1. The first and second revision petitioners have been convicted of an offence under Section 448, Indian Penal Code by the learned Fourth Presidency Magistrate, Madras and sentenced to pay a fine of Rs. 25/-, in default to undergo R. I. for two weeks and the third revision petitioner has been convicted of an offence under Section 426, Indian Penal Code and sentenced to pay a fine of Rs. 25/- in default to undergo R. I. for two weeks.
2. The facts are as follows : The Respondent Chandra Rao S Kathavukar filed H. R. C. No. 327/72 before the Rent Controller and obtained an ex parte order of eviction against the first revision petitioner and one Elumalai and in execution of that order, in E, P. No. 558 of 1972, the bailiff P. W. 2 went to No. 1, Rattan Bazar, Madras along with the Complainant's agent P. W. 4 at about 2 p. m. on 27-6-1972 to execute the delivery warrant. In that premises P. W. 1 the complainant is keeping a tailoring shop in the upstairs while in the downstairs the first revision petitioner is having a rope shop and one Elumalai is also keeping a rope shop and a betel-leaf shop. According to P. W. 1 the Complainant and P. W. 2 the bailiff and P. W. 4 the agent of P. W. 1, P. W. 2 the bailiff explained to the first revision petitioner who was present in his shop the contents of the delivery warrant, whereupon the first revision petitioner took out the articles which were kept in the shop and vacated the premises and P. W. 2 delivered possession of the premises to P. W. 4 and the bailiff wrote on the door of the shop that possession had been delivered and he closed the door of the shop. Since P. W. 4 did not have a lock to lock up the shop, the shop was not locked. P. W. 2 then went to Elumalai's shop in order to deliver possession of the same, but owing to the objection raised on behalf of Elumalai that portion of the shop could not be delivered possession of P. W. 3 who was a customer of P. W. 1 and who had come to P. W. 1's tailoring shop, when he went to P. W. 1's shop to give some clothes for stitching, saw the first revision petitioner taking out all the articles which he had kept in that shop and P. W. 2 closing the door of the shop and writing on the door of the shop that possession had been delivered. According to P. Ws. 1 to 3 and 4, the first revision petitioner and the second revision petitioner then attempted to open the doors of the shop in order to get in. When P. W. 1 obstructed them they threatened to stab him and entered into the shop and they replaced in the shop the articles which the first revision petitioner had previously taken out of the shop. P. W. 3 while coming down from P. W. 1's tailoring shop saw this. P. W. 1 then went to give a report at the police station. The third revision petitioner then kicked the wooden partition that was between the portion In which the first revision petitioner was having his shop and Elumalai's portion and broke that partition.
3. The revision petitioners examined two witnesses on their behalves of whom D. W. 1 testified that when the bailiff P. W. 2 came to the first revision petitioner's shop only the second revision petitioner was there, D. W. 2 is the first revision petitioner himself and he also testified that on the day the bailiff is said to have come to his shop he was not there, for he had asked the second revision petitioner to look after the shop and actually the bailiff never came to the shop and never removed the samans from there. He further testified that he filed an application to set aside the ex parte order of eviction and had got that order set aside. He denied that there was any partition between his shop and Elumalai's. He filed some documents to show that his shop is not situated at No. 1 Rattan Bazar. The learned Presidency Magistrate, however, believed the evidence of P. Ws. 1 to 5 and convicted the revision petitioners as mentioned above.
4. It is now contended that the conviction is unsustainable even if the evidence of P. Ws. 1 to 5 is accepted.
5. I find that there are no grounds to disbelieve the evidence of P. Ws. 1 to 5 which has been accepted by the learned Presidency Magistrate. P. W. 1 is the complainant, P. W. 2 is the bailiff, P. W. 3 is a customer of P. W. 1 who happened to come to that tailoring shop at that time and P. W. 4 is the agent of P. W. 1. Their evidence clearly shows that P. W. 2, the bailiff in execution of the delivery warrant issued in E. P. No. 558 of 1972 came to the premises No. 1 Rattan Bazar Street and showed the delivery warrant to the first revision petitioner who thereupon took out all the articles which he had kept in his shop in the downstairs portion of the premises and vacated the shop and the bailiff P. W. 2 then closed the door of tile shop and delivered possession of it to P. W. 4 on behalf of P. W. 1 and wrote on the door that possession had been delivered. The evidence of P. Ws. 1, 3 and 4 shows that after that when P. W. 2 had gone to deliver possession of Elumalai's portion of the premises, the first revision petitioner assisted by the second revision petitioner made a re-entry into the portion which was vacated by the first revision petitioner earlier and put back the articles, which the first revision petitioner had removed from there and thus got into possession of that portion. No doubt, P. W. 2 the bailiff, does not speak to the re-entry by revision petitioners 1 and 2 for at that time he was attempting to deliver possession of Elumalai's portion and an obstruction was caused to that delivery of possession and hence he was engaged in that matter. The evidence of P. Ws. 1, 2, 4 and 5 shows that the third revision petitioner kicked the plywood partition between the first revision petitioner's portion and Elumalai's portion and broke it. That act of the third revision petitioner in so damaging the partition would certainly amount to an offence under Section 426, Indian Penal Code. Therefore the conviction of the third revision petitioner for an offence under Section 426, Indian. Penal Code is quite correct and it is confirmed.
6. The question is whether the conviction of revision petitioners 1 and 2 for the offence under Section 448, Indian Penal Code is correct. It has been strenuously contended by the learned Counsel for the revision petitioners that even if it is assumed that after the bailiff had delivered possession of the premises to P. W. 4 revision petitioners 1 and 2 effected reentry into these premises and re-occupied it, their act would not amount to an offence of house trespass for they did so under a bona fide claim of right without having any of the intents specified in Section 441, Indian Penal Code. No doubt it appears that the order of eviction obtained by P. W. 1 for the eviction of the first revision petitioner and Elumalai from the downstairs portion of No. 1, Rattan Bazaar Street was an ex parte order which has since been set aside on the application of the first revision petitioner. It is therefore contended that the act of revision petitioners 1 and 2 in effecting reentry into that shop was for the sole purpose of maintaining their possession of the shop. It was also argued by their learned Counsel that in reality, actual possession of the shop premises was not delivered to P. W. 1 or P. W. 4 but that the bailiff P. W. 2 merely effected what is called paper delivery. That argument, of course, cannot be accepted in the face of the testimony of P. Ws. 1 to 4 and the endorsement made by bailiff in the delivery warrant.
7. In Sinnasamy Selvanayagam v. The King 1951 MWN Cri 117 it has been observed that Section 441, Indian Penal Code is not intended to provide cheap and expeditious method of enforcing a civil right and the section deals with occupation, which is a matter of fact, and not with possession, which may be actual or constructive and may involve matters of law and has no application where the fact of occupation is consistent, the only change being in its character. It was observed in that decision that to bring a case within Section 441, Indian Penal Code, the intention specified in the section must be the dominant intention and 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 and 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. It may, however, be noted that in that case, admittedly the accused person was in occupation of the property in question and it was for continuing to remain in occupation of the property even after a notice was given to him terminating his employment and directing him to hand over possession of the property that the accused person therein, who claimed the right to stay on in the estate since for generations he and his family had lived there was charged with an offence under Section 448, Indian Penal Code. It was in those circumstances that it was held that the act of the accused person would not amount to criminal trespass under Section 441. Indian Penal Code for his dominant intention was not to intimidate or annoy the complainant or to commit an offence but only to assert his right to remain in occupation of the property.
8. In Vullappa v. Bheenia Row ILR (1918) Mad 156 : (1918) Cri LJ 162 it was held that trespass is an offence under Section 441, Indian Penal Code only if it is committed with one of the intents specified in the section and proof that a trespass committed with some other object was known to the accused to be likely or certain to cause insult or annoyance is insufficient to sustain a conviction under Section 448, Indian Penal Code. There, the accused persons entered into the complainant's house in spite of his protest and insisted on searching the same and searched the house inasmuch as the second accused's son was suspected of having stolen some jewels.
9. In Mathuri v. State of Punjab : 5SCR916 it was observed by the Supreme Court that the mere fact that the natural consequence of the entry was known to be annoyance to the person in possession would not necessarily show that the entry was made with intent to annoy within the meaning of Section 441, Indian Penal Code and 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 and the Court has to take into consideration all relevant circumstances including the presence of knowledge that the natural consequences of the entry would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such annoyance etc., being the dominant intention which prompted the entry.
10. Yet another decision cited by the learned Counsel for the revision petitioners is the one in Kamalammal v. Meenakshi Ammal . There the accused and the complainant had litigated in a Civil Court for the title to and possession of the disputed property. The complainant had failed in the Civil Court and the suit filed by the accused for recovery of possession of the property in the occupation of the complainant was decreed. In those circumstances it was held that assuming that the facts are proved against the accused that she broke open the lock and got into the upstairs portion even then the trial Magistrate erred in not finding that the accused entered into or upon property in the possession of the complainant with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property and in those circumstances the accused was acquitted. Therefore that decision would not help the revision petitioners in this case.
11. On behalf of the Respondent the decision in Rash Behari Chatterjee v. Fagu Shaw : 1970CriLJ4 was cited. There the litigation for possession of a particular land alleged to have been trespassed upon ended and the complainant was able to obtain physical possession of the property with police help. But two weeks after that the accused persons chose to trespass upon the property and start construction and it was held that in those circumstances there cannot be any doubt, on the facts and circumstances, that the intention of the accused was to annoy the complainant who was in possession of the land and no other dominant intention which prompted the trespass could be found.
12. Yet another decision cited by the learned Counsel for the revision petitioners is the one in Parameswara Iyer v. Mrithunjaya Panicker 1964 MLJ Cri 97. There the complainant was put in physical possession of the property by the Civil Court and that Court actually authorised him to move the Criminal Court for necessary action for further acts of trespass committed in the property and it was held that in such a case it was not open to the Criminal Court to refuse to adjudicate on the criminal acts complained of for the mere reason that a civil suit in respect of the property is pending. It was observed there that the Criminal Courts ought to attach due weight to the record of delivery in deciding whether actual possession passed under the record.
13. In Sm. Subhana v. State : AIR1954All193 it was observed that possession of a house delivered to the complainant in execution of a decree is sufficient to show that it was he who was in peaceful possession of it and that possession he has by keeping the house locked is sufficient to attract the provisions of Section 441, Indian Penal Code. It was further observed there that when the dominion which the complainant had acquired over the property with the help of the Civil Court is invaded and usurped by the accused by breaking open the lock and clandestinely entering into the house the act of the accused could not but be a source of great annoyance to the complainant and one done to annoy the complainant who was in actual possession of the premises.
14. Another decision which has a .bearing upon and has relevance to the question at issue in this case is the one in Subramaniam Ambalau, 1959 MWN Cri 62. There the civil litigation between the parties had ended and in pursuance of the decree obtained by him from the Civil Court the complainant had taken delivery of possession of the property through Court and subsequently the accused persons made a re-entry upon the property. It was observed in those circumstances by P. N. Ramaswami, J., that mere assertion of a claim or right is not in itself a sufficient answer to criminal charges and it is the duty of the Criminal Court to determine what was the intention of the alleged offender and if it is found that he was not acting in the exercise of a bona fide claim of right, then it cannot refuse to convict the offender assuming of course that other facts are established which constitute the offence. It was further observed in that decision that where a dispute between the parties has been adjudicated upon by the Civil Court and possession has been given under a decree of Civil Court, it cannot be stated that the re-entry sought to be effected by the defeated judgment-debtor subsequently would amount to a bona fide claim of right. 'It is well settled that the Magistrate should not refuse to recognise the effect of prior proceedings in Civil Court and the Criminal Court is bound to support persons placed in possession of property by a Civil Court and whose possession has been wrongfully disturbed and it is for the other party to show that they subsequently come into possession by some lawful means. Decrees of Civil Courts are good until set aside/ and the Criminal Court cannot go into the question whether they are good and where there is a decree of a competent Civil Court adjudicating upon the rights of rival parties, the Criminal Court cannot by reason of the termination of the proceedings before it compel the successful party to go back to the Civil Court and get it done once over again. The comity of the courts require that the civil Judge and the Magistrate should respect the jurisdiction of each other.'
15. In the case now before me possession had been delivered of the portion in the occupation of the first revision petitioner to P. W. 4 by the bailiff P. W. 2 in pursuance of a warrant for delivery of possession issued by the Civil Court in execution of an order of eviction passed against the first revision petitioner by the Rent Controller. If after such possession had been delivered, the revision petitioners 1 and 2 had effected re-entry into that property by placing inside the premises the goods which earlier the first revision petitioner had taken out for the purpose of giving vacant possession to P. W. 4, certainly that re-entry was done with the intention of causing annoyance to the complainant. The fact that subsequently the ex parte order was set aside will have no relevance to the question whether at that time the revision petitioners 1 and 2 had the intention to annoy the complainants. Hence the conviction of revision petitioners 1 and 2 of an offence under Section 448, Indian Penal Code is also quite correct and it is confirmed. The sentence is not harsh and does not call for any interference. This revision petition is dismissed.