R.K. Das, J.
1. This is a complainant's appeal against an order dated 13-12-1963 passed by the Magistrate, Puri, acquitting the respondents of an offence under Section 454, Indian Penal Code.
2. The Puri Municipality has a number of shop houses in the Municipal Market, Puri, which are let out on monthly rent. The prosecution case is that the complaint (P. W. 1) and his nephew Hadibandhu (P. W. 2) had taken one such house (Room No. 1) in the Municipal Market on a monthly rent of Rs. 25/-. On 7-2-1963 the accused persons who are employees of the Puri Municipality broke open the door of the said shop room, removed the articles therefrom, and made over the room to one Laxman Padhan. On a complaint filed by P. W. 1 the accused persons were duly, summoned to stand their trial on a charge under Section 454, I. P. C. Accused Lokenath Jena is Supervisor, accused Nityananda Singh is a peon and accused Rajkishore Misra is a rent clerk of the Puri Municipality.
3. The plea of the accused persons was of a denial. Their defence is that they were directed by the Executive Officer, Puri Municipality, to deliver possession of Room No. 1 to the highest bidder Laxman Padnan on the aforesaid date and in pursuance of the said direction they gave over possession to Laxman. They have also examined the record-keeper of the Puri Municipality and relied upon certain documents in support of their defence, such as Exts. A, B & C.
4. In addition to P. Ws. 1 and 2, the prosecution examined some more witnesses to prove that in fact the accused persons opened the shop, removed certain articles and gave delivery of the shop to Laxman Padhan. It is admitted that P. W. 2 was let out the shop-room by the Municipality, and this is supported by the rent receipts, Exts. 1 and 2 granted by the Municipality in the name of P. W. 2. The name of the complainant does not find place therein. Ext. 3 is a notice issued by their Executive Officer, Puri Municipality to P.W. 2, calling upon him to clear the arrears of rent tilt 31-11-62 and to deliver khas-possession of the shop-room to the Municipality and in case he failed to do so, legal action would be taken against him. P. W. 2 admits to have received this notice and also admits the correctness of its contents. In response to the said notice he has not given anything in writing to the Municipality, nor has he asserted that he has complied with the terms of the said notice or paid the arrears of rent.
As the rent was not paid, a further notice Ex. A was issued by the Municipality to P. W. 2 on 25-1-63 wherein it was again brought to his notice that as he had not complied with the directions in the previous notice; he had violated the conditions of the licence and the initial deposit made by him was adjusted towards rent until 31-1-63 and ho would cease to have any right of occupation from 1-2-63. Accused Nityananda Singh affixed this notice in front of the shop-room as P. W. 2 was not found as would appear from Ext. B. On 7-2-1963, the Executive Officer, Puri Municipality, issued an order directing delivery of possession of the shop-room to Laxman Padhan as he gave the highest bid for the said shop-room. In pursuance of this order the three accused persons went to give delivery of possession to Laxman, but as the room was locked, they broke open the lock, brought out certain articles, such as two baskets, nine new bags, one wooden bench and some staw, and delivered possession of the room to Laxman.
The room was let out for vegetable shop to P. W. 2, but it is in evidence that it was lying vacant for some time and no business was being carried on there. From the notice, Ext. 3, it appears that P. W. 2 was keeping the shop closed and thus violating the conditions for which it was let out to him. The complainant himself admits that there was no article in the shop except some empty bags and the bench as stated above. As admittedly the conditions of the notice, Ext. 3 were not complied with, the Municipality took necessary action as per Ext. A.
5. It appears that the name of the complainant does not appear in any of the records of the Municipality as a licensee of the shop-room No. 1. It was only let out to P. W. 2 Hadibandhu Sahu. P. W. 1, however comes forward with a case that he remains joint with P. W. 2 and the shop was taken in the name of P. W. 2 on behalf of the joint family. There is, however, nothing to show that P. W. 2 took the licence on behalf of the j6int family. All that he has said is that he and P. W. 2 had a joint vegetable business. He has stated nothing whatsoever if the vegetable business in the shop-room in question was a joint business. Under the circumstances, it was rightly contended by the learned counsel for the accused that there is nothing to show that the complainant was in possession of the shop-room so as to entitle him to put forward the grievance of the alleged trespass or annoyance being caused to him.
6. That apart, assuming that P. W. 1. was in possession of the shop-room in question, the further question arises whether an offence under Section 454 Indian Penal Code has been committed by the accused persons. As seen above, the accused persons went to deliver possession of the shop-room under orders of the Executive Officer of the Puri Municipality. To make out a case of criminal trespass, it is not enough to show that the accused persons merely effected an entry on the property of another, but what is necessary to find out is whether their main intention was to cause annoyance, intimidation or insult. That such annoyance, intimidation or insult may be the necessary consequence of such an act of entry but that is not enough. In a decision reported in AIR 1964 S C 986, Smt. Mathri v. The State of Punjab, in a case of this nature, their Lordships held that it is legitimate to think also that when Section 441 Penal Code speaks of entering on property with intent to commit an offence, or to intimidate, insult or annoy any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that may also be present.
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 and that it is not sufficient for the 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 persons entering. Their Lordships further held that where certain persons were armed with warrants of execution for delivery of possession though the date of execution of the warrants had already expired, and it might be that they knew that annoyance would result when they went on the land for taking possession, still it was reasonable to think that the intention which prompted and dominated their action was to execute the warrants. In my opinion, this decision of the Supreme Court fully governs the present case, and it is unnecessary to notice the other decisions cited at the Bar.
7. The accused persons are admittedly employees of the Puri Municipality and they were armed with the order (Ext. C) passed by the Executive Officer wherein they were directed for immediate compliance of the order. The accused persons merely carried out that order, their dominant intention being to execute the warrant and not to cause any annoyance, intimidation or insult to any person. Moreover, we have already seen that the story of possession of the complainant is not supported by any records of the Municipality.
8. Mr. Kanungo, the learned counsel for the appellant, contended that the action of the Municipality is illegal and high-handed and they are not authorised to evict tenants except through the process of law and the Municipality cannot take the law into their own hands and forcibly dispossess a licencee from the shop premises. That, however, is entirely a different matter. It is open to the complainant to take such other action as may be available to him. But so far as this appeal is concerned, no offence of criminal trespass has been made out against any of the accused in view of the legal position as stated above. The order of acquittal is accordingly maintained and the appeal dismissed.