H.R. Khanna, J.
1. This revision petition, filed Dy Mata Din Singh, I directed against the order of the learned Additional sessions Judge, Hissar, affirming on appeal the conviction 01 the petitioner Under Section 448, Indian Penal oboe, dui reducing his sentence from a fine of Rs. 200/- to that of Rs. 75/-, or in default three weeks' simple imprisonment. Bhanwar Singh son of the petitioner, was also tried along With the petitioner but he was acquitted.
2. The prosecution case is that lara Devi, wire or the petitioner, let out a house, situate in Bniwani, to Krisnan Chand (P. W.) on a monthly rent of Rs. 4/- about 8 or years ago. Krishan Chand used to pay the rent of that House regularly to Tar a Devi. On the morning of lawsuit, It is stated, that petitioner along with his son, Bhanwar Blngh came to that house when Krishan Chand was away broke open the lock and took its possession uniawtuny. Report about this occurrence was lodged the same day by Krishan Chand.
3. The petitioner, at the trial, stated that the house in question had not been rented out to Krishan Chand. me trial magistrate accepting the prosecution evidence against the petitioner, convicted him.
4. On appeal, the conviction of the petitioner was not Challenged before the learned Additional Sessions Judge and the only prayer which was made was for reduction of sentence. The learned Additional sessions Judge briefly discussed the evidence adduced by the prosecution and founo It to be convincing. The defence version was Held to be not Worthy of credence. The conviction of the petitioner was, accordingly, upheld but the sentence was reduced from a line of Rs. 200/- to that of Rs. 75/-.
5. in revision, Mr. Gupta has argued that even if the facts, as found by the Courts below were accepted to do correct, the petitioner Is not guilty of the offence unaer Section 443, Indian Penal Code, it is urged that as Krisnan Chaml (P. w.) was not present at the time the lock of the house in dispute was broken and possession taken by the petitioner, it cannot be said that the petitioner maae His entry into the property in dispute with intent to intimidate, Insult or annoy the person in possession of such property.. Reference in this connection has been made to a Single Bench case Bata Krishna Gtiose v. The State reported in : AIR1957Cal385 . I have given the matter my consideration and am unable to subscribe to 'the proposition enunciated Dy the learned Counsel for the petitioner, Section 441 of the Code defines criminal trespass and reads as under-.
441. Whoever enters into or upon property In the possession of another with intent to commit an ottence or to intimidate, Insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with Intent thereby to intimidate, Insult or annoy any such person, or with mteni to commit an cffence, is said to commit 'criminal trespass'.
Criminal trespass, as defined in the above section, no doubt contemplates that the entry into or upon property in possession of another should be with intent to commit an thence or to intimidate, insult or annoy any person m possession of that property, and it is obvious that a mere entry Into or upon property in possession of anotner wiuwin the Intention specified in the section would not make we act of entry to be criminal trespass unless the case covered by the latter part of Section 441 which oeaia with cases of persons who having lawfully entered into or upon any property, unlawfully remain there with intern thereby to Intimidate, insult or annoy any such person or with intent to commit an offence.
There is nothing, however, in Section 441 which requires that the intimidation, insult or annoyance, which is causea to the person In possession of a property as a result of the entry upon that property, should be instantaneous and confined only to the moment of entry and not caused suose-quent to the entry. All that the section requires is that ira accused should make the entry with the intention to msuii, intimidate or annoy the person in possession and it immaterial that the actual intimidation, insult or annoyance is caused not at the1 time of the entry but subsequently. 10 hold that criminal trespass Implies an instantaneous intimidation, insult or annoyance upon the entry into possession of a property, would be going not only against the piam language of the section but would also lead to state or lawlessness and highhanded activities. In case the argument advanced on behalf of the petitioner were to be accepteo, no person, who has made a clandestine entry Into w house of another and whose presence Is discovered subsequently, can be convicted for the offence of criminal trespass on the groundi that whatever be the annoyance, intimidation or insult caused by the entry it was not caused at the time the entry was actually made, it would also lead to the result that a person can with impugnlty enter into possession of a property whenever the person In possession of the same Is away from that property.
6. The above result would lead to an impossible situation and would havei the effect of putting a premium on high-handedness. Such a view is, however, not warranted of the language of the section and, after giving the matter my consideration, I am of the opinion that the mere temporary absence of the person in possession would not mane any difference if the other ingredients of the offence of criminal trespass are established. 1 am fortified in the conclusion by the view taken in Jodha Ram v. State reported in : AIR1954All67 , in which it was observed as under:
It was urged that It could not be assumed that the Intention of the applicant was to 'annoy the complainant when the entry was made; into the house in the absence of the complainant. I cannot accept this contention, if the contention were accepted, this would give a free licence To landlords to take possession of tenants' property in their absence even for a short while. When a landlord taxes possession of a house in the absence of the tenant, the tenant is certainly annoyed when he comes to know that no was forcibly ousted from this nouse, The annoyance mica) is spoken of in Section 441, pc, 19 not intended to be inseams ous. it may happen subsequently, mere is no warrant for thinking that annoyance mentioned in the section must caused to the person in possession at the moment when another person enters into or upon the property, nttat has to be seen is the present intention of the accused. 11 the amused enters into possession ot the property in the possession of anotner with the intention to Annoy that person, the offence is completed even though the annoyance la not actually caused to the person in possession at the moment of entry. When the accusro knows that another person is lawfully in possession of property and illegally enters into possession of it, his intention cannot be anything else but that of annoyance to the person In possession.
Reference may also be mads to Jamuna Das v. emperors reported in AIR 1945 All 26 the relevant head-note of which reads as under;-
Accordingly where the accused breaks open the intention of the petition of a house in the possession of the complainant and takes possession of the Kothri in the absence of the complainant the accused must be preened to have entered into possession with the intent a least to annoy the complainant and would be guilty of an offence Under Section 448.
7. It has next been argued ttiat the intention 01 the petitioner was not to insult, intimidate or annoy wisnan dim but only to take possession of the property in dispute which belonged to the wife of the petitioner, in tins respect, I find that it has been round by the Courts Meows that the property in dispute had been let out to Krisnan cnartd and he was in possession of the same as its lawtui tenant The petitioner or his wife could take possession of the property only through due process of law by obtaining an ejectment order and executing the same and not oy breaking open the lock of the property.
It must have been obvious to the petitioner that bis act in breaking open tne lock of the property in possession 01 Krishan Chand must cause annoyance to him, and as a man Is presumed to intend the natural consequences of bis aci It follows that the petitioner must have intended to cause annoyance to Krishan chand.
Regarding the argument that the intention of the petitioner was only to take possession of the property In dispute and not to cause annoyance, I am of the opium urn the distinction must be kept in view between the intention and objective, or, as observed by Stephen, between intention am motive. Although it may tie correct that the (w leci of the petitioner was to take possession 01 the tense In question, his act shows that his intention was to cause atooyanse to Krishan Chand. in this context, it would be useful to reproduce the observations of Stephen in steptera History of the criminal Law, Vol. II, pp. ill and iu, which if to the following effect-
The maxim (viz. that a man must be held to intend the natural consequences of his act), however, is valuable as conveying a warning against two common fallacies, namely ten confusion between motive and intention, and the tendency to; deny an immediate intention because of the existence, real or supposed, of some ulterior intention. For ins-ttnee, it will often be argued that a prisoner ought to tie acquitted of wounding a policeman with intent to do mm grievous bodily harm, because his intention was not to nun the policeman, but only to escape from his pursuit, mis particular argument was so common that to inflict grievous baddy harm with intent to resist lawful apprehension in new a specifies statutory offence; but, if the ditterenc ovtween motive and intention were, properly understood it would Be seen that when a man stabs a police constable in order to escape, the wish to resist lawful apprefiension is me motive, and stabbing the policeman the intention, and nothing can be more Illogical than to argue that a man am not entertain a given intention because he had a motive for entertaining it. The supposition that the presence of an ulterior intention takes away the primary immediate intention Is a fallacy of the same sort.
It was runner observed:
When, therefore, a man enters upon land in the possession of another, bavins reason to believe that, in an likelihood, such entry would, under the circumstances, cause annoyance to the latter, the entry is not merely an intentional trespass, but may further be held unless there be circumstances to rebut the presumption, to b In eyelift ft tact, a trespass with the specific intern to annoy the possessor. The final Intent (i.e., the motive) may be to assert a right; but its presence cannot wipe out the immediate intention. We should rather hold, in the circumstances above mentioned, that the trespasser entered upon the land m tne possession of another, with intent to annoy the persoit in possession, being moved thereto by his desire to assert his title, in other wards, we should be disposed to say tnat the trespasser committed criminal trespass in order to assert his runt.
Mr. Gupta has referred to 3 case Marotrao uanpai-rao v.. State, reported in AIR 1960 Bom 481. me tacts of the case, are, however, distinguishable because were was a dispute in that case- as to whether the person claiming to be in possession of trig land was a tenant or not and the trial Magistrate found that there was no tease a the land in favour of the person claiming to bs the tenant but only a right to take away grass.
8. For the reasons, stated above, the revision petition tails and is dismissed