1. Jagannath Singh and Kundan Singh were, on a complaint by Sangeet Kishtaiyya, convicted for offences of criminal tresspass and assault otherwise than on grave provocation under Sections 376 and 292, Hyderabad Penal Code and sentenced to pay a fine of Rs. 40/- and Rs. 10/- for each offence respectively. The learned District Magistrate, Asafabad, on separate appeal by the accused upheld the conviction and sentence passed by the Magistrate at Chinnoor.
2. As no second appeal was open to the accused in view of the provisions of Section 339, Hyderabad Criminal Procedure Code, they have applied in revision separately under Section 364 of the Code.
3. These revisions, which will be governed by this judgment were in the first instance heard by Mr. Justice Manohar Pershad. On the authority of 'in the matter of Govind Prasad 2 All 465, Shah Muhammad v. Ganesh Das 2 CriLJ 83 (Lah), Bhupat Mandal v. Kartik Jha AIR (23) 1936 Pat 170, Raghava Reddy v. Yera Reddy 20 Deccan LR 457 and Syed Ahmed v. Sarkar-e-Aalee 24 Deccan LR 154, it was argued before the learned Single Judge on behalf of the petitioner that re-entry into land from which a person has been ejected by civil process or of which possession has-been given to another is not a criminal trespass unless the intent to commit an offence or to intimidate, insult or annoy is conclusively proved; and Queen Empress v. Rayapadayachi 19 Mad 240 was relied on for the propositions that although a trespasser may know that his act if discovered will be likely to cause annoyance it does not follow that he does the act with that intent. The learned Advocate for the complainant-opponent to support the judgments of the Courts below referred in his arguments to Shanker Singh v. Sarkar-e-Aalee 32 Deccan LR 228, Sarkar-e-Aalee v. Lingappa 35 Deccan LR 173 and Pedda Narasaiyah v. Sarkar-e-Aalee 36 Deccan LR 7 at p. 8 to show that re-entry of ejected person after execution of decree would raise a presumption that re-entry was with the intent to intimidate or annoy within the meaning of Section 371, Hyderabad Penal Code.
4. The learned Judge on perusal of these cases formed the opinion that in these revisions important legal points were involved and that there were different view points. Therefore, he referred the petitions to the Division Bench under Section 5, Hyderabad High Court Act, with the question 'whether mere trespass would constitute an offence or there should be criminal trespass.'
5. In so far as the question in abstract form is concerned, we have not been referred to any ruling of this High Court which differs from the view that in order to the constitution of the offence of criminal trespass there must be proof of an intention to commit an offence or to intimidate, insult or annoy the person in possession of the property. It has all along been held that the essence of criminal trespass is the intention to do one or the other of the acts specifically referred to in the definition of the offence, and that when criminal intention is an ingredient of the offence it is on the prosecution to prove that intention just as much as any other ingredient, A conviction cannot follow merely because one can pronounce with certainty that the accused must have known that his act would, as one of its inevitable incidents, cause annoyance. Each case must be dealt with on its own facts and on its own merits. Intention, being a subjective ingredient of the offence is seldom capable of direct proof. It is to be gathered from the conduct of the accused or circumstances of the case.
6. The facts out of which these revisions arise are: the complainant brought a suit for recovery of two acres and five guntas out of survey No. 121 situate in Chinnoor from the accused Jagannath Singh alleging ownership on the basis of a sale-deed dated 9th Shehrewar 1356F. The defence was that the disputed land did not form part of Survey No. 121 but formed a portion of Survey No. 124/1 which was within the exclusive possession and ownership of the defendant. The learned Munsif of Chinnoor did not believe the defence and decreed the suit for possession. The decree was sent for execution to the Assistant Civil Administrator and the complainant was on 18 Thir 1358F. put in possession of the disputed plot in the presence of Jagannath Singh.
7. The present complaint was made on 11 Shehrewar 1358F, on the allegation that while the complainant was ploughing the plot of land the possession of which was recently delivered to him in execution of the decree, Jagannath Singh along with his son Kundan Singh trespassed on the land and with a show of force dispossessed him again. The defence on behalf of Jagannath Singh was the same which was put forward in the civil suit.
8. Both the Courts below have concurrently held on evidence that the defence was an hopeless attempt to bolster up a plea which after contest had been negatived by a competent civil Court, and he cannot assert any genuine claim or right to regain possession. The case is therefore, very different from the Allahabad case in '2 All 465', where a decree has been obtained against the accused and possession given to the complainant thereunder, 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 facts 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 of which possession has been given to another for the purpose of asserting rights he 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 right of his co-sharers.
9. No such assertion is available to the accused in this case and the accused in their statements to the Court did not set up any reasonable ground on which they could still claim to be entitled to regain or to remain in possession. To our mind 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 page 2242:
The plea of a bona fide claim only arises in cases 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's 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.
10. The rule laid down by the majority of Judges in Ram Saran v. Emperor 12 Pun Re 1906, is that when a person enters without any legal justification upon property in the established possession of another, he must be inferred to have had an intention to annoy the person in possession.
11. Our High Court's view concords with the view taken by Punjab Chief Court as would be apparent from a perusal of the cases cited by the learned Advocate for the complainant. We do not see any reason to differ from that view or refer the matter to a fuller Bench. For these reasons we decline to disturb the judgment and order of the Courts below. The revision petitions are therefore dismissed.