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PETITIONER: RASH BEHARI CHATTERJEE

       Vs.

RESPONDENT: FAGU SHAW & ORS.

DATE OF JUDGMENT: 28/04/1969

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. BACHAWAT, R.S. RAMASWAMI, V.

CITATION:  1970 AIR   20            1970 SCR  (1) 425  1969 SCC  (2) 716

ACT: Indian Penal Code (Act 45 of 1860) ss. 441 and  447-Criminal Trespass-Actual  presence  of person who is intended  to  be annoyed if necessary.

HEADNOTE: On  the success of a suit filed in 1951 by the appellant  he obtained  actual  physical possession of a land in  1963  by evicting the respondents with police help.  The  respondents trespassed   on  the  land  after  two  weeks  from   ’their ejectment.  and  they  were found  making  preparations  for construction  of  bamboo structures.  The  respondents  were convicted under s. 441/447 I.P.C. by the Magistrate, and the conviction was affirmed by the Sessions Judge.  But the High Court, on a revision acquitted the respondents as it was  of the view that the appellant was not in actual possession  of the  property and that the complainant must not only  be  in actual  possession  but also be present at the time  of  the trespass so as to bring the offence undeR s. 441/447  I.P.C. In appeal this Court, HELD  :-The  High  Court was in error in  holding  that  the appellant was not in actual possession of the property.  The land  in  dispute  was  lying  vacant  after  the  appellant obtained possession and the actual possession must be of the appellant.   Further  the  law does  not  Require  that  the intention must be to annoy a person who is actually  present at the time of the trespass. On the facts of this case there could not be any doubt  that the intention of the respondents was to annoy the  appellant who  was in possession of the case land.  There  could  have been no hope on the part of the respondents that they  would be  able  to stay in possession of the land.   After  twelve years  of  litigation  the  appellant  was  able  to  obtain Possession,  and  only after two weeks after  that  day  the respondents  chose to trespass and start construction.   Any other  dominant intention could not be found which  prompted the trespass. [427C, F] Mathuri and OtherS v. State of Punjab, [1964] 5 S.C.R.  916; 927, followed.

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JUDGMENT:  CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 5. of 1967. Appeal  by special leave from the judgment and  order  dated May 11, 1966 of the Calcutta High Court in Criminal Revision No. 188 of 1966. Sukumar Ghose, for the appellant. D.   N. Mukherjee, for respondents Nos.  1 to 8. P.   K. Chakravarti, for respondent No. 9. The Judgment of the Court was delivered by Sikri,  J. This appeal by special leave is directed  against the  judgment  of the High Court at  Calcutta  allowing  the criminal 426 revision and acquitting the respondents of the charge  under S. 447, I.P.C. The  only  question which arises in the, present  appeal  is whether  on  the  facts and circumstances of  the  case  the intent to annoy the appellant has been established.  The law on  the  point is now settled by this Court in  Mathuri  and Others v. State of Punjab (1).  Das Gupta, J., speaking  for the  Court, after reviewing the authorities, stated the  law thus :               "The  correct  position  in law  may,  in  our               opinion,   be  stated  thus  :  In  order   to               establish  that the entry on the property  was               with  the  intent  to  annoy,  intimidate   or               insult,  it is necessary for the Court  to  be               satisfied   that   causing   such   annoyance,               intimidation  or  insult was the  aim  of  the               entry;  that  it is not  sufficient  for  that               purpose  to  show  merely  that  the   natural               consequence  of  the entry was  likely  to  be               annoyance,  intimidation or insult,  and  that               this  likely  consequence  was  known  to  the               person entering; that in deciding whether  the               aim  of  the  entry was the  causing  of  such               annoyance,  intimidation or insult, the  Court               has to consider all the relevant circumstances               including  the presence of knowledge that  its               natural consequences would be such  annoyance,               intimidation or insult and including also  the               probability of something else then the causing               of  such  intimidation, insult  or  annoyance,               being  the dominant intention  which  prompted               the entry." This  judgment  was not brought to the notice  of  the  High Court  in  this case.  In view of this judgment  it  is  not necessary to re. view the earlier High Court cases. The  appellant  gave  the history  of  the  dispute  between himself and the respondents in his evidence.  He stated that he  and his three brothers filed title suit No. 404 of  1951 in  the  first  Court of Munsiff  at  Serampur  against  the respondent   Fagu  Shaw  praying  for  ejectment  and   khas possession of the land in dispute; the, respondent Fagu Shaw contested the ’suit; on May 23, 1954, a decree of  ejectment was  passed; against the judgment and decree the  respondent Fagu Shaw preferred an appeal before the District Judge  and the appeal was dismissed; the respondent Fagu Shaw preferred a  second  appeal  to  the Calcutta  High  Court  which  was dismissed  summarily; the appellant executed the decree  and in  September  1962 when the Nazir of Serampur  Civil  Court with process servers went to take delivery of possession  of

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the case, (1)  [1964] 5 S.C.R. 916, 927.                             427 land the respondent resisted and refused to give possession; however on February 3, 1963, the Nazir with police help went to  the  spot for delivery of possession and  the  appellant obtained actual physical possession.  The appellant  further stated  that the land was in their possession from  February 3, 1963 upto February 17, 1963, when the present  occurrence took  place.  It appears that the respondents trespassed  on the land on the, night of February 16, 1963, and on February 17,   1963,   they  were  found  making   preparations   for construction of bamboo structures on the case land and  some bamboo pegs had already been posted. Now the question arises whether the intention of the respon- dents  was to annoy the appellant or not within the  meaning of  s. 441, I.P.C. It seems to us that on the facts of  this case  there  cannot be any doubt that the intention  of  the respondents was to annoy the appellant who was in possession of the case land.  There could have been no hope on the part of  the  respondents  that they would be  able  to  stay  in possession of the land.  The litigation started in 1951  and it  was on February 3, 1963 that the appellant was  able  to obtain  possession.  It is only after two weeks  after  that day  that  the  respondents  chose  to  trespass  and  start construction.   In this case we cannot find any other  domi- nant intention which prompted the trespass. The  High Court seems to have proceeded on the footing  that the  appellant was not in actual possession of the  property and further that the law requires that the complainant  must not only be in actual possession but also be present at  the time  of  trespass  so as to bring the  offence  within  the provisions of s. 441/447, I.P.C. In our view the High  Court was in error in holding that the appellant was not in actual possession  of the property.  The land in dispute was  lying vacant  after  the  appellant obtained  possession  and  the actual possession must be of the appellant.  Further the law does  not  require  that the intention must be  to  annoy  a person who is actually present at the time of the trespass. In  the  result the appeal is allowed, the judgment  of  the High  Court  set aside and the judgment and order  of  t  he Magistrate  1st  Class Serampur, which was affirmed  by  the learned Additional Sessions Judge, Hoogly, restored. We may mention that the Magistrate sentenced the respondents to  pay  a  fine of Rs. 100 each and in  default  to  suffer rigorous  imprisonment  for one month.  We are of  the  view that  the  Magistrate was rather lenient to  the  respondent Fagu Shaw who, seems to be an inveterate trespasser, and  in the  circumstances of this case the Magistrate  should  have sentenced him to imprisonment however short. Y.P.                    Appeal allowed. 428