1. This criminal revision case is filed against the conviction and sentence of the learned Additional First Class Magistrate of Kumbakonam in C. C. No. 39 of 1950.
2. The short facts are: The criminal revision petitioners before us were tried for offences under Sections 448, 426 and 323, I. P. C., on the foot of the following facts set out in para. 2 of the judgment of the lower court: P. W. 7 who is a graduate has opened an Ashramam by name Vivekananda Ashramam at Thillayadi for the benefit of the poor children. A boarding hostel is attached to the Ashramam and the boarders who were 10 in number including P. Ws. 2 and 3 and the son of P. W. 1 by name Dharmalingam were also given education by sending them to the schools at Thillayadi or Tirukadayur lying adjacent. The parents of the boarders used to pay small sums towards the boarding and education of their children and P. W. 7 also used to make collections from the public towards the maintenance of the Ashramam. P. W. 1 is a native of Muthupet and he is a mason by profession. P. W. 1 had work in the temple at Thiruvidakali lying adjacent to Thillayadi and he took his food at the Ashramam and stayed for the night at the Ashramam from the second week of January 1950. Accused 1 is the father of accused 2 and 3 and they all reside in Thillayadi.
On the night of 18-1-1950 at about 8 p. m. P. W. 7 was absent from the village and P. Ws. 2 and 3 and other boarders were studying in the Ashramam building while P. W. 1 was having his food in the kitchen. At that time the three accused went in front of the bamboo locked gate to the compound of the Ashramam building and asked that the gate be opened. Before P. W. 2 went to the gate with the key, the gate was broken and accused 1 to 3 entered into the building. Accused 1 abusing P. W. 7 and threatening to injure P. W. 7 asked where P. W. 7 was and tore a tiger skin kept on an easy chair crosswise rendering it useless. On hearing the hubub in the hall P. W. 1 who was having his food in the kitchen went there, told accused 1 that P. W. 7 was away from the village and questioned their action. Accused 3 asking P. W. 1 what right he had to interfere, hit P. W. 1 on his face with the back end of a hand electric torch light. Accused 2 also hit P. W. 1 on his face with a knuckle duster. Accused 1 also beat P. W. 1 with hand on P. W. 1's back, P. W. 1 was dragged to the verandah and there also he was beaten by all the accused. P. W. 1 became unconscious when all the accused ran away.
The next day P. W. 1 went to the hospital at Porayar where P. W. 1 was treated as an in-patient for three days by P. W. 9, the Medical Officer in charge. On receipt of the accident report sent by P. W. 9, the Porayar Station Head Constable recorded a complaint from P. W. 1 at the hospital. After registering the complaint as crime No. 10 of 1950 and after seizing the torn tiger skin and broken lock of the gate and after completing the investigation, P. W. 10, the Sub-Inspector submitted a charge-sheet to court.
3. There was a composition between P. W. t and the accused in the following terms:
'Myself and the accused have compromised the matter. As I have compromised the above case by arbitration and as I feel that it is not just to proceed further with this case, I pray that the Court may be pleased to accept my compromise memo and release the accused.'
It is to be noted that P. W. 7 has not joined in this compromise.
4. The entering into this compromise was subsequently disputed even by P. W. 1 and the learned Magistrate, who held an enquiry into the same as he was perfectly competent to do, came to the conclusion that P. W. 1 had entered into the compromise willingly and that he was trying to falsely resile from it, recorded the compromise and acquitted the accused of the offence of voluntarily causing hurt to P. W. 1 by accused 2 and 3 under Section 323. I. P. C. The learned Magistrate refused to hold, as he was urged to do so by the accused, that this compromise also covered the offences under Sections 448 and 426, I. P. C., against all these criminal revision petitioners and examined the evidence of both the prosecution and the defence against them and came to the conclusion that they were guilty as charged and sentenced them to petty fines.
5. The point taken in this revision petition is that on the evidence on record the offences against these persons have not been made out; and secondly that on the composition put into court the accused should have been acquitted under all heads.
6. In so far as the first point is concerned the lower court on abundant and satisfactory evidence has come to the conclusion in a well-reasoned judgment that the accused Persons were guilty of the offences for which they have been convicted. Nothing was placed before me to come to a different conclusion by reason of any misappreciation of the evidence. Therefore, on the finding of fact there is no reason to interfere.
7. Then turning to the point of law, the persons by whom the offences under Sections 426 and 448, I. P. C., can be compounded are set out in column 2 of table 1 attached to Section 345, Cr. P. C. The offence under Section 426, I. P. C., can be compounded by the person to whom the loss or damage was caused. The offence under Section 448, I. P. C., can be compounded by the person in possession of the property trespassed upon.
8. The evidence in this case is that P. W. 7 is the owner of the tiger skin and the person to whom the loss or damage was caused, and P. W. 1 was only a caretaker for the time being. Accused 1 cannot compound this offence with P. W. 1.
9. In regard to the offence under Section 448, I. P. C., there is a long line of decisions which clearly show that the care-taker P. W. 1 cannot be considered to be the person in possession of the property trespassed upon. The charge of criminal trespass can be compounded by the person who is in actual possession of the property trespassed upon; and he (P. W. 7) and not the juridical possessor (P. W. 1) the person who can bring the complaint in respect of the offence. Otherwise we might have a juridical possessor, e.g., a trustee, filing a complaint for criminal trespass and the actual possessor compounding the offence, a result which could never have been contemplated by the Legislature; see -- 'Tok Gyi v. Emperor', AIR 1917 Low Bur 155 (A). The care-taker for the time being is neither juridical nor actual possessor. But he is only in constructive possession on behalf of either the one or the other. To hold otherwise would lead to a strange result namely a servant taking money from the accused and compounding the offence whereas the really injured party namely the master and actual possessor, would be left without any lawful remedy against the aggressor.
That is why in two decisions of our High Court this position has been clarified. In -- 'Chinna Venkatesu v. Kesamma', AIR 1931 Mad 231 (B) Krishnan Pandalai J. held that the offence of criminal trespass under Section 447, I.P.C. may be committed even when the person in possession of the property is absent, provided the entering into or upon the property is done with intent to do any of the acts mentioned in this section. Thus, where a person entered upon a field that had been leased during the absence of the lessee and ploughed it and only the lesson came to the spot on hearing it to prevent the commission of such act, held that that was not enough to exonerate that person from intention to annoy the lessee and that such a person could properly be convicted under Section 447, I. P. C.
In -- 'Narayana v. Madarkhan' : AIR1944Mad473 this decision was relied upon and it was held by Kuppuswami Aiyar J. that where the object of the ryots' association was to take possession of the lands, in the possession of the Zamindar in a high-handed manner, a trespass by the members of the association for that purpose on the zamindar's lands must be deemed to have been with the 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. A man need not necessarily be insulted only by acts done in his presence. In this case on the facts the trespass was intended only to annoy and insult P. W. 7 and not P. W. 1 who merely happened to be present as caretaker for the nonce in the absence of P. W. 7.
10. Therefore the learned Additional First Class Magistrate has rightly refused to accept the compromise in regard to the offences under Sections 426 and 448, I. P. C., and there are no grounds to interfere.
11. This petition is dismissed.