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Kunju Moideen Methararu Vs. Kandan - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 54 of 1958
Reported inAIR1959Ker146; 1959CriLJ588
ActsIndian Penal Code (IPC), 1860 - Sections 40, 441 and 447; Code of Criminal Procedure (CrPC) , 1898 - Sections 4(1)
AppellantKunju Moideen Methararu
Appellant Advocate C.K. Sivasankara Panicker, Adv.
Respondent Advocate M.M. Abdulkadir and; M.K. Abdulla, Advs.
DispositionAppeal allowed
Cases ReferredSirnaswamy v. Selvanayagom
.....get into property still entered with intention to live there - accused entered with intention to annoy complainant - property trespassed upon to be restored to possession of complainant - accused convicted. - - the 5th accused was a cousin of the 1st accused and the 6th accused was their well-wisher. according to him an intention to annoy could clearly be presumed and if so the accused could not escape conviction. section 220), motive is ulterior intention the intention with which an intentional act is done (or more clearly the intention with which an intentional consequence is brought about). intention, when distinguished from motive, relates to the means, motive to the end--glanville williams, criminal law, p. the presumption will hold good if it is not rebutted. ' and because..........great noise and the complainant went away. on this evidence the learned magistrate found that the accused trespassed on the complainant's property but with the object of putting up a house to live in and not with intention requisite for the offence of criminal trespass under section 441, viz., 'to commit an offence or to intimidate, insult or annoy any person in possession'. so ho acquitted the accused of the offence charged against them. hence this appeal. 5. learned counsel for the appellant urges before us that the court below misled itself in the application of the law to the facts as found by it. according to him an intention to annoy could clearly be presumed and if so the accused could not escape conviction. we think this argument is entitled to succeed. 6. in arriving at its.....

Varadaraja Iyengar, J.

1. This appeal is by leave under Section 417(3) of the Criminal Procedure Code, against the judgment of acquittal dated 9-12-1957 and passed by the Sub-Magisirate of Kottayam in C. C. No. 786 of 1953 on his file.

2. The matter arose on a private complaint, filed by the appellant against 6 accused viz., the 6 respondents herein. The complaint was for offences under Sections 447, 506(1), 352 and 114 of the Indian Penal Code, in that the accused jointly trespassed into the complainant's compound known as Pungasserichira and constructed a hut there, in spite of his protests and by intimidating him by threat of physical injury. The first four accused constituted a family, being a father, mother and two sons. The 5th accused was a cousin of the 1st accused and the 6th accused was their well-wisher. The 1st accused was originally a tenant of the complainant in respect of this property and had been evicted therefrom on 8-12-1952 under decree in O. S.383 of 1950 of the Kottayam Munsiff's Court, vide Ext. B delivery kychit.

This incident, according to the appellant, took place in the morning between 8 and 12 A.M. of 9-7-1953. He hurried to the spot at 8 A.M. after hearing of the gathering of the accused in readiness to put up the shed and protested but they moved towards him brandishing deadly weapons and thread tening to kill him. Fearing physical injury he with drew. The accused then went on constructing and finished by 12 noon. The complaint was filed on that very day. Ext. A the scene mahazar prepared about three weeks later, showed that the 1st accused was seen living with his family in the hut on the spot.

3. The defence of the 1st accused was that though delivery did take place under Ext. B, he had not been physically dispossessed altogether. And when the amin had pulled off his original shed and left, he had started constructing another and so had continued in occupation right along. He denied the trespass as alleged and also any intimidation eitheg by himself or any member of his family or others. Accused 2 and 4 set up the same plea while accused 5 and 6 pleaded alibi. The Magistrate found that there was no prima facie case even made out in respect of the offences under Sections 506 and 352, I.P.C. Accordingly he framed charges against the accused for the offence under Sections 447 and 109, I.P.C. only.

4. It appeared from Ext. B delivery kychit that the 1st accused was himself a signatory therein. There was also other evidence before Court as to effective eviction of the 1st accused under Ext. B and his residence with his family in shed put up soon after in the property just north. P.W. 4 who waa the owner of the property farther north also gave evidence that the present hut on the complainant's property was stealthily constructed by accused during the earlier night and was nearing completion on the early morning of 9-7-1953 when it was that the complainant reached the spot and protested.

P.W. 4 further swore that the 1st accused and bis partisans only made great noise and the complainant went away. On this evidence the learned Magistrate found that the accused trespassed on the complainant's property but with the object of putting up a house to live in and not with intention requisite for the offence of criminal trespass under Section 441, viz., 'to commit an offence or to intimidate, insult or annoy any person in possession'. So ho acquitted the accused of the offence charged against them. Hence this appeal.

5. Learned counsel for the appellant urges before us that the Court below misled itself in the application of the law to the facts as found by it. According to him an intention to annoy could clearly be presumed and if so the accused could not escape conviction. We think this argument is entitled to succeed.

6. In arriving at its conclusion, the Court below thought that the prosecution had not even alleged that the accused trespassed upon the property with the intention to intimidate, insult or annoy, on the other hand the complainant himself had admitted that the object of the trespass was to put up a house to live in. Again, according to the Court below, the utmost that could be conceded in favour of the prosecution was that the act must have caused annoyance to the complainant and that the accused ought to have been aware of it and therefore an intention to annoy should be presumed. But this, the Court said was not enough. For intention must be actual and primary and not merely constructive and secondary. The Court below also depended on what it styled another aspect of the case, viz., the plea of the 1st accused that there was no one to offer him asylum, which in its opinion, pre-divided it altogether from entering a verdict of guilty in the case.

7. The criticism of the Court below about the insufficiency of allegations in the complaint may be easily disposed of. For the complaint did go in detail as to the previous delivery in execution, the incidents of trespass and the overawing by the accused and the party of leftists aikyamunnani, behind them. There was anyhow the characterisation ot the acts of the accused as wrongful and a prayer for prosecuteing them for the offences of criminal trespass under Section 447. It is nowhere insisted that the complainant must categorise the elements of the offence sought to be charged against the accused. In our judgment, the complaint, here did not suffer from lack ot particulars.

And as to the absence of mens rea arising from the complainant's own admission regarding the accused's object in committing the trespass, viz. to put up building, we have only to remark that the learned Magistrate was rather confusing motive with intention. For, while intention, is a state of mind consisting of desire that certain consequences shall follow from the party's physical act or omission, Mark on Elements or Law, (,4th Edn. Section 220), motive is ulterior intention the intention with which an intentional act is done (or more clearly the intention with which an intentional consequence is brought about). Intention, when distinguished from motive, relates to the means, motive to the end--Glanville Williams, Criminal Law, p. 41, Section 15.

8. The question of actual and primary intent apart from constructive and secondary intent referred to by the learned Magistrate, id a more difficult question but easily answered on the facts of this case. For cases are not wanting where in circumstances more or less similar, convictions for criminal trespass have been entered on basis of presumed intention to annoy, e.g. Keshar Singh v. Rex AIR 1950 All 157; Narayana v. Madar Khan, AIR 1944 Mad 473. In the first of these cases, there was no proof that the intention of the accused in committing the trespass upon the field concerned was to commit an offence or intimidate or annoy and the question was whether such intention could be interred from the actual or probable result. Desai, J., observed:

'Unless a man committing criminal trespass gave expression of his intention, it would be impossible to produce direct evidence of the intention. The intention has in most cases to be inferred from the circumstances. Where the probable consequences of the act alleged to be criminal trespass was to cause annoyance to the person in possession it will be presumed that it was committed with the intention. The presumption will hold good if it is not rebutted.'

And because the presumption was not rebutted in that case it was held to be good. And the learned Judge distinguished the case where the accused in good faith but erroneously thought that they had a right to enter upon the field, and

'in such case even if the acts caused annoyance it could not necessarily be presumed that their intention was to annoy that is to say, the presumption would be rebutted on their showing their bona fides'.

In the latter case AIR 1944 Mad 473, the accused formed themselves into an association with the object of taking possession of the lands in possession of the zamindar in a high-handed manner. Kuppuswamy Iyer, J., held that the trespass must have been with intent to annoy and insult the zamindar and the mere fact that he was not present would not indicate that there could have been no intent to annoy or insult. The principle applied in these cased is that it would be almost impossible to produce direct evidence of the requisite intention and it has in some cases to be inferred from the circumstances. So, while the fact that a trespass causes or is likely to cause annoyance to a person in possession may by itself be insufficient to justify a conviction, the presumption of the necessary intention may be drawn where a person who has absolutely no interest in land in possession of others forcibly takes possession in spite of the protests of the owner.

9. The difficulty in these cases has really arisen from the various interpretations possible, of the phrase 'with intent to' or its equivalents. As pointed out in Velayudhan v. Aiyappa (Rama Menon, C. J., and Chatfield, J.) in 34 Trav. LR 243 after referring to Salmond's Jurisprudence and Ex parte Hill, (1883) 23 Ch D 695, per Bowen, L. J., the phrase may mean any one of at least four different things : (i) that the intent referred to must be the sole or exclusive intent, (ii) that it is sufficient if it is one of several concurrent intents; (iii) that it must be the chief or dominant intent, any other being subordinate or incidental; (iv) that it must be a determining intent, that is to say, an intent in the absence of which the act would not have been done, the remaining purposes being insufficient motives by themselves. The learned Judges then pointed out the distinction, in the words contained in Stephen's History of the Criminal Law, Vol. II, pp. 111 and 112 as follows :

'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 the 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 instance, it will often be argued that a prisoner ought to be acquitted of wounding a policeman with intent to do him grievous bodily harm, because his intention was not to hurt the policeman, but only to escape from his pursuit. This particular argument was so common that to inflict grievous bodily harm with intent to resist lawful apprehension is now a specific statutory offence; but, if the difference between 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 apprehension ig the motive, and stabbing the policeman the intention, and nothing can be more illogical than to argue that a man did 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.'

And they went on to hold :

'When, therefore a man enters upon land in the possession of another, having reason to believe that, in all 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 be in point of fact, a trespass, with the specific intent 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 in the possession of another, with intent to annoy the person in possession, being moved thereto by his desire to assert his title. In other words, we should be disposed to say that the trespasser committed criminal trespass in order to assert his right.'

10. Reference may also be made in this connection to the decision in Kumaran v. Sirkar, 18 Trav. LJ 555 (Chatfield, C. J., Joseph Thaliath, and Parameswaran Pillai, JJ.). There the question was referred :

'Whether knowledge that a trespass committed with some other object was likely to cause insult or annoyance to the occupier, can amount to the intention contemplated in Section 442 of the Travancore Penal Code, so as to constitute the offence of Criminal Trespass as defined in that Section.'

Chatfield, C. J., after full discussion, observed in the leading judgment that he would answer the question in the words used by Ayling, J. in Vullappa v. Bheema Row, ILR 41 Mad 156: (AIR 1918 Mad 136. (2) (FB)) :

'A mere knowledge that the trespass is likely to cause insult or annoyance to the owner of the property does not amount to an intent to insult or annoy within the meaning of Section 441, Indian Penal Code; but where the trespasser knows that his trespass is practically certain in the natural course of events to cause insult or annoyance to the owner of the property, it is open to the Court to infer an in, tent to insult or annoy. It is a question of fact whether this presumption of intent is displaced by proof of any independent object of the trespass,'

11. This presumption of intention, it is now generally agreed in England, does not represent a fixed principle of law. And as observed by Denning, L. J. in Hosegood v. Hosegood, (1950) WN 218.

'There is no 'must' about it; it is only 'may'. The presumption of intention is not a proposition of law but a proposition of ordinary good sense.'

12. It is interesting here to notice the recent Privy Council case from Ceylon, Sirnaswamy v. Selvanayagom, (1951) AC S3. The Ceylon Penal Code like its Indian counterpart, made it a criminal trespass to enter or remain in another's property with intent to annoy him. The accused refused to vacate rooms belonging to the Government which he and his forebears had occupied for seventy years and he was therefore convicted of trespass. The Magistrate found that his intention was to cause annoyance to the Government Superintendent, since that would be the natural consequence of his action. In allowing an appeal, the Privy Council said :

'Even if the appellant did anticipate that (the Superintendent) Would be annoyed, it is perfectly clear from his evidence that his dominant intention was to remain on the estate where he and his family had lived for generations and not to find himself homeless. Entry, upon land, made under a bona fide claim of right, however ill-founded in law that claim, may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant.'

13. Here the accused's claim of right turned the scale. If he had known as in this case, that he had no legal right, he might, it seems, have been convicted. For his knowledge of the certainty of causing annoyance might then have been regarded as equivalent to intention. See Glanyille Williams, P. 39.

14. In this case according to the finding of the learned Magistrate the accused were perfectly award that they had no right to get into the property. They entered by stealth and before they secured themselves by completing the construction of the shed, the complainant had appeared and protested but he was forced to retire. Annoyance of the complainant was certain in the circumstances and there could be nothing wrong then to say, that the accused had intended to annoy.

15. Coming now to the alternative aspect of necessity of the accused relied on by the learned Magistrate, as ground of acquittal, we are constrained to say that he has in doing so, betrayed a lack of balance which perhaps throws a doubt on his fitness for the office. The learned Magistrate is willing to assume for purpose of argument that the accused was defying with impunity the decree of a competent Court in execution of which he was ejected. Posing then the question for himself, should he be punished and discouraged, he answers :

'A conviction in a criminal Court not only carries with it a stigma but also an admonition that the accused should have behaved better. How could this family before me have behaved better. If they had entered ,on any other plot of land then also it is trespass of no less magnitude, and it is only quite natural that they stepped back into the place to which they were so intimately attached by dint at least of association for about 40 years,'

In our opinion, the admission of fanciful theory like this will clearly deflect the course of justice and the community will lose the protection intended for it by the law as to crime. And as Hale observed in a celebrated passage :

'Men's properties would be under a strange insecurity being laid open to other men's necessities-, whereof no man can possibly judge, but the party himself.'

The Commissioners who framed the Indian Penal Code, it may not be forgotten in this connection, definitely rejected the defence of economic necessity.

16. We therefore reverse the judgment of acquittal passed by the Court below and convict theaccused for the offences under Sections 441 and 109, I.P.C.and sentence them each to a fine of Rs. 75 withsimple imprisonment for one month in case of default. We direct further that the property trespassedupon will be restored to the possession of the complainant, under Section 522 of the Criminal ProcedureCode.

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