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Ram Balak Alias Gauri Shanker Vs. Delhi Administration - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 53 of 1977
Judge
Reported inILR1980Delhi1219
ActsIndian Penal Code (IPC), 1860 - Sections 448; Code of Criminal Procedure (CrPC) , 1898 - Sections 435; Code of Criminal Procedure (CrPC) , 1973 - Sections 484
AppellantRam Balak Alias Gauri Shanker
RespondentDelhi Adminstration
Advocates: D.S. Golani and; K.K. Sharma, Advs
Cases ReferredIn Rash Behari Chatterjee vs. Fagu Shaw and
Excerpt:
indian penal code - section 448--what is criminal trespass--distinction between civil and criminal trespass--criminal procedure code, 1898, sections 435 and 439--criminal procedure code, 1973, sections 484, 397 and 401.; in the instant case, a who had been allowed to function as a pujari and allowed to occupy a small room in the temple premises went out of town after informing the secretary of the temple. on his return, he found the petitioner and his family were in occupation of his room. a filed a criminal case for trespass against the petitioner and succeeded before the metropolitan magistrate and the additional sessions judge. hence this revision. allowing the revision, ; 1. what distinguishes criminal trespass from civil trespass is that in the former the entry should be with intent..........gauri shanker, petitioner, has been found guilty under section 448 of the indian penal code is a criminal trespass or not. (2) facts relevant for the purpose are these. dixit baba had been allowed to function as pujari of bhuteshwar mandir, sant nagar, shahdara, delhi, and was allowed to occupy a small room which formed part of the mandir premises by sri sanatan dharam sabha (registered), shahdara, delhi. in august, 1971, dixit baba went to haridwar and rishikesh after informing jai narain, secretary of the said sabha and asking him to look after the temple during his absence. as he returned in october, 1971, he found the petitioner along with his wife and children in occupation of the room. accordingly, on october 27, 1971, he made a report to in charge police post, shahdara, alleging.....
Judgment:

O.N. Vohra, J.

(1) The short point which arises for determination in this revision under Sections 435 and 439 of the Criminal Procedure Code, 1898, read with Sections 484, 397 and 401 of the Criminal Procedure Code, 1973, against the judgment in appeal dated February 7, 1977 of the Additional Sessions Judge, Shahdara, Delhi, is whether trespass for which Ram Balak alias Gauri Shanker, petitioner, has been found guilty under Section 448 of the Indian Penal Code is a criminal trespass or not.

(2) Facts relevant for the purpose are these. Dixit Baba had been allowed to function as Pujari of Bhuteshwar Mandir, Sant Nagar, Shahdara, Delhi, and was allowed to occupy a small room which formed part of the Mandir premises by Sri Sanatan Dharam Sabha (Registered), Shahdara, Delhi. In August, 1971, Dixit Baba went to Haridwar and Rishikesh after informing Jai Narain, Secretary of the said Sabha and asking him to look after the temple during his absence. As he returned in October, 1971, he found the petitioner along with his wife and children in occupation of the room. Accordingly, on October 27, 1971, he made a report to in charge Police Post, Shahdara, alleging therein that he had gone on pilgrimage after informing the Secretary of the Sabha as usual and during his absence one Bhawani Shanker had approached the Secretary with the request to allow a religious person of repute to stay in the temple and the Secretary acceded to the request and allowed the petitioner to stay in the shed close to the room up to September 30, 1971 but the petitioner occupied the room after removing the lock instead of vacating the shed and did away with his effects which were lying inside. A case under Sections 448 and 380 of the Indian Penal Code was registered on January 3. 1972 and a charge-sheet under Section 448 of the Indian Penal Code was submitted. During the trial the petitioner took up the stand that Dixit Baba left the temple in the year 1968 and he was requested to manage the temple by Bhawani Shanker and others and he agreed and since then he was in occupation of the premises without any objection from the public. The Metropolitan Magistrate found that the charge under Section 448 of the Indian Penal Code had been made out notwithstanding the fact that there was delay of 27 days in the making of the first information report and that no one had stated before him about any intimidation, insult or annoyance at the time of the commission of the offence. The learned Additional Sessions Judge confirmed the finding of fact as regards the occurrence and took the view that annoyance or insult to the complainant was implicit in the act of the petitioner in taking possession of the room.

(3) Criminal trespass is defined as under :

'441.Whoever enters into or upon 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, 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 intent to commit an offence, is said to commit 'criminal trespass.'

(4) Inasmuch as entering into or upon property in the possession of another in the absence of any legal right or consent is an illegal act, what distinguishes criminal trespass from civil trespass is that the entry should be with intent to commit an offence or to intimidate, insult or annoy the person in possession of the property. In Bhagwant Appaji v. Kedari Kashinath & others, 2nd 25 Bom 202, Batty J. made the following observations about 'intent' which occurs in the definition of the word 'fraudulently' in Section 25 of the Indian Penal Code, viz., 'a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise' :

'The word 'intent' by its etymology, seems to have metaphorical allusion to archery, and implies 'aim' and thus connotes of a casual or merely possible result foreseen perhaps as a not improbable incident, but not desired but rather connotes the one subject, for which the effect is made and thus has reference to what has been called the dominant motive, without which the action would not have been taken.'

These observations came to the notice of their Lordships of the Supreme Court in Smt. Mathri and others vs. The State of Punjab, : [1964]5SCR916 , and Das Gupta J., who spoke for the Court, declared that it was one of the best expositions of the meaning of the word 'intent' as used in the Indian Penal Code and held that the meaning given indicated a correct approach adopted in deciding whether the necessary ingredients of the offence of trespass that the entry was 'with intent to commit an offence or to intimidate, insult or annoy' any person in possession of the property has been established. After reviewing a number of authorities which were cited, it was held :

'THEcorrect position in law may, in our opinion, be slated thus In order to establish that the entry on the property was with the intent to annoy, intimate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that 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: that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability or something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry.'

(5) In Rash Behari Chatterjee vs. Fagu Shaw and others, : 1970CriLJ4 , the facts were that litigation started between two parties in 1951 and the appellant therein obtained possession on February 3, 1963. After two weeks from that date, the respondents chose to trespass and started construction. Their Lordships observed that the correct position in law was as held in Mathri's case (supra) and took the view that there could have been no hope on the part of the respondents that they would be able to stay in possession of the land and, thereforee, the dominant intention was to annoy the person in possession and, thereforee, it was a case of criminal trespass.

(6) By applying the principles enunciated so lucidly to the facts of this case, it would be seen that the petitioner did not know about the possession or even existence of Dixit Baba when he was permitted by the Secretary of the Sabha to function in that temple and live in the shed along with his wife and children on September 10,1971. He entered the room in question on October 1, 1971 presumably in anticipation of the winter season. No offence was taken against this fact by those who had earlier allowed Dixit Baba' to function as Pujari and occupy the room and who allowed the petitioner to occupy the temple and the shed. This is the only inference which can be drawn from the fact that complaint was made by Dixit Baba only and that, too, quite after some time after his return to Delhi. The dominant intention of the petitioner would, in the circumstances, be held to be to enter into possession of the room which was a part of the premises of the temple. There was thus no such intention as constitutes the essential ingredient of the offence of criminal trespass.

(7) The learned Additional Sessions Judge was in error in coming to the conclusion that annoyance was implicit in the act of trespass. If that were so, there would be no distinction at all between the criminal trespass and civil trespass. The proposition that every person intends the natural consequences of his act, is often a convenient and helpful rule to ascertain the intention of the persons when doing a particular act. It is wrong, however, to accept this proposition as a binding rule which must prevail on all occasions and in all circumstances. The ultimate question for decision being whether an act was done with a particular intention, all the circumstances including the natural consequences of the action have to be taken into consideration.

(8) For the foregoing reasons, this revision succeeds and the judgments and orders passed by the courts below are set aside and the petitioner is acquitted.


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