such finding on the point anywhere in the record. That being so, the order passed under Section 522, Criminal P. C., is clearly illegal.
6. Lastly, it has been urged that the joint trial of the petitioners is also illegal. Now, it may be that the act of trespass, if any, committed by the petitioners individually may be similar, But unless it is shown that there was some identity or community of object amongst them, it could not be said that their offence came within the purview of Section 239 (a), Criminal P. C.; in other words, it could not be said that the act of trespass, if any, committed by each individual accused was committed in the course of the same transaction. IE any authority is needed on the point, I may refer to the decision in Samiullah Sahib v. Emperor, 50 Mad. 735 : A. I. R. (14) 1927 Mad. 177 : (27 Cr. L. J. 1381) which was a case where a number of persons were all separately engaged in fishing, and were merely several poachers gathered in the same place at the same time, and there was no evidence of any common object or common intention. All those persons were tried together for offences under Sections 379 and 447, Penal Code as having been committed in the course of the same transaction, and convicted. It was held by Jackson J. sitting singly that the cases ought not to have been jointly tried, and that such joint trial was not a mere irregularity, bat vitiated the trial altogether. He accordingly set aside the conviction of the petitioners in that case. The illustration which has been given by the learned Judge in the course of his discussion of the matter is quite illuminating. He says:
"The terms of the section itself offer the best solution of these problems. Were the offences committed in the course of the same transaction; or, in other words, were the offenders putting through the same thing? A, B and C travel in the same train without tickets; the purpose of each is to be convened without paying; it is a similar purpose but not identical, because A does not intend that B and C shall escape paying and so with B or C. They cannot be jointly tried."
There is obviously a difference between a similarity of purpose and identity of purpose, and unless it could be shown that there was an identity of purpose or community of purpose, it could not be said that the offence committed by all the accused was in the course of the same transaction. The position may have been different if all of them combined together to do a certain illegal act. For instance, if all the three persons in that illustration had, with the common purpose, intended to travel without tickets and without any payment to the railway authorities, the purpose would be identical. But in the absence of any evidence of common intention or communinty of purpose or conspiracy, it could hardly be said that the individual act of trespass committed by one accused was in the course of the same transaction as an act committed by another accused. In that view of the matter, I would hold that the joint trial of the accused persons was also illegal. In any event, in view of my finding that there was really no criminal intent on the part of the petitioners, I hold that the petitioners have been wrongly convicted of an offence under Section 447, Penal Code. I accordingly acquit the petitioners and set aside the order of conviction and sentence passed against them, and direct that the fine, if paid, should be refunded. The application is, therefore, allowed.
Meredith, C.J.
7. I agree that the petitioners have been wrongly convicted, and must be acquitted.
8. With regard to the question of joint trial, I am of opinion that there are no materials in this case upon which a finding can be based that the re-occupation by the various petitioners of their various holdings all formed part of the same transaction. For all we know the different petitioners, who apparently re-occupied their lands at intervals over a fairly long period, may have acted quite independently, or one petitioner may have decided later to rebuild on the old site, because he saw that the other petitioners had already rebuilt on their old sites, and there had been no protest or interference in other words, the intention of each petitioner would merely be to rebuild his own house on his own land, but not necessarily to further rebuilding by all the petioners of their houses on their lands. The case was not, in my opinion, one which could fall either within Section 239 (a) or Section 239 (d), and it is not contended that there is any other clause of Section 239 which is applicable.