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In Re: Daga Bhika Kunbi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application in Revision No. 452 of 1927
Judge
Reported inAIR1928Bom221; (1928)30BOMLR631
AppellantIn Re: Daga Bhika Kunbi
Excerpt:
.....the accused was absent, on december 17, 1926. the decree holder through her husband leased the land to the complainant on january 1, 1927; but, two days later, when the complainant went to the lands for harrowing, he was obstructed by the accused. on prosecution of the accused for criminal trespass ;-;(1) that section 41 of the indian penal code did not require the land to be in the actual possession of the complainant;;imperatrix v. keshavlal (1896) i.l.r. 21 bom. 536 followed :;(2) that the previous long possession of the lands by the accused did not give him a claim to remain in possession;;(3) that the fact that the accused was absent when possession was given to the auction purchaser by the court did not prevent the possession being of any validity against him;;(4) that the..........field on december 17, 1926. the decree-holder batanbai through her husband shaligram leased the land to the complainant on january 1, 1927. the evidence shows that actual possession was given, the land being ploughed over to a certain extent on behalf of the decree-holder. the accused was not actually present, but he was informed by the bailiff about the possession having been given under this decree and is said to have stated he did not recognize its validity. on january 3, the complainant went to the field with his servants for harrowing, but no sooner had he entered it than he was obstructed by the accused, who prevented the complainant and his men from doing any work upon it. the accused was consequently charged with the offence of criminal trespass under section 447 of the indian.....
Judgment:

Fawcett, J.

1. The facts, out of which this application arises, are sufficiently stated in the judgment of the Sessions Judge at Dhulia. Briefly stated, the field, which is the subject matter of the case, had been sold in execution of a money-decree against the accused, and possession had been given to the auction-purchaser in 1914. Obstruction was then offered by the accused sons, but eventually a decree was obtained against them and possession given of the field on December 17, 1926. The decree-holder Batanbai through her husband Shaligram leased the land to the complainant on January 1, 1927. The evidence shows that actual possession was given, the land being ploughed over to a certain extent on behalf of the decree-holder. The accused was not actually present, but he was informed by the bailiff about the possession having been given under this decree and is said to have stated he did not recognize its validity. On January 3, the complainant went to the field with his servants for harrowing, but no sooner had he entered it than he was obstructed by the accused, who prevented the complainant and his men from doing any work upon it. The accused was consequently charged with the offence of criminal trespass under Section 447 of the Indian Penal Code. The Magistrate held that the evidence for the prosecution clearly showed that the accused had trespassed on the land on the date of the alleged offence, and that the accused was not in possession at that time. But, on the other hand, he held that there was no clear proof that the complainant was given actual possession of the land, and as that is one of the ingredient required to constitute the offence of criminal trespass, lie discharged the accused under Section 253 of the Criminal Procedure Code. He says, in his judgment, that there was no evidence to show that the complainant took possession of the field from Shaligratn, the husband of the decree-holder, io whose possession the Jand was on January 1, 1:427, and that Shalignun ought to have been the complainant in this ease. This latter objection may be at once dismissed, because under the ruling in Imperatrix v. Keahavlal I.L.R. (1896) Bom. 536 it has been laid down that Section 441 does not require the land to be in the actual possession of the complainant.

2. The complainant applied to the Sessions Judge to have this order of discharge set aside and further enquiry made. The Sessions Judge dismissed the application. In doing so, he went on somewhat different grounds to those taken by the Magistrate. He held that the evidence did not establish that the complainant, or even his landlord, had got actual possession of the field from the opponent and that the latter was rightly discharged. He held that, as the accused was not present when possession was handed over on December 17, 192', and the evidence showed that the accused had been in possession of the land for a number of years, and was even at the time of the application still in possession, it could be said that he put forward his right to his own possession and to ouster of others merely as a cloak to cover a criminal act. He says:-

'Unless a criminal Court is satisfied that the civil right claimed by an accused person is merely a disguise for the purpose of committing an offence that court would not be justified in proceeding criminally against the accused. The parties should he relegated to a civil Court. I do not wish to say that the opponent baa proved his right to resist the complainant's entry into his field. All 1 say is that it is not shown that the complaint or even his landlord has got actual possession of the field from the opponent.

3. To the extent that there is a concurrent finding of fact that the complainant was not in actual possession, this might, be held for be a reason for our not accepting this application, in view of the practice of this Court not to go into questions of fact in revision But, in the present cases there is a difference of opinion on the point whether the landlord Shaligrm, as agent of the decree holder Ratanbai, had actual possession. The Magistrate clearly finds he had, and the Sessions Court's opinion to the contrary seems to be based simply on the accused long possession and the was not person the time when the bailiff gave possession to Shaligram's gumasta. There is, however, the clearest authority for the proposition that, if possession given under a Court's decree or order that possession binds a party to the suit, who was formerly in possession. Even as regards giving symbolical possession, it was laid down of Hirachand v. Bala (1899) 1 Bom. L.R. 48 that the delivery such possession as between the parties to the suit amounts to a transfer of possession from one party to the other, and that baa been confirmed by the Privy Council in Radha Krishna v. Bum Bahadnr (1917) 20 Bom. L.R. 502, p.c. of. Mahadevappa v. Bhima (1921) 24 Bom. L.R. 232. There is no authority for the proposition that the mere absence of the accused at the time of giving possession, affects the validly of such possession; nor, of course, does prior possession of the land by the accused, and his predecessors-in-title. Therefore, the finding of the Sessions Judge, to my mind, goes against, elementary principles of civil law.

4. In the present case there is also the fact that the accused cannot assert any genuine claim of right to retain possession, such as that ha is a member of a joint Hindu family, consisting of himself and his sons, who are not bound by the decree. That method of obstruction has already been defeated; a separate decree has been obtained against these sons, so that the accused can not set up any juridical claim to possession on the strength of his sons' original rights in this field. The case is, therefore, very different from that of In the matter of the Petition of Gobind Prmad I.L.R. (1879) 465 where a decree had been obtained against the accused and possession given to the complainant there under, but the accused re-entered into possession under the assertion that his sons also had rights in the land which were not affected by the decree, and that he was a member of a joint Hindu family with them. The Court held that on those fact a the accused could not be convicted of criminal trespass. It was remarked that re-entry or remaining upon land from which a person has been ejected by civil process, or of which possession has been given to another, for the purpose of assorting rights ha may have solely or jointly with other persons, is not criminal trespass unless the intent to commit an offence or to intimidate, insult or annoy is conclusively proved; and it was held that the accused in that case was justified in protesting that what he had done had been with the bona fide object of asserting his rights or the rights of his co-sharers. No such assertion is available to the accused in this case; and the accused in his written statement to the Court did not sat up any reasonable ground on which he could still claim to be entitled to remain in possession. He merely relied on his previous long possession. To my mind, it is clearly a case where there is no plausible basis for any such claim. As is remarked in Gour's Penal Law of India, 3rd Edn., Vol. II, Article 4783, at p. 2242:-

The plea of a bona fide claim only wises in oases when the trespass is not of an aggravated kind and is supported by at least a plausible show of title or by such circumstances as would justify an inference that the accused intention was not to commit an offence or to insult, intimidate or annoy the person in possession, but merely to vindicate what he conceived to be his legal right.

5. All that the Government Pleader has put before us as a plausible basis for the accused notion that he still had a right to retain possession of this field is that he thought that his absence, when possession was given by the bailiff, pro vented the possession being of any validity against him. That, of course, is an idea for which three is not the a slightest foundation, and the claim cannot be said to be a bona fide one. To my mind the case falls within the words of the Sessions Judge, 'a disguise for the purpose of committing an offence.' The accused wishes to obstruct the person who has the title, not by legitimate means but by going upon the land and obstructing his tenant in the cultivation of the field. It is clearly a case, where the natural consequence of the accused act would be to annoy the tenant and the landlord. The Government Pleader relied upon Sellamuthu Servaigaran v. Pallamuthu Karuppan I.L.R.(1911) Mad. 186 as supporting the view that it is not sufficient to any that the natural consequence of his act would be to annoy. But this Court has not accepted that view. On the contrary, it has been held in Emperor v. Lakuhman I.L.R. (1902) BOm. 558, : 4 Bom. L.R. 280 that it must be presumed that when a man voluntarily does an act, knowing at the time that in the natural course of events a certain result will follow, he intends to bring about that result.

6. We think that, at any rate in a case of this kind, the evidence clearly establishes that the accused intent was to annoy the tenant, and that this is the only inference possible in the present cage. It is one of an aggravated kind, where a person is trying deliberately to prevent effect being given to a civil Court's decree and proceedings, und, in my opinion, both the lower Courts have grievously erred in taking the view they did. We, therefore, set aside the order of discharge and direct the Second Class Magistrate to continue the trial according to law from the stage which it reached before ha discharged the accused.

7. I may add that such remarks as I have made about the merits of the case are based on the present materials and are not intended to prejudice the accused, in any way, should he be able to establish that any evidence I have relied on is not true.

Mirza, J.

8. I agree


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