1. Against the order of conviction under Section 448 of the Penal Code and sentence of fine of Rs. 100/- in default to surfer R. I. for one month, the petitioner has preferred the Criminal revision.
2. The prosecution case is that on Mar. 7, 1976 at about 7 p.m. the accused took shelter in the out-house of the first informant but thereafter did not leave the house : The first informant convened meeting of the local people to decide the dispute but the accused did not vacate the land. Accordingly, the first informant lodged a First Information Report. The accused was charged under Sections 448 and 426 of the Penal Code. However, he was acquitted of the charge under Section 426 of the I.P.C., but convicted under Section 448 by Shri H. M. Barkakati, Sub-divisional Judicial Magistrate, 1st Class at Hailakandi, The first informant examined himself as P.W.1 and stated that on 7-3-76 the accused with his leave took shelter for the night but unlawfully remained there. The accused did not leave the out-house. The local people were called to decide the question the last sitting was held on 16-3-76 wherein they decided that the accused should leave the house of the first informant. However, he did not leave the place. The plea of the accused was that by virtue of Ext. A, an unregistered deed of sale he entered upon possession of the house and the land. He had paid Rs. 600/- and obtained possession, the first informant, the vendor was to get the deed registered in terms of the agreement, marked Ext. A. It appears clear that there is a written deed proved as Ext. 'A' wherein at 2 places the first informant put his signatures. It clearly shows that the disputed land was sold to the accused and another. However, a registered deed was to be executed in due course. There was a clear declaration that by virtue of the deed marked Ext. 'A' the accused and another could use, occupy and/or possess the property. The first informant has denied that he ever sold the land and the house to the accused. However, D.Ws. 1 and 2 proved the execution of the deed by the parties. D.W. 1 stated that Ext. A(1) was read over to the first informant. I have perused Ext. A(J), the signature of the first informant in the ejahar and find that the signatures marked A(l) and A(2) appear to be the same with that put by the first informant in the Ejahar. It may be stated here that Ext. A was seized by the police in connection with the investigation of the case in question, vide seizure list marked Ext. 2. As such, the prosecution was fully aware as to the existence of the document and the contents thereof. However, the prosecution did not produce any evidence to show that the Ext. A was not executed by the first informant and/or the contents thereof were false or incorrect. From the evidence of the investigating officer it appears that the document Ext. A was seized during the investigation of the case. Ext. A contains the signature of the first informant at 2 places to support the fact that it was executed by the First Informant. The deed itself shows that on receipt of consideration of Rs. .6007-the first informant handed over possession of the land and house and agreed to get the deed duly registered in due course. It appears clear that Ext. A, the document, was not produced for the first time by the accused person from his own pocket during the course of trial but it had been seized by the police in connection with the investigation of the case. As such, the plea of the accused is based on documentary evidence marked Ext. A. His case is that the entry upon the land and/or the house was made under bona fide claim of right. The claim was well founded in law, claimed the accused. His real or dominant as well as subsidiary intent was based on the document marked Ext. A. He claimed that he was a bona fide purchaser of the land for value and on that right he was occupying the property. He had no criminal intent.
3. On behalf of the prosecution 8 witnesses were examined although the document marked Ext. A was seized in connection with the police investigation nobody including the : first informant ever asserted that the land described in Ext. A was not the land in dispute in the instant case. On the other hand the first informant denied that he had any agreement to sell the land referred in Ext. A. Admittedly, the accused was in possession of the house since 7-3-76 till the ejahar was lodged. There is no evidence to show that on any subsequent point of time the accused was dispossessed from the land. As such the accused was in possession of the property at all relevant time. He claims that his right of possession of the land was based on Ext. A. The prosecution did not adduce any evidence to rebut the claim of the accused.
4. Ext. A clearly shows that the possession of the land described therein was handed over to the accused and another, on 8-2-76. On perusal of the deed learned Magistrate reached the conclusion that mere execution of an unregistered sale deed by itself did not prove that the accused was in possession. Secondly, learned Magistrate reached the finding -
It is probably true that dominant intention of the accused was to set up civil title to the house to which he has no lawful claim but he had the subsidiary and subordinate intention of annoying the informant (P.W. 1).
In so far as the first finding is concerned! find that it was the prosecution case that the accused was in possession of the house in question. Further possession of land described in Ext. A was handed over to the accused and another prior to the alleged date of dispossession. Ext. A clearly shows that the possession of the land was delivered to the accused by the vendor prior to Mar. 7, 1976. The accused was in continuous possession of the land. In my opinion learned Magistrate was wrong in reaching the conclusion that on the basis of subsidiary or subordinate intent of the accused a conviction is maintainable under Section 448 I.P.C,
5. In Sinnasamy v. King 1951 Cri LJ 173, while dealing with the offence of Criminal trespass the Privy Council observed that the offence of criminal trespass is confined to cases to which the trespass is committed with the particular intent and the intention specified indicates that to class of trespass to be brought within the criminal law is one calculated to cause a breach of the peace. The section was not intended to provide a cheap and expeditious method of enforcing a civil right. Dealing with the question of criminal trespass the Privy Council observed as under:.Entry upon land, made under a bona fide claim of right, however ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent, or at any rate constituted no more than a subsidiary intent.
The claim of right of the accused, in the instant case, was on the basis of a document marked Ext. A duly executed by the first informant. It was very much in existence at all relevant time and the prosecution did not make any endeavour to show that the disputed property is not covered by Ext. A. Further no attempt was made by the prosecution to prove that the document was forged or did not contain correct statements of facts. As such the entry upon the property and possession was made under a bona fide claim of right. The .prosecution has failed to establish that the claim of right was a mere cloak to cover the real criminal intent. Under these circumstances I am constrained, to hold that the continued possession of the accused was bona fide. The claim cannot be said to be ill-founded. In Smt. Mathri v. State of Punjab , their Lordships dealt with a case where the persons armed with a warrant of execution for delivery of possession, the date for execution of the warrants had expired, got delivery of possession. The question arose whether the accused were guilty of criminal trespass.
It has been held that it might be that the accused knew that annoyance would result when they went on the land for taking possession, yet it was reasonable to think that the intention of the party which prompted and dominated their action was to execute the warrants, although it could not have been lawfully executed or had ceased to be executable in law. Their Lordships held that under these circumstances it was proper to hold that criminal trespass was not committed by the accused. Their Lordships observed that in order to establish that entry on the property was with the intent to annoy, intimidate or assault, it was necessary for the court to be satisfied that causing annoyance, intimidation or insult was the aim of the entry; that it was not sufficient for that purpose to show merely that the natural consequence of the entry was likely to cause annoyance, intimidation or insult and that likely consequence was known to the accused.
6. In Hathi Singh v. State of Rajasthan , Fazal Ali, J. speaking for the Court held that the question of commission of criminal trespass could not arise when the accused had acted under bona fide claim of right.
7. In the instant case what I find that the accused had not only asserted his legal right to possess the disputed property but produced document to show that he had some right to be there until evicted by a competent Court. The claim of the accused cannot be held to be mala fide nor can it be described as ill-founded in law. In the instant case the prosecution has miserably failed to show that the real or the dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the first informant and/or the claim asserted by the accused was merely a cloak to cover his real intent. The claim of the accused is persistent and consistent ab initio. The prosecution has failed to establish that the accused had the requisite intent prescribed in Section 441 of the I.P.C.
8. For the foregoing reasons I hold that the conviction and sentence must be set aside which I hereby do.
9. In the result the petition is accepted. The conviction and sentence are set aside.