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Jawanmal Vs. Mt. Bhanwari and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Appeal No. 149 of 1957
Judge
Reported inAIR1958Raj214; 1958CriLJ1099
ActsIndian Penal Code (IPC), 1860 - Sections 441 and 448
AppellantJawanmal
RespondentMt. Bhanwari and ors.
Appellant Advocate Rajnarain, Adv.
Respondent Advocate Bhimraj, Adv.
DispositionAppeal dismissed
Cases ReferredCeylon Sinnasamy Selvanayagam v. The King
Excerpt:
.....as the dominant intent would have to be considered by the court on the facts of each case and if the persons are absolutely unarmed, the court may well come to the conclusion in a particular case that their intention was not to commit any offence or to intimidate, insult or annoy the person in possession, but merely to effect the entry under a bona fide claim of right. supposing a person claiming a bona fideright goes to effect an entry unarmed accompanied by three well-known 'goondas',in such a case, the court may be able to presume that as the person took some 'goondas' with him to support him, his intention primarily was to intimidate the person in possession. but if the same person goes unarmed accompanied by three very respectable persons, the court may very well presume that..........a bona fide claim of right. we may illustrate this further. supposing a person claiming a bona fideright goes to effect an entry unarmed accompanied by three well-known 'goondas', in such a case, the court may be able to presume that as the person took some 'goondas' with him to support him, his intention primarily was to intimidate the person in possession. but if the same person goes unarmed accompanied by three very respectable persons, the court may very well presume that the dominant intention was not to insult, intimidate or annoy the person in possession, but merely to effect an entry under the bona fide claim. in short, therefore, in each case the court will have to consider what was the dominant intention and in coming to that conclusion, it will have to take the various.....
Judgment:

K.N. Wanchoo, C.J.

1. This is an appeal by Jawanmal against the order of the Sessions Judge of Jodhpur acquitting Mt. Bhanwari and three others of an offence under Section 448 of the Indian Penal Code.

2. We must say at the outset that the judgment of the learned Sessions Judge suffers from one serious defect. It does not show what facts were found by him as to the incident which took place on 9th of September, 1953. He practically started applying the law without finding the facts of the incident resulting in this case. We have, therefore, to find the facts for ourselves before we consider the question of law undoubtedly involved in this case.

3. The case started on the complaint of Jawanmal appellant which was made on 10th of September, 1953. There were five accused in the complaint and they were accused of offences under Sections 147, 323 and 448 of the Indian Penal Code. The case of Jawanmal was that he was owner of certain house in Mathania which he had purchased from his father-in-law Magraj in January, 1953. Since then he had been in possession of it either himself or through tenants.

On 9th of September when Jawanmal was at the house, five persons, namely, the four accused Mt. Bhanwari, Champalal, Hukmi-chand, Bhika and one more person Mt. Kishni came to the house with the common object of assaulting him. They wanted to enter the house, but he objected. On this he was beaten with fists and slaps. Thereafter these people entered the house without his permission and took possession of it illegally arid threw out his goods.

4. This complaint did not disclose the full facts, for the impression created by the complaint on one's mind is as if the five persons, who are alleged to have made the attack, had nothing whatsoever to do with the house and suddenly descended upon it that afternoon. The evidence, however, established certain facts which are now undisputed.

These undisputed facts are that the house in question belonged to Shivram, father of Magraj. Shivram had three sons, namely, Basti-ram, Amolakh and Magraj. Bastiram and Amolakh died during the lifetime of Shivram, while Magraj survived him. Mt. Bhanwar accused is the widow of Amolakh. The house was in the possession of Magraj who was the sole surviving son of Shivram.

Magraj had no son, but had a daughter married to Jawanmal complainant. Magraj sold this house to Jawanmal in January, 1953 and Jawanmal claims to be in possession of it by virture of that sale. It is also proved that Magraj died only about 18 days before the present incident took place on 9th of September.

5. Then we come to the facts about which there is dispute. The case of Jawanmal is this. He is in possession of this house and was in Mathania on 9th of September, 1953 because of the death of his father-in-law. On that day the four accused and Mt. Kishni came with the intention of taking possession of the house by force and when he objected, beat him and took possession of a part of the house after throwing out his things.

6. The case of Mt. Bhanwari, on the other hand, is that as a widow of Amolakh, she had been living in a part of the house. It may be mentioned, that it consists of two tenements or rooms, one of which is bigger than the other. Mt. Bhanwari's case is that the bigger tenement came to her husband's share and she had been living in it always. The other three accused said that they had not gone with Mt. Bhanwari at all and had been implicated on account of enmity.

7. The Magistrate discharged the fifth accused namely Mt. Kishni. Thus there could be no case under Section 147, of the Indian Penal Code and no charge was framed under that section', nor did the Magistrate frame any charge against any of the remaining four accused under Section 323 of the Indian Penal Code. From this it may be presumed that these four accused did not cause hurt voluntarily to Jawanmal.

The only charge framed by the Magistrate was under Section 448 of the Indian PenalCode. As to that the Magistrate held that Mt. Bhanwari went that day to Mathania to take possession of the house and did actually take) possession of it in spite of the opposition of Jawanmal and that her story that she was in possession of the bigger tenement by virtue of a partition between her husband and his relations was not correct,

In the charge, the intent was not specified, namely, whether the entry was with in-tent fo insult, intimidate or annoy Jawanmal or with intent to commit an offence. In the judgment the Magistrate says that entry of this kind necessarily involves annoyance and in this case annoyance was accompanied by force which renders the entry criminal trespass.

It was pressed before the Magistrate that Mt. Bhanwari had a bona fide right of residence in the house and made the entry under that bona fide claim and, therefore, she and those who accompanied her could not be guilty under Section 448 of the Indian Penal Code. The Magistrate, however, seems to have held that the entry was with intent to annoy and intimidate Jawanmal and that Mt. Bhanwari was accompanied by the other three accused when she made the entry.

8. It does seem to us that Mt. Bhanwariwas not in actual possession of any portion of the house immediately before the incident took place and that the house was in the possession of Jawanmal. But there is no doubt that Mt. Bhanwari as the widow of Amolakhchand, son of Shivram, to whom the house originally belonged, had prima facie right of residence in the house for her lifetime and the sale made by her brother-in-law Magraj in favour of Jawanmal could not prima facie defeat that right of hers.

In the circumstances, the question arises whether her entry into the house along with the other three accused under this bona fide claim of right can amount to criminal house trespass punishable under Section 448 of the Indian Penal Code. We may in this connection set out Section 441 of the Indian Penal Code which sets out the ingredients of an offence of criminal trespass :

'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 withintent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,

is said to commit 'criminal trespass'.'

9. We are in this case concerned with the first part of Section 441 & the intent necessary to constitute an entry upon property in the possession of another criminal trespass. Now the section lays down that the entry should be with intent (1) to commit an offence or (2) to intimidate, insult or annoy any person in possession. This is a case where the intent is said to be to annoy or intimidate Jawanmal who was in possession of the property.

Now there are many cases to be found in the law reports where it has been held that where the entry has been made under a bona fide claim of right, the intent behind the entry in such a case is not necessarily to intimidate, insult or annoy any person in possession. Wedo not think it necessary to refer to all thosecases.

We may, however, refer to a recent decision of their Lordships of the Privy Council in a case coming before them from Ceylon Sinnasamy Selvanayagam v. The King, 1951 AC 83 (A). In that case they were dealing with Section 427) of the Ceylon Penal Code, where also the intent necessary to make an entry upon property criminal trespass is exactly in the same words as in Section 441 of the Indian Penal Code. Dealing with this aspect of the matter, their Lordships observed as follows at page 87 :

'Entry upon land made under a bona fide claim of right, however ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent, or, at any rate, constituted no more than a subsidiary intent.'

10. If we may say so with the utmost respect, we have no hesitation in adopting this interpretation of the intent necessary to constitute an offence under Section 441 of the Indian Penal Code.

11. Let us analyse this interpretation a little more closely. Where entry is claimed under a bona fide claim of right, the first thing which the Court has to see is whether the claim is bona fide; for, if the claim is not bona fide and is a mere cloak to cover the real intent, it would be of no avail.

In such a case, therefore, the Court must first direct its attention to the question whether the claim is bona fide. If it comes to the conclusion that the claim is not bona fide, it may then hold that the entry was with the intent mentioned in Section 441 for when there is no bona fide claim, the entry would certainly be with intent to annoy the person in possession, if nothing else.

But if the Court comes to the conclusion that there is a bona fide claim of right, it will then have to consider the question of intent behind the entry with care. It will have to find out whether the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the person in possession. Further, the knowledge that annoyance might be caused would not be sufficient. The person entering must have the dominant intent. to cause annoyance when making the entry.

12. Now the person who has a bona fide claim of right and has entered into property in the possession of another may do so alone or may be accompanied by others to support him. He and his companions may be armed or they may be unarmed. These are all circumstances which will have to be taken into account in coming to the conclusion whether a person who is making an entry under a bona fide claim of right has the intent necessary under Section 441 of the Indian Penal Code to turn the entry into criminal trespass.

13. Let us analyse the various types of cases which may arise. The person may go alone and unarmed in order to make the entry under his bona fide claim of right. In such a case, there can be little doubt that his dominant intention would not be to insult, intimidate or annoy the person in possession or to commit any offence and he would not be guilty under Section 448 of the Indian Penal Code. Of course, if he commits any offence while making the entry, he may be guilty of that particular offence. For example, though he had no intent to commit an offence and no intent to insult, intimidate or annoy the person in possession, he may actually beat up the man in possession while making the entry. In such a case, he may be guilty under Section 323 of the Indian Penal Code, but he would not be guilty under Section 448 of the Indian Penal Code, for he did not effect the entry with intent to commit any offence, but merely under his bona fide claim of right.

14. Now take another case. This personwho has a bona fide claim of right goes armed, let us say, with a pistol in order to effect the entry. In such a case, the Court may very well come to the conclusion that though he had a bona fide claim of right, the dominant intention in his mind in making the entry was to commit the offence of criminal intimidation defined in Section 503 of the Indian Penal Code or even to intimidate the person in possession, in case he is found there.

Thus the Court, even where the person who sets up a bona fide claim of right goes alone to make the entry, will have to take into account the circumstances. If he goes unarmed, the dominant intention would not be to commit an offence or to insult, intimidate or annoy the person in possession; but if he goes armed, the Court may very well come to the conclusion that the dominant intention was to commit the offence of criminal intimidation or at least to intimidate the person in possession.

15. Now let us turn to another type of case where the person making a bona fide claim of right makes the entry accompanied by others. In such a case, the question arises whether merely because the person is accompanied by a few others, that is sufficient to give rise to the inference that the dominant intention was to intimidate the person in possession and not merely to effect an entry under the right claimed by him.

As to this, we must make a difference between a case where the person is accompanied by four or more other persons, making a total of five or more in all and where he is accompanied by less than four others and the total number of persons is four or less. Where the total number of persons is five or more including the person claiming under the bona fide right, they would, in our opinion, form an unlawful assembly within the meaning of the fourth clause of Section 141 of the Indian Penal Code.

Under that section an assembly of five or more persons will be an 'unlawful assembly' ifthe common object of the persons composing the assembly is by means of criminal force, or show of criminal force, to any person to take or obtain possession of any property or to enforce any right or supposed right.

In such a case, the court may very well come to the conclusion where a large number of people are taken that the dominant intention of the person claiming under a bona fide right is to enforce that right by at least a show of criminal force. But where the total number of persons is four or less, they would not be an unlawful assembly and the court will have to consider in each case whether the intention was to intimidate etc. the person in possession.

If these persons, whose number is four or less including the person claiming the right go absolutely unarmed, the court may on the facts of a particular case come to the conclusion that their dominant intention was not to intimidate etc. the person in possession, but merely to make an entry under the bona fide claim. But if these persons go armed, the court may very well come to the conclusion that the dominant intention was to intimidate the person in possession, if nothing else.

But we feel that merely because a person who claims under a bona fide right makes an entry accompanied by upto three other persons, that fact in itself should not necessarily lead to the inference that the intention was either to commit some offence like criminal intimidation or to insult, intimidate or annoy any person in possession.

Whether there was such intention as the dominant intent would have to be considered by the court on the facts of each case and if the persons are absolutely unarmed, the court may well come to the conclusion in a particular case that their intention was not to commit any offence or to intimidate, insult or annoy the person in possession, but merely to effect the entry under a bona fide claim of right. We may illustrate this further.

Supposing a person claiming a bona fideright goes to effect an entry unarmed accompanied by three well-known 'goondas', in such a case, the court may be able to presume that as the person took some 'goondas' with him to support him, his intention primarily was to intimidate the person in possession. But if the same person goes unarmed accompanied by three very respectable persons, the court may very well presume that the dominant intention was not to insult, intimidate or annoy the person in possession, but merely to effect an entry under the bona fide claim.

In short, therefore, in each case the court will have to consider what was the dominant intention and in coming to that conclusion, it will have to take the various circumstances which we have pointed out above. In some of the instances given by us above, it will be easy to come to the conclusion that the dominant intention was to commit an offence or toinsult, intimidate or annoy the person, in possession.

In other instances, the court will have to consider the facts of each case and then decide whether the dominant intention was merely to make an entry under the bona fide right or to insult, intimidate or annoy the person in possession. An offence will be committed if the dominant intention found by the court is to insult, intimidate or annoy the person in possession or to commit an offence.

But if the dominant intention was merely to make an entry peacefully no offence of criminal trespass would be made out. Of course, if any offence is actually committed after the entry is made, or during its course though it was not part of the intent, the person committing that offence would be guilty of it. But that would not result in conviction for criminal trespass, unless the court is also able to find that the intention was from the beginning to commit that offence.

16. Let us now apply these principles to the facts of this case. These facts are that Mt. Bhanwari had prima facie a right of residence in this house. She went there accompanied by three others to make an entry under her claim of right. They were all unarmed and the person, who was claiming the right, is a woman.

The Magistrate did not frame charge under Section 323 and, therefore, we must rule out of consideration that any 'marpeet' took place after these persons effected the entry or during its course. All that can be said in the circumstances is that a peaceful entry was effected by Mt. Bhanwari along with three of her friends. Can it be said that in the circumstances the dominant intention was to insult, intimidate or annoy Jawanmal?

It seems to us that in the circumstances of this case, the dominant intention must have been to make an entry under the bona fide claim of right. The fact that Jawanmal might get annoyed because of the entry would not make the entry with intent to annoy. We are, therefore, of opinion that Mt. Bhanwari had a bona fide claim of right in this case and as the entry was apparently peaceful and the dominant intention was to make the entry under the bona fide claim and not to insult, intimidate or annoy Jawanmal, the acquittal is correct.

17. There is no force in this appeal and, it is hereby dismissed.


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