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Abul HossaIn and ors. Vs. Masadul Haq and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
AppellantAbul HossaIn and ors.
RespondentMasadul Haq and anr.
Cases Referred and Rajbanshi Thakur v. Chandey Jha
Excerpt:
- .....facts of the present case comes clearly within the definition of section 441 of the indian penal code (criminal trespass). trespass itself, as the framers of the code said, is not an offence but a criminal trespass is an offence and the framers of the code, while analysing the ingredients of the criminal trespass, which i have already quoted in this judgment, laid down that by unlawful entry the trespasser commits a civil trespass but as soon as the owner comes and asks the trespasser to quit and the trespasser thereafter resists the command either with threat of injury, to him or intimidates him or commits any other offence which may not have in it as one of the ingredients, be-ins the use of criminal force or actually uses criminal force the act of trespass is then in either case.....
Judgment:
ORDER

S.N. Bagchi, J.

1. This Revision raises two points one of which has not been decided either by this High Court or by any other High Courts. The first question, as contended by Mr. Roy the learned counsel for the petitioners is whether on the evidence, the learned Magistrate was justified in holding all the accused petitioners guilty under Section 456/34 of the Indian Penal Code and sentencing each of them to pay a fine of Rupees 200/- each in default, to suffer rigorous imprisonment for three months each. The learned Magistrate directed that out of the fines, if paid. Rupees 500/-would go to the complainant P. W. 1 as compensation. The learned Magistrate further directed that the complainant should be restored to possession of the premises in question being No. 41, Bepin Behari Ganguli Street and directed the accused persons to vacate the premises and also directed the Officer-in-Charge. Bowbazar P. S. to enforce the order forthwith under Section 522 of the Code of Criminal Procedure.

2. Mr Roy, the learned counsel for the petitioners contended that upon the evidence Section 456/34 of the Indian Penal Code could not be invoked to convict and sentence the accused persons. Mr. Banerjee, the learned counsel for the opposite party, in reply, contended that the evidence of P. W. 2 considered by the learned Magistrate clearly showed that all the accused persons came into the room in question at one and the same time. Therefore the learned Magistrate rightly convicted and sentenced the accused-persons under Section 456/34 of the Indian Penal Code in the manner and to the extent I have already observed.

3. The next contention of Mr. Roy was that on the authority of the decision of a Division Bench of this Court in the case of Nanigopal Deb v. Bhima Charan Rakshit reported in 59 Cal WN 688. the learned Magistrate had no jurisdiction to pass the order under Section 522 of the Code of Criminal Procedure. With respect I must say that the Calcutta decision does not consider the true import of Section 522 of the Code of Criminal Procedure read with Section 441 of the Indian Penal Code. A number of decisions of other High Courts were placed before me by Mr. Banerjee, the learned counsel for the opposite party viz.. M. V. Berankutty Haji v. C. I. Raman. 50 Cri LJ 223 : AIR 1949 Mad 191. Mahabir v. Rex. 50 Cri LJ 338 : AIR 1949 All 228. Alakal Senappa v. State of Mysore AIR 1960 Mys 24 Francis D' Souza v. Edward A. L. Gameiro AIR 1960 Bom 139 and Rajbanshi Thakur v. Chandey Jha : AIR1951Pat307 and on the authority of those decisions Mr. Banerjee contended that the expression 'attended by criminal force or show of force or by criminal intimidation' as had been explained by their Lordships of the said High Courts consistently would bring the case within Section 522 of the Code of Criminal Procedure.

4. Now. let me examine Section 522 of the Code of Criminal Procedure in the context of the offence under Section 456 of the Indian Penal Code. I must start with Section 441 of the Indian Penal Code. Section 441 of the Indian Penal Code runs as follows:

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 with intent thereby to intimidate insult or annoy any such person or with intent to cornmit an offence, is said to commit criminal trespass.

Section 441 of the Indian Penal Code consists of the following ingredients:

(1) entry into or upon property in possession of another:

(2) if such entry is unlawful then remaining in the property unlawfully; and

(3) if such entry (means unlawful entry) and unlawfully remaining; that must be with intent to commit an offence or to intimidate or insult or annoy any person in possession of such property.

The use of criminal force is not a necessary ingredient in criminal trespass The Authors of the Code observed :

We have given the name of trespass to every usurpation however slight, of dominion over property. We do not propose to make trespass as such an offence, except when it is committed in order to the commission of some offence iniurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person. Even then we propose to visit it with a light punishment unless it be attended with aggravating circumstances.

Now, in criminal trespass use of criminal force is not a necessary ingredient. If that be so. let us consider the expression 'attended by criminal force or intimidation or show of force' as occurring in Section 522 of the Code of Criminal Procedure. We shall see there while we analyze the ingredients of Section 441 of the Indian Penal Code, the following ambngst other things.

Such entry meaning unlawful entry, or unlawfully remaining must be with intent to commit an offence or to intimidate etc.

Now if in the absence of the owner in possession of the property one commits trespass it is only a civil trespass upto that time. If the owner comes back and asks the trespasser to get out and the trespasser threatens the owner with some injury the offence is completed and then it is attended by criminal force or show of criminal force. Before the owner came and asked the trespasser to get out there could be no occasion for using any criminal force for making an entry into the property such as a room whether it is closed by a lock or it is open. But. as soon as the owner comes and asks the trespasser to get out and he resists the command by threats of injury expressed by words of mouth such as by intimidation the offence of criminal trespass is then attended by show of force. This very simple problem had not been considered either by the Division Bench of this High Court or any of the Division Benches of any other High Courts in the decisions that were placed before me by Mr, Banerjee as well as by Mr. Roy, Let me now come to the facts of this case. The Calcutta case which has been placed before me by Mr. Roy would not show that after the trespass had been committed, the complainant came and asked the trespasser to quit and the trespasser resisted the command with threatened injury to the complainant or intimidated the complainant. Therefore, there was no question for their Lordships of the Division Bench of this Court to consider the ingredients of criminal trespass as in Section 441 of the Indian Penal Code, read with the provisions of Section 522 of the Code of Criminal Procedure, particularly with reference to the expression 'attended by criminal force or intimidation or show of force.' Moreover, in the present case, the proved facts accepted by the learned Magistrate are that in the morning of the date of occurrence the complainant opposite Party came and locked the room. In the evening of the day, he came and found lights burning in the room. He came to the room and found it open and occupied by the accused persons. He asked them to quit and the accused-persons threatened him saying something which amounts to intimidation. So, the facts of the present case comes clearly within the definition of Section 441 of the Indian Penal Code (Criminal trespass). Trespass itself, as the framers of the Code said, is not an offence but a criminal trespass is an offence and the framers of the Code, while analysing the ingredients of the criminal trespass, which I have already quoted in this judgment, laid down that by unlawful entry the trespasser commits a civil trespass but as soon as the owner comes and asks the trespasser to quit and the trespasser thereafter resists the command either with threat of injury, to him or intimidates him or commits any other offence which may not have in it as one of the ingredients, be-ins the use of criminal force or actually uses criminal force the act of trespass is then in either case attended by either the use of criminal force or intimidation or show of criminal force as the case may fall within the definition of criminal trespass. Initial trespass was civil but subsequent act done by giving out threat of injury to the owner while continuing to occupy the room after being asked by the owner to quit the same converts the civil trespass into a criminal trespass. The Civil trespass becomes 'criminal trespass' when it is attended by 'use of criminal force or show of force or intimidation.' Resistance of the command to quit the trespassed premises either by threats of iniury to the owner even by words of mouth or intimidation or by actual use of criminal force brings the offence of criminal trespass in either of the cases within the expression 'attended by criminal force or intimidation or show of force' as occurring in Section 522 of the Code of Criminal Procedure. By show of force the trespasser continued to occupy the trespassed premises while using words of threat and continued to remain in the premises thereby preventing the owner to get free access into the premises. Therefore, the learned Magistrate was justified in passing the order under Section 522 of the ode of Criminal Procedure.

5. Mr. Roy's junior Mr, Durga Pada Dutta. drew my attention to the concluding part of the learned Magistrate's order where it is said that the Court directed the accused persons to restore possession to the petitioners. He submitted that such an order was irregular. But the learned counsel overlooked the order No. 31 dated 28-7-70 passed by the learned Magistrate. I quote the relevant portion of it:

Seen petition by de facto complainant P. W. 1 Masidul Haq for order u/s. 522, Criminal Procedure Code. Accused persons are also directed to vacate the premises at 41. Bepin Behari Ganguli Street (First floor Matkotta), Calcutta at once in favour of the P. W. 1 Masidul Haq under Section 522 Criminal Procedure Code and the O/C. Bowbazar P. S. be directed to enforce the order forthwith.

The last clause 'the Officer-in-charge, Bowbazar P. S. is directed to enforce the order forthwith' is a complete answer to the so-called irregularity in the order passed by the learned Magistrate. Therefore. I do not find any reason for interference with the order of the learned Magistrate.

The Rule is discharged and the conviction and sentence and the order complained of are confirmed.


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