M. Anantanarayanan, O.C.J.
1. Section 441, Indian Penal Code, which defines the offence of criminal trespass, lays it down:
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...is said to commit criminal trespass.
There is another part of the definition which relates to a person who lawfully enters upon property, but unlawfully continues there with the same criminal intent, but this part of the definition does not now concern us.
2. The case against the revision petitioners (accused 1 to 3) wag a very simple one that they entered in the land assigned by the Government to Harijan Mari (P.W. 1) with the assistance of the thoti or the cremation assistant, and had the cremation of the body of Chellammal, mother of accused 2 and 3, Conducted on that land, in spite of the protests of P.W. 1. The appellate Court seems to have thought that the intention on the part of the revision petitionfers to cause annoyance to P.W. 1 could be adequately based on the fact spoken to in the evidence, that there was protest when the revision petitioners, with the aid of the thoti, insisted on having the funeral pyre assembled on that land and the body cremated on that land. As the record stands, I think that the Courts below are definitely mistaken. The relevant principles are laid down by their Lordships of the Supreme Court in a passage which occurs in Mathri v. State of Punjab : 5SCR916 at 991, para. 18. . In view of this latest exposition of the relevant legal principles on a review of cases including the Full Bench decision in Vulluppa v. Bhemma Rew : AIR1918Mad36(2) heir Lordships observed:
In order to establish that the entry on the property was with the intent to annoy, intimidate 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.
3. In the present case, the revision petitioners indisputably seem to have genuinely considered that place was some kind of burial or cremation ground, and that they had every right to have the cremation conducted there. As the learned Public Prosecutor has been fair enough to point out, there is actually a resolution of the local Panchayat Board, which might well have confirmed or strengthened such an impression. The fact that that resolution may be incorrect on the merits, is quite irrelevant. Apparently, having considered that they had a right to burn the body of the old lady in that field, the revision petitioners thought that the protests of P.W. 1, or of any one on his behalf, should be properly brushed aside and ignored. They did not commit criminal trespass, though annoyance might have been caused to P.W. 1. They might be liable for civil trespass, and for damages arising from such trespass, if any. But this is a matter upon which there is no need to express any view within the scope of the present proceeding. The revision petitioners are acquitted, as the principles of law have not been correctly applied. Their fines, if paid, will be refunded.