1. The petitioners have filed this revision petition against the order passed by the Second City Magistrate, Mysore in C. C. No. 5596 of 1961 convicting them in a summary trial for the offence of house trespass under Section 448 of the Indian Penal Code and sentencing each of them to pay a fine of Rs. 100/-, in default to undergo simple imprisonment for one month.
2. The prosecution was started on a complaint filed by the respondent on 19-7-1961 complaining that the accused committed house trespass punishable under Section 453, I. P. C. by forcibly entering into a portion of the building bearing No. 81 in Kumaraswamy Galli, Killed Mohalla, Mysore City on 13-9-1960 at about 6-45 A.M. after breaking open the lock. The accused pleaded not guilty. On the evidence the learned Magistrate held that the accused had committed house trespass and had forcibly entered into the house in the possession of the complainant with intent to cuisine annoyance and wrongful loss. He. however, expressed that he was not prepared to believe the uncorroborated testimony of the complainant on the Question of breaking of the lock. He accordingly passed the order of conviction and sentence mentioned above.
3. In this petition, the learned Advocate for the petitioners Sri Mahesh Chander Guru has not disputed the facts found by the Magistrate, but his primary contention is that the learned Magistrate committed an error in convicting the accused as they could not be credited with the intention of causing annoyance to the complainant who was not present in the building at the time of the entry by the accused. Section 441. I. P. C. which defines criminal trespass lays down that whoever enters into or upon a property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property is said to commit criminal trespass. Section 442, I. P. C. enacts that whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, or any building used as a place for worship, or as a place for the custody of property, is said to commit house-trespass. Reading the two sections together and referring only to the relevant portions it would be quite clear that whoever enters into or remains in any building used as human dwelling house with intent to intimidate, insult or annoy any person in possession of such property shall be guilty of house-trespass. None of these two Sections requires that the person in possession of the building must be present at the time of entry; it is enough if the property is in the possession of the complainant and the entry is effected by the accused with the intention of intimidating, insulting or annoying him. To hold that the person in possession must be present when the accused enters into or upon the property is to introduce an element which is not to be found in Sections 441 or 442 of the Indian Penal Code.
4. The learned Advocate for the petitioners has relied upon two decisions of the Calcutta High Court in Bata Krishna Ghose and Ors. v. The State : AIR1957Cal385 and The State v. Abdul Sukur : AIR1960Cal189 . In the former case it was laid down that if the complainant was not present to be intimidated, insulted or annoyed, there could be no conviction unless it could be found upon evidence that there was intent to commit an offence. The latter decision followed the former decision and it was held that a person in constructive possession is not contemplated by Section 441 of the Indian Penal Code. It is not necessary for me in the present case to consider the question as to whether a person in constructive possession would fall under the category of 'person in possession' within the meaning of those words used in Section 441. But it is sufficient to observe that to say that there could be no criminal trespass upon the property in the lawful possession of another unless the person in possession is actually present at the time of the entry would be to narrow down the plain meaning of the words used in that Section. It appears that there is conflict of views on this point between different High Courts. The learned Advocate for the respondent has drawn my attention to certain decisions which disagree with the view taken by the Calcutta High Court.
In Subhana v. The State : AIR1954All193 a Division Bench of that High Court considered the scope of Section 441 of the Indian Penal Code and came to the conclusion that the essence of the offence is the intent to commit an offence and not the presence or absence of the person against whom that intent is to be held. The intention to annoy may be there in spite of the fact that the person against whom that intention is held may not be actually present at the time of the entry. In that case, as in the present case, the complainant had acquired possession of the property with the help of the Civil Court; the accused usurped possession of the house by breaking open the lock and clandestinely entered into the house. It was held that the act of the accused could not but be a source of great annoyance to the complainant and one done to annoy the complainant who was in actual possession of the premises in suit. Chaturvedi, J. who delivered the decision of the Bench observed that:
'It would be going against the very spirit of Section 441, if it were held that no criminal trespass would be committed against a person in peaceful possession merely because a trespasser manipulates his entry in such a way as to go to the property in possession of another at a time when the person in peaceful possession has temporarily gone out. There is nothing in Section 441 to confine its operation only when the person in actual possession and the trespasser making the forcible entry are present physically on the property on which trespass is committed.'
The same view was taken in Jodha Ram v. State : AIR1954All67 where it was explained that the annoyance spoken of in Section 441 was not intended to be instantaneous, i.e., at the moment of entry and that it might happen subsequently. Where the accused knows that the property is in the lawful possession of another and illegally enters into possession of it in the absence of another, his intention cannot be anything else but that of causing annoyance to the person in possession, unless it be under a bona fide assertion of right to possession. A Division Bench of the Bombay High Court In re, Daga Bhika Kunbi AIR 1928 Bom 221 has also held that an accused causing obstruction to a person in lawful possession by illegitimate means by going upon the land and obstructing his tenant in the cultivation of the same would be clearly guilty of the offence under Section 441 as he could be presumed to have voluntarily done the act knowing at the time that in the natural course of events he would be causing annoyance to the person in possession. In that case the complaint had been filed by the decree-holder who had been put in possession of the land attached' by the Civil Court and bad leased the land to a tenant and the obstruction had been caused by the accused while the land was being ploughed. It does not appear from the facts of that case that the complainant was actually present at the time when the accused obstructed the tenant in the cultivation of the field. The Madras High Court has also taken the same view in Hyder Sahib v. Sabjan Sahib : AIR1931Mad560 . In that case the petitioner had obtained possession in due course of law and had locked the house and gone out. The accused was found in the house when the complainant returned. In allowing the Revision Petition filed by the complainant Jackson, J. held that such possession was included in the word 'possession' in Section 441 of the Indian Penal Code and that it could not be said that there was no annoyance or offence unless the person in possession was actually sifting in his house or godown. A Division Bench of the Hyderabad High Court subscribed to this view in Jagannath Singh v. Sangeet Kistavya AIR 1952 Hyd 50 where their Lordships held that when a person enters without any legal justification upon the property in the established possession of another, he must be inferred to have had an intention to annoy the person in possession. In their Lordships' view re-entry of ejected person after execution of decree would raise a presumption that re-entry was with the intent to intimidate or annoy. With respect, I am unable to agree with the view expressed by the Calcutta High Court in the two decisions referred to above since I am in full agreement with the other aforesaid decisions where it has been laid down that physical presence of the person in lawful possession of the house is not necessary at the time of the accused's entry into such house if the evidence and the circumstances justify the conclusion that such entry into, the house, or remaining in possession of the house after an unlawful entry was with intent to intimidate, insult or annoy the person in possession. In my opinion there is no substance in the contention of the learned Advocate for the petitioners.
5. It was contended on behalf of the petitioners that the trial of the accused was barred by Section 403 of the Code of Criminal Procedure as a prior complaint in respect of this very offence had been withdrawn by the complainant and that the withdrawal had the effect of acquittal. To appreciate the merits of this contention it is necessary to refer to an earlier litigation between the parties.' The complainant was put in possession of the entire house property by the Civil Court on 24-9-1959. The accused forcibly entered into a portion of the property on 12-12-1959 and the complainant filed a criminal complaint in respect of this house-trespass in C. C. No. 6418 of 1959. That complaint was dismissed due to the absence of the complainant. The accused forcibly entered into another portion on 13-9-1960 and C. C. No. 4777 of I960 was filed by the complainant not only for the trespass of 13-9-1960 but also with regard to the earlier trespass of 12-12-1959. At the end of the trial, the accused submitted that they had been tried once for the offence of 12th December 1959 and that that trial was barred under Section 403 of the Code of Criminal Procedure and that they had not cross-examined the complainant and his witnesses as regards the offence of 13-9-1960 as their attention had not been drawn to it. The complainant filed an application for withdrawal. The learned Magistrate then passed the following orders:
'Pleaders present. The accused submit that they have not cross-examined the P.Ws. in regard to the offence alleged in para 5 of the complaint petition (i.e., the offence dated 13-9-1960) and their attention is not drawn to that. The accused have no objection for the complainant filing a fresh complaint regarding the offence alleged to have been committed on 13-9-60. In the light of the submission by the accused complainant withdraws his complaint regarding the said offence with liberty to file a fresh complaint. Therefore the accused are acquitted with the offence charged that is dated 24-9-59 and set at liberty.'
This order was passed on 29-6-1961 and the present complaint was filed on 19-7-1961. It would therefore be clear from the contents of this order of acquittal that it was restricted to the earlier offence of 1959, though the Magistrate wrongly referred to that date as 24-9-59, which is the date on which the complainant was put in actual possession of the property by the Civil Court. As regards the offence of 13-9-1960 which is the subject-matter of the present trial, the Magistrate permitted the complainant to withdraw the complaint in the light of the submission made by the accused with liberty to file a fresh complaint. The learned Advocate for. the Petitioners submits that this withdrawal operates as an acquittal.
6. It may be observed at the outset that there is no provision in the Code of Criminal Procedure which enables a complainant in a warrant case to withdraw his complaint at any stage of the trial. Section 248 of the Code of Criminal Procedure which empowers a Magistrate to grant permission to the complainant for withdrawal of the complaint on sufficient grounds being shown applies to cases which fall in Chapter XX in which that Section is included. Chapter XX deals only with the trial of summons cases and it cannot be disputed that that Section has no bearing on the withdrawal of warrant cases. Section 249 merely refers to the power of a Magistrate of the First Class or of any other Magistrate with the previous sanction of the District Magistrate, to stop the proceedings at any stage without pronouncement of any judgment either of acquittal or of conviction and to release the accused for reasons to be recorded in writing by him. The opening words of this Section viz., 'In any case instituted otherwise than upon complaint' obviously Tenders that Section inapplicable to the present case which has been started upon a complaint by a private individual. Section 253 which deals with the trial of a warrant case instituted otherwise than on a police report, only empowers a Magistrate to discharge the accused either where he finds the charge to be groundless or the evidence on 'record under Section 252 does not disclose a case which, if unrebutted, would warrant conviction of the accused. The only Section which refers to withdrawal of a warrant case is Section 494 of the Code of Criminal Procedure, That Section however enables a Public Prosecutor to withdraw from the prosecution of any person with the consent of the Court. Where the Court consents for such withdrawal, it has to discharge the accused if the withdrawal is permitted before a charge has been framed, and pass an order of acquittal if the withdrawal is permitted after a charge has been framed. This Section does not empower a private party to apply for withdrawal as obviously the policy of the Code is to regard withdrawal of all warrant cases as the concern of the State.
7. In this view of the legal position, the order passed by the Magistrate permitting the complainant to withdraw his complaint with liberty to file a fresh complaint is obviously not warranted by any provision of law. The learned Magistrate seems to have invoked the provisions of the Civil Law which permits a party to withdraw his suit with liberty tp file a fresh suit, into the domain of criminal trial which is governed by the Code of Criminal Procedure containing no provisions for granting such permission. Can it be said, under these circumstances, that the order of the Magistrate has. the legal effect of an order of acquittal as contended by the learned Advocate for the petitioners? Section 403 of the Code of Criminal Procedure prohibits the trial of a person who has been once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence, while such conviction or acquittal remains in force,, from being tried again for the same offence. The explanation to this Section lays down that
'The dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of the accused or any entry made upon a charge under Section 273, is not an acquittal for the purposes of this section.' '
It is manifest from the facts stated above that no charge had been framed with regard to the offence of 13-9-1960 and it was on the submission of the accused that they had not cross-examined the complainant and his witnesses as their attention had not been drawn to that charge, that no order of acquittal or discharge was expressly recorded by the Magistrate. It should be borne in mind that the Magistrate recorded an order of acquittal in respect of the offence of 1959. In determining what is the effect of an order passed by a Magistrate at the conclusion of a trial or while dropping a proceeding, the vital point to be considered is how the Magistrate treated the matter and what order he could have passed in exercise of the jurisdiction vested in him by law. In T. Musalayya v. M. Ranga Sao : AIR1933Mad98 a police chargesheet had been filed against the accused for offences under Sections 147 and 323 of the Indian Penal Code. Subsequently the Public Prosecutor withdrew from the prosecution under Section 494 of the Code and the Magistrate signed an order acquitting the accused. A private complaint was subsequently made against the accused under Sections 147 323 and 341 of the Indian Penal Code and it was contended that the order passed by the Magistrate operated as a bar under Section 403 of the Code of Criminal Procedure to the subsequent trial. In considering the effect of the earlier order, Bardswell, J. observed that
'.....What, however, has to be looked to is not what view can be taken of the case now but how it was treated at the time of the withdrawal.
XXXXX. The only legal order that the Magistrate couldpass on allowing the withdrawal was one of dis-charge and that he meant to pass such an order ifshown by the note on the docket in his own writ-ing and over his initials, that the accused weredischarged. xx x x.
I am of opinion that an order that purportsto be one of acquittal has to be regarded as oneof discharge when under the provision of law thatwas applied, only a discharge order could bepassed. xxxx.'
In the present case neither an order of acquittalfor one of discharge was passed, and the Magistrate could not have passed an order of acquittalas the case was a warrant case and no charge hadbeen framed in respect of that offence. The learned Advocate for the petitioners has drawn myattention to a decision of the Calcutta High Court in Kanai Hizra v. Golaf Hizra : AIR1953Cal197 . That case docs not help the petitioners. There, the complainant had filed a private complaint alleging that the three petitioners hit him with an iron rod, brickbat and broomstick at the railway station. Summons had been issued by the Magistrate to answer the charge under Section 352 of the Indian Penal Code and the case was fixed for examination of the complainant on 3-7-1957; as the complainant did not turn up, the learned Magistrate directed the accused to be acquitted under Section 247 of the Code of Criminal Procedure. It may be noted that the offence punishable under Section 352 is a summons case and the Magistrate was legally competent to pass an order of acquittal under Section 247 of the Code. Therefore, when the complainant filed another complaint on 4-7-1951 on the basis of the self-same facts on which he had made his previous complaint, it was contended that the subsequent trial was barred under Section 403 of the Code. Their Lordships held that on a plain meaning of Section 403 the fresh trial was not competent and accordingly quashed the same. In the present case, there is no order of acquittal and the order passed permitting withdrawal of the complaint can by no stretch of imagination be interpreted or regarded as an order of acquittal.
In Yusopalli Mulla v. The King the Judicial Committee of the Privy Council had to consider the effect of an order of acquittal under Section 403 of the Code of Criminal Procedure passed by a Court without jurisdiction on a subsequent trial on the same fads. The appellant was a dealer in crockery, glassware and cutlery in Bombay and was charge-sheeted for an offence of hoarding and profiteering under the Hoarding and Profiteering Prevention Ordinance, 1943. After the charge was framed and the prosecution witnesses were examined, it was submitted for the prosecution that the Court was not competent to try the accused for the offence as the sanction granted for the prosecution under Section 14 of the Ordinance was not valid and that the prosecution did not wish to recall the other witnesses for cross-examination. On that submission, the learned Magistrate passed an order that 'as the invalidity of the sanction invalidates the prosecution in Court, the accused was acquitted.' In a subsequent trial on the same facts and for the same offence after obtaining a valid sanction, it was contended that the former order operated as an order of acquittal. Their Lordships of the Judicial Committee held that
'.....the order of acquittal in such a case would be without jurisdiction and would only operate as order of discharge, and would not bar a second trial of the same accused on same facts.'
Taking the facts and the relevant provisions of law into consideration, I have no manner of doubt that the order passed by the Magistrate permitting the complainant to withdraw his private complaint with liberty to file a fresh complaint was one without jurisdiction and that the legal effect of that order is one of discharge of the accused without trial and not of acquittal. In this view, the present prosecution was not barred by the provisions of Section 403 of the Code.
8. The last contention urged by the learned Advocate for the petitioners is that the judgment of the learned Magistrate was not in conformity with Section 265 of the Code and that the order of conviction and sentence should therefore be quashed. Section 265 of the Code deals with the language of record and judgment in summary trials. Sub-Section (1) on which reliance has been placed, reads thus:
'Records made under Section 263 and judgment recorded under Section 264 shall be written by the presiding officer, either in English or in the language of the Court, or, if the Court to which such presiding officer is immediately subordinate so directs, in-such officer's mother-tongue.'
The contention of the learned Advocate is that in this case the judgment was not written by the presiding officer in his own hand as required by the Section and that it deserved to be quashed in? view of the decision of the former Mysore High Court in Nagappa Setti v. Holalkere Municipal Council, ILR 1955 Mys 247: ((S) AIR 1955 Mys-109). In that case a learned single Judge of the Mysore High Court held that as the judgment in. that case had been dictated to the stenographer by the Magistrate instead of writing it himself, it clearly contravened the provisions of Section 265(1) and was therefore illegal. The learned Judge accordingly set aside the order of conviction and sentence and declined to order a re-trial in view of the technical nature of the offence under the Town Municipalities Act.
As against this decision, the learned Advocate for the respondent has drawn my attention to a decision of the Allahabad High Court in Abdul Aziz v. State : AIR1956All637 where a learned single Judge of the Lucknow Bench held that the words 'shall be written by the presiding officer' included the dictation of an order by the presiding officer which is typed by some one else. He further observed that so long as the typed record bore the signature of the presiding officer in his own hand and not merely stamped it fulfilled the requirements of Section 265(1) of the Code. The learned Judge of the Mysore High Court relied upon a decision of the Madras High Court in Subramanya Ayyar v. Queen, ILR 6 Mad 396 as supporting his point of view. It was held in that case that the affixing of signatures with the stamp and not with a pen by the Magistrate would be an irregularity and that it had not been shown in that case that the petitioner had in anyway been prejudiced by the nature of the signature. The Court also considered that in appealable cases, the judgment should be written by the presiding officer and that there was no provision in the Code-enabling him to distribute that duly to a clerk. Their Lordships observed that the irregularity was-a grave one but did not decide as to what the effect of that irregularity would be There was however, no interpretation of the word 'written' in that case as pointed out in the Allahabad decision.
9. In the present case, the judgment does not appear to have been dictated to a stenographer as contended by the learned Advocate. The only endorsement at the end is 'pronounced in open Court'. The judgment is no doubt a typed one. The normal practice is that when the judgment is dictated to a stenographer in Court there is an endorsement to that effect. The absence of an endorsement to that effect inclines me to conclude that the judgment must have been typed by the Judge himself. I do not think that the words 'shall be written by the presiding Officer' should be so interpreted as to exclude the typing of judgment by the Magistrate or the Judge himself. Even assuming for the sake of argument that the judgment had been dictated, it would at the most be an irregularity. On reading Sections 263, 264 and 265 of the Code together, it will be noticed that these sections which deal with the record and judgmeat in appealable or non-appeable cases in summary trials indicate the details which the record should disclose and what the contents of the judgment should be. Section 264 requires a Magistrate in a summary trial in which an appeal lies, to record in the judgment 'the substance of the evidence and also the particulars mentioned in Section 263'. It would thus be manifest that the requirements of these sections obviously refer to matters which are purely of a formal character and matters which are of a substantial nature having reference to the merits of the case. A judgment could be held to be bad in law only if it contravenes the relevant section in their substantial aspects. If, for example, a judgment does not contain the record or the substance of the evidence and the reasons of the Judge for the conclusions drawn by him, certainly the Court can hold that such a judgment is not in conformity with the provisions of law. If on the other hand, the judgment complies with all the Sections actually in regard to their substantial aspects dealing with the merits of the case as. such, I do not think that failure to comply with a formal requirement of the character in question would vitiate the judgment. At the most, it would be an irregularity curable under Section 537 of the Code. It was also argued that the Magistrate had failed to put his initials on the typed pages. That is so. That, again, in my opinion, is a formal requirement and cannot be held to be material in the absence of prejudice or injustice being caused to the accused.
10. For all these reasons, I am of opinion that the petitioners were rightly convicted for the offence punishable under Section 448 of the Indian Penal Code. The petition is accordingly dismissed.
11. Petition dismissed.