1. This is an appeal by the State against a judgment and order of the learned Sessions Judge, Kotah, dated the 19th April, 1960 by which he acquitted the respondents Hari Ballabh, Gulab Chand and Kailash of an offence under Section 448, Indian Penal Code, reversing the judgment and order of the Sub-Divisional Magistrate, Kotah, dated the 22nd February, 1960, by which he had convicted the said respondents under section 448, Indian Penal Code, and sentenced them to one month's rigorous imprisonment and a fine of Rs. 100/- each.
2. The question raised before us is an interesting one relating to possession and it is for that account that the learned Government Advocate presses this appeal, although he has given an undertaking before us that he would not press for the conviction of the respondents in view of all the circumstances of the case, even though our finding be in his favour on the question raised.
3. The material facts in so far as they are relevant for appreciating the question raised before us may be shortly stated as follows:
4. On the 2nd December, 1958 at about 11.45 A.M. the three accused, along with one other person Bhawani Shanker who is now dead and with whom we are not concerned, led a mob of about a thousand persons to the Office of the Deputy Commissioner, Excise and Taxation, Kotah, Dharamvir Dubey, (PW/1) in connection with a certain agitation against the imposition of the sales tax. Seeing that the mob was coming, the Deputy Commissioner asked L.S. Chauhan (PW/2) the Patrolling Superintendent of the Excise and Taxation Department, to stand at the gate and prevent the crowd from entering his office. The case for the prosecution is that in spite of all efforts of Chouhan, the accused-respondents forcibly entered the office pushing Chouhan aside (although the processionists whom they were leading, held back) and went on to the first floor, where hi the verandah outside his office room Dube met them. The former asked the accused to quit his office premises but they did not listen to him and shouted slogaris to wit.
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Dube immediately handed over a report to Kashi Prasad (PW/3)-- a Deputy Superintendent of Police who was present at the spot. As a result thereof the accused were put on their trial in the Court of the Sub-Divisional Magistrate, Kotah, under section's 186 and 448, Penal Code, and were eventually acquitted as stated above by the learned Sessions Judge though they had been convicted of the offence under section 448, Penal Code, by the learned Sub-Divisional Magistrate.
5. We may state at once that the acquittal of the accused under Section 186, Indian Penal Code, by both Courts below, is not being challenged before us and, in our opinion, rightly, because an offence under that section can be taken cognizance of by a court only on a complaint as provided under section 195(1)(a), Criminal Procedure Code and admittedly such a complaint has not been filed in this case by the public servant concerned.
6. It is, however, strenuously contended before us that the learned Sessions Judge had erred in Taw in acquitting the accused under Section 448, Indian Penal Code, as well, and it is this part of the learned Judge's order which brings into play the controversy which is raised before us. That controversy put shortly is: whether it is possible for a member of the public to commit an offence of criminal trespass within the meaning of section 441, Indian Penal Code, by entering into the office of a Government servant it being granted that his intention in so doing was to commit an offence or to intimidate, insuit or annoy the omcer incharge of the office or further by continuing of remain there with the requisite intent although he might have lawfully entered into it. The view of me learned Sessions Judge obviously is that an offence under Section 441, Indian Penal Code, cannot possibly be committed by a member of the public under the circumstances above mentioned, because the Government Omcer, who happens to be incharge of the office, cannot be said to be in possession of it; such an office being open to all members of the public having a right of access thereto. To use the learned Judge's own words, what he says in this connection is as follows:
'In case of a public office it cannot reasonably be said that the public officers who discharge public functions at the office are in exclusive possession of that office. The officers in a public office cannot be deemed as having actual physical possession of the public office as they have no right to eject or exclude another 'person. In the present case, it cannot be disputed that the Sales Tax Office was such a place where all members of the public who had business had a right of access and nobody could have possibly been ejected except perhaps on special grounds.'
In the view of the learned Sessions Judge, the real offence committed by the accused-respondents was of having caused obstruction to a public servant in the discharge of his public duty under Section 186, Penal Code: and so Car as that was concerned, the conviction of the accused was not possible in the present case, because no proper complaint had been filed in that connection. It has been brought to our notice that although the learned Sessions Judge has not cited any case in his judgment from which he found support for the view taken by him, the learned Judge had really in his mind the case reported as Basanta Kumar Gon v. The State, AIR 1956 Cal 118 which was a case more or less on analogous facts, and the learned Judge has really followed the reasoning adopted in that case. As the entire reasoning of the learned Judge is borrowed from the case we have mentioned above, we think it proper to direct our attention to the reasoning in that case and see how far we can accept it as a sound basis for deciding the case before us. Said the learned Judge,
'I am not unmindful of the circumstances upon which reliance has been placed by the State for the purpose of supporting the conviction under Section 448; but I have grave doubts whether it can reasonably be said that the place where a public officer discharged public functions can be said to be in exclusive possession of the place where he discharges those functions....... To my mind Section 441 clearly means and implies that a person has to be in possession of a place in the sense that he is entitled to exclude another if that other person enters trie place......... understand possession mentioned in Section 441, as meaning actual, physical possession which included the right to eject or exclude another person. To all intents and purposes the assistant settlement officer was functioning as public officer at the place and all membersof the public who had business had a right of access and nobody could possibly be ejected except perhaps on special grounds. The special ground here put torward is mat the petitioner made himself nearly a nuisance by saying things or uttering words which he should never have said or uttered. That really clinches the matter, makes the position clear and establishes the tact that the real offence, if any, that was committed was that of causing obstruction to a public lunctionary while discharging his public duties.......It may be unfortunate in the extreme that a contumacious person who did not behave properly before an officer goes unpunished; but then the law has got to be administered by this Court as it finds it and no evasion can be permitted or circumvention of statutory procedure encouraged.'
7. we have given our most careful and anxious consideration to the dicta laid down by me learned Judge out have not, with all respect, been able to agree With all that he has said above. There is no doubt that Section 441, Penal Code, is aimed to protect possession and not ownership. Further, the gravamen of the offence under this section is a criminal intention, namely, the intention to commit an offence or to intimidate, insult or annoy the person in possession. This at once raises the question whether a Government Officer who holds his office in a particular building allotted to him by the Government for the purpose, can or cannot be said to be in possession of it qua a member of the public who may have a right of access to it in connection with official business relating to the department with which the Government Officer concerned is connected. Now before we answer this question, we might point out that the word 'possession' as used in section 441, Penal Code, has obviously been used in its most extensive sense, and no qualification whatever has been attached to it. Thus, it may be that although the owner of a certain property may be in its peaceful and lawful possession or in what we may call 'mediate possession' thereof, in the language of jurisprudence, a servant or a licensee or an agent of that owner may be in actual physical possession thereof or what in jurisprudence is characterised as 'immediate possession'. Thus it would be perfectly possible for an accused person to commit an offence of criminal trespass against a servant or an agent or a licensee of another who may be the owner or mediate possessor, with respect to the property of the latter, if the other conditions mentioned in section 441, Penal Code, are fulfilled. And, in our opinion, it could not be any effective answer to this to say that the servant or the agent or the licensee was only holding on behalf of the owner or the ultimate possessor. Let us take a sample example Suppose you own and reside in a house in Jodhpur and you, accompanied by your entire family, move to a bill station during the summer recess, leaving the house incharge of a care-taker who is your servant. Then someone in your absence enters upon the property and does so with the requisite criminal intent mentioned in section 441, Indian Penal Code. Could such a person not be held guilty of an offence under Section 441. Penal Code, simply on the ground that the possession of the servant was merely in the nature of custody, and it is extremely doubtfulthat he could exclude every other person from entering upon the property, as in this class of persons some ox your relations and friends may well be included? To our mind, there can be no real difficulty to the attractability of Section 441, Penal Code, in a case of this character. The reason is that your servant is in actual physical possession of the property which was trespassed upon. With all respect, it seems to us that the possession of a Government Officer who is incharge of his office building cannot be placed on a worse footing than that of a servant of a private owner. To all intents and purposes such an officer is in actual physical, immediate possession of his office premises, it also seems to us that it is hardly correct to say in a case of this character that the officer's possession is' not of a type that he may exclude poachers therefrom. It is indeed common knowledge that entry into a public office is as a rule always prohibited to others except on public business, and many a time this intention is manifested by putting appropriate sign-boards on them such as, 'No admission except on business'. It is true that this does not amount to an absolute exclusion of others from the office building or the office room. Quite obviously everybody who comes on business has a right or privilege to enter into it. The point that we wish to make, however, is that entry into a public office is not entirely unregulated, and that it is the officer incharge thereof who must always have the right to regulate it and does so in fact. And in this connection we wish to point out with all respect that although possession, broadly speaking, postulates in the possessor a right to exclude others from the property possessed by him, such a right or power of exclusion is not absolute but is relative. This would be at once apparent from the example which we have given above, of the servant who looks after his master's house in his absence. Such a servant would obviously never dream that he has a right to exclude the intimate friends and relations of his master, and yet where somebody takes it into his head to unlawfully enter upon such property (which the servant is looking after) with the requisite intention to commit an offence in relation thereto, we think that the correct view in law can hardly be any other than that he is guilty of an offence under Section 441, Indian Penal Code. Salmond in his well-known book on Jurisprudence observes:
'In the whole range of legal theory there is no conception more difficult than that of possession. The Roman lawyers brought their usual acumen to the analysis of it, and since their day the problem has formed the subject of a voluminous literature, while it still continues to tax the ingenuity of jurists. Nor is the question one of mere curiosity or scientific interest, for its practical importance is not less than its difficulty.'
Then a little further, we have the following observations which considerably fortify us in the conclusion to which we have come above:
'The claim of the possessor must be exclusive. Possession involves an intent to exclude other persons from the uses of the thing possessed. A mere intent or claim of un-exclusive use cannot amount to possession of the material thing itself.........Theexclusion, however, need not be absolute. I may possess my land notwithstanding the fact that' some other person, or even the public at large, possesses a right of way over it. For, subject to this right of way, my animus possidendi is still a claim of exclusive use. 1 intend to exclude ah alien interference except such as is justined by the limited and special right of use vested in others. Furthermore, u a bailee intends to exclude the world at large from control of the chattel, his intent is enough for possession although he is willing to give up the chattel to its owner at any time.'
Applying these observations to the case before us we may well point out that although a member of the public may and does have a right of access to a Government Officer in connection with such official business as he may have therein, such a right is not enough to preclude the omcer incharge of that office from having actual physical possession of his office building or deprive him of a right to exclude all interference with it if necessary. If all that is so, we feel strongly disposed to think that there can be no valid justification for the view that a Government Officer cannot possibly be held to be in possession of his office premises. So far as we consider, his possession is not capable of being interfered with so long as he is incharge of it, and further his possession has all the qualities of a peaceful, lawful user which an outsider can only invade at his own peril, and particularly when forbidden to do so. It only remains for us to point out that if the act of a wrongdoer may happen to fall within the four walls of offences more than one as defined in the Indian Penal Code, then it can be no real answer to say that the offence is only the one which has been provided under a particular section and not the other. So far as we think, in such a case the wrongdoer may well be convicted of both offences, and if for some technical reason a conviction is not possible under one of the offences, then that by itself can hardly be a reason for not convicting or punishing the offender for the other offence. We may in this connection also point out that essentially an offence under Section 186, Penal Code, is aimed to reach an entirely different state of circumstances; it is designed to protect public servants in the discharge of their official duties; while section 441, Penal Code, is conceived and designed on a far more comprehensive pattern and is aimed to protect possession which may vest in anybody whatever, whether he is a public servant or not, provided of course such possession is invaded with the criminal intent provided in that section. Lastly, we may also point out that if the view propounded by the learned Judge, in the case which we are considering, were to be accented, then the employees or agents of all juristic bodies--and it admits of no doubt that the Government is such a body--will stand deprived of the benefit of the protection afforded to them under Section 441, Penal Code, against criminal trespassers in relation to the buildings which are placed in their charge, and we see no cogent reason for adopting such a narrow view having regard to the wide language of section 441, Penal Code.
8. In view of what we have said above, we find it extremely difficult for us, and we Say sowith all respect, to accept the view propounded in Basanta Kumar Gon's case, AIR 1956 Cal 118 and we are detinitely disposed to hold the view that it is perfectly possible in law for a public servant incharge of his official premises to make out a case under section 441, Penal Code, provided the other, ingredients of that section are fulfilled. We hold, accordingly.
8A. The further point that we wish to make is that once we arrive at the conclusion that a Government officer is capable in law of being in possession of his office premises, it may be that a member of the public having business therein cannot be held guilty of the offence of criminal trespass on the footing that his entry into it is unlawful. But where, as in the present case, an offender, having entered a public office is asked to quit the same by the officer concerned, and he refused to do so and he contumaciously remains therein with the requisite intent as prescribed in Section 441, Penal Code, then we do not see how that person can escape the impact of the second part of Section 441, Penal Code. We have no doubt that in such a case, fully granting that the entry of the offender at its inception is lawful, it would definitely become unlawful later and would inevitably bring himself within the clutches of the second part of Section 441, India Penal Code. For, We find it utterly impossible to accept the sweeping proposition that a member of the public has an absolute right to go into or continue to remain in a public office as merrily as he likes and that the officer who is in charge of the office premises has no right to regulate admission or continuance of the members of the public therein. The acceptance of any other view would, in our opinion, reduce things to a state of absurdity and make the transaction of official business virtually impossible ,and, therefore, we see no valid justification in law or commonsense for holding a different view from the one which we have felt persuaded to propound above.
9. In this view of the matter, we must further hold that the acquittal of the accused-respondents in the present case was wrong. But as we have already pointed out, we would not pass any order of conviction or sentence on the respondents having regard to all the circumstances of the case in view of the undertaking which the learned Government Advocate gave us at the inception of the arguments in this case.