C.B. Capoor, J.C.
1. This reference and Criminal Reference No. 4 of 1961 can conveniently be dealt with together as common questions of law arise in both of them.
2. Sant Ram and Munshi Ram, the petitioners, were separately prosecuted for an offence under Section 447. I. P. C., for having trespassed upon land belonging to Government. When the petitioners appeared before the Court and the accusations were put to them they entered a plea of guilty and also undertook to give up possession. The learned Magistrate by judgments which have rightly been characterized by the learned Sessions Judge to be sketchy convicted the petitioners and sentenced petitioner Sant to pay a fine of Rs. 40/- and the other petitioner to a fine of Rs. 50/- and ordered the land trespassed upon to be restored to the respondent.
3. Applications in revision were filed before the learned Sessions Judge and in the main two points were raised. Firstly, that the petitioners could not have been convicted of the offence under Section 447, I. P. C., inasmuch as the respondent was not in actual possession of the land trespassed upon, and, secondly, that as the criminal trespass was not attended with force or show of force the order for restoration of possession made under Section 522,Cri. P. C., was without jurisdiction. The learned Sessions Judge rejected the first contention but was inclined to accept the second and accordinglymade the recommendation that the order under Section 522, Cri. P. C., be set aside.
4. The relevant portion of Section 522, Cri. P. C., runs as below:
'Whenever a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation and it appears to the Court that by such force or show of force or criminal intimidation any person has been dispossessed of any immovable property, the Court may, if it thinks fit. when convicting such person ........... order the person dispossessed to be restored to the possession of the same.'
5. It is thus clear that the aforesaid section does not come into play unless a person is dispossessed of any immovable property by force, show of force or criminal intimidation. In the instant cases there was nothing to show that the respondent was dispossessed of the disputed land as a result of force, show of force or criminal intimidation at the instance of the petitioners. The fact that the petitioners agreed to give up their possession would not confer jurisdiction on a Magistrate to order the land trespassed upon to be restored unless the conditions laid down in Section 522, Cri. P. C., are fulfilled. The orders for restoration of possession under Section 522, Cri. P. C. were thus not sustainable.
6. On behalf of the petitioners it was reiterated that the conviction for the offence under Section 447, I. P. C., was bad in law as the respondent was not in actual possession of the disputed land and in support of that contention reliance was placed upon the following cases: (1) Motilal v. Emperor, AIR 1925 All 540, (2) State v. Abdul Sukur, AIR 1960Cal 189, (3) Soram Parijat Singh v. Thongram Meri Singh, AIR 1960 Manipur 17 and (4) S. Vullappa v. S. Bheema Row, AIR 191 8 Mad 136(2) (FB).
7. Before I proceed to refer to the aforesaid cases. I would examine the question as if it wereone of first impression.
8. Criminal trespass for which punishment has been provided in Section 447. I. P. C., has been defined as below;
'Whoever enters into or upon property in the possession of another with intent to commit anoffence 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 commit an offence is said to commit 'criminal trespass'.'
9. The section consists of two parts. The first part deals with entry which is initially unlawful and the second with entry which is lawful in the beginning but becomes unlawful subsequently. The instant cases are of entry which is said to be unlawful from the very inception and I will, therefore, confine myself to the first part of the section only.
10. On analysis the following appear to be essential ingredients of that part: (1) Entry into or upon property in the possession of another. (2) Such entry should be with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.
11. The concept of possession embraces both actual and constructive possession. Possession may exist in law but not in fact and such possession is termed as constructive. The Roman lawyers distinguished possession in fact as possessio naturalis and possession in law as possessio civilis. It is trite law that every owner of property is presumed to be in possession of it unless the contrary is proved. The word 'possession' as used in the aforesaid section is, therefore, wide enough to include not only actual and physical but also constructive possession. The Legislature must be deemed to have been aware of the legal connotation of the word 'possession' when it used that word in Section 441, I. P. C. If the intention of the Legislature had been that actual and physical possession should be an ingredient of criminal trespass nothing would have been easier for it than to have qualified the word possession with the words 'actual and physical'.
12. It has next to be seen, if the wider connotation of the word 'possession' as used in the earlier portion of the section is restricted or cut down by anything in the subsequent portion. It has been argued that if the property trespassed upon is vacant and is not in the actual possession of any one then the trespass cannot cause annoyance to any one not even to the owner and as a necessary consequence entry in or upon the property of another with intent to annoy such person can take place only if that person is in actual possession. I am, however, unable to appreciate this line of reasoning. In my opinion, annoyance will be caused to the owner of vacant property if the same is trespassed upon with a view to oust him and he is not in collusion with the trespasser. He may have to take steps to recover possession and be involved in litigation and it cannot he gainsaid that to be involved in litigation is no pleasure.
It is thus quite conceivable that even though an owner may not be in actual possession of the property trespassed upon the act of trespass may annoy him. If trespass upon vacant land causes annoyance to its owner such trespass may also be committed with intent to annoy him. There undoubtedly is a distinction between the commission of an act with intent to annoy and the commission of an act with knowledge that it will or is likely toannoy. Unless there has been a declaration of the intention the intent will have to be gathered from the conduct of the accused and the surrounding circumstances and while an intent to annoy would not necessarily be deducible from knowledge that a certain act is likely to cause annoyance such knowledge may be taken into consideration in ascertaining the intent of the accused. An owner of property which is not in his actual possession may also in certain circumstances be the victim of criminal trespass. Thus, there is nothing in the context to restrict or control the wider connotation of the word 'possession' as used in the earlier portion of the section. On a construction of the section it cannot be said that in order to constitute criminal trespass it is absolutely necessary that the person in possession must be in actual and physical possession.
13. It has again been argued on behalf of the petitioners that no annoyance can be caused to the owner of property trespassed upon if he is not present at the time of the trespass. I am, however, unable to discover any logic behind the contention. Entry in or upon the property of another person may cause annoyance to him even if he be not present at the time of entry. A trespass with intent to cause annoyance to the owner may conceivably be made even though the owner be not present at the time of the trespass. The cause of annoyance is the violation of the rights of ownership and not the presence or absence of the owner at the time of trespass. The degree of annoyance may be more in the case of trespass in the presence of the owner but it is not correct that no annoyance is caused if the owner is not present at the time of trespass.
14. I now advert to the rulings relied upon on behalf of the petitioners. The first case that I propose to notice is that of Motilal v. Emperor, reported in AIR 1925 All 540. The facts of that case were as below: One Mt. Basanti was in possession of her husband's property which consisted inter alia of some shops. On her death the property was claimed by Kanahaiya Lal and Motilal. The property immediately in question was a shop which was in the occupancy of a tenant known Yusuf. Kanahaiya Lal filed a suit for rent against Yusuf which was decreed and thereafter Yusuf gave a notice to Kanahaiya Lal of his intention to vacate the premises and eventually vacated them on 2-10-1924. On the same day and before Kanahaiya Lal was able to take possession of the shop Motilal occupied it and locked it up.
Motilal was accordingly prosecuted for an offence under Section 448, I. P. C., and was convicted and the conviction was upheld by the Sessions Judge. It was, however, set aside by the High Court in revision on the ground that Kanahaiya Lal was not in possession of the house at the moment the trespass was committed either by himself or through any other person and that while he had the legal right to possession but that was different from being in possession within the meaning of Section 441. I. P. C. The ruling no doubt supports the contention put forward on behalf of the petitioners but it is respectfully submitted that if Kanahaiya Lal was legally entitled to the property of the husband of Mt. Basanti he must be deemed to be its ownerfor inheritance cannot remain in abeyance and in the eye of law he must be deemed to have been in possession.
15. In AIR 1918 Mad 136(2) (supra) it was held by the majority of the members of the Full Bench that a person who enters into possession of property of another with an intent other than to intimidate, insult or annoy or to commit any offence but with the knowledge that his act is likely or certain to cause annoyance or insult to the person in possession is not guilty of an offence under Section 448 and with that proposition of law I am in entire agreement subject to this modification that the knowledge that an act is certain to cause annoyance may lead to the inference that it was committed with intent to annoy. Ayling, J. one ox the Judges composing the Bench made the following, if I may say so with respect, pertinent observations:
'A mere knowledge that the trespass is likely to cause insult or annoyance to the owner of the property does not amount to an intent to insult or annoy within the meaning of Section 441, I. P. C., but where the trespasser knows that his trespass is practically certain, in the natural course of events, to cause insult or annoyance to the owner of the property it is open to the Court to infer an intent to insult or annoy. It is a question of fact whether this presumption of intent is displaced by proof of any independent object of the trespass.'
16. In AIR 1960 Manipur 17 referred to above, what was held was that persons who merely have a right to graze cattle on another's lands for personal needs cannot be said to be in possession within the meaning of Section 441, I. P. C. With that proposition of law there can be no quarrel. Persons who have merely easementary rights over certain property cannot be said to be in possession thereof.
17. In AIR 1960 Cal 189 (supra) the facts were that Abdul Sukur and one Abdul Gafur were tenants of the complainant in respect of certain land over which some huts were constructed by the accused persons. The lands with the huts thereon were purchased by the complainant at an auction sale in execution of a decree against the accused and thereafter he obtained vacant possession through the Civil Court peon with police help. After having obtained possession the complainant locked up the southern gate but allowed some men who were carrying on tailoring business to live therein. Thereafter the accused persons and some others went to the place, drove out the persons who were carrying on tailoring business and forcibly took over possession. The complainant was, however, not present at that time and it was held that a case of criminal trespass was not made out. It may be pointed out, with respect, that the complainant had obtained possession and the tailors were in possession by his leave and licence and as such he was a person in constructive possession and the mere that he was not present at the time of trespass should not have made a difference provided the trespass had been committed with intent to annoy him.
18. In the case Bansidhar v. Emperor, reported in AIR 1942 Oudh 104 the word 'possession' as used in Section 447 was held to include constructivepossession and it was further held that where a trespass is committed on land in possession of licensee with a claim to the land the intention must be to cause annoyance to the proprietor and he can be said to be the person in possession of such property within the meaning of Section 441. In the course of his judgment, Agarwal, J., however, made the following obiter observation:
'If a person has only a right to some property and is not in actual possession of it either himself or through his tenant or agent he cannot be said to be a person in possession within the meaning of Section 441.'
19. It is respectfully submitted that the words 'in possession' either include constructive possession or not. If they do then there cannot be amiddle course and in principle no distinction can be drawn between an owner who is not in actual possession either by himself or through his tenant or agent and an owner on whose behalf his tenant or agent is in possession. In either case the possession is constructive. In the case of trespass upon property in the possession of a tenant, licensee or agent annoyance is caused both to the owner and the person in actual possession provided there is no collusion between them and the trespasser and in the case of trespass upon property which is not in the actual possession of the owner or his tenant, licensee or agent annoyance is caused to the owner, There does not appear to be any good reason as to why a violation of the proprietary rights by trespass with intent to annoy the owner of the property whether he be in actual possession or not be not considered to be within Section 441, I. P. C.
20. There is no reported decision of this Court on the question under consideration. In an earlier case Criminal Ref. No. 15 of 1960, Narainu v. State I had expressed the opinion that the true owner of a property is deemed to be in possession of it even though he or any one on his behalf may not be in actual possession and that a trespass upon such property results in the dispossession of the true owner. The question was, however, not considered in any detail and in view of the contrary opinions expressed by the Allahabad and Calcutta High Courts, I have given to it my most anxious consideration and my conclusion, as already indicated, is that it would be restricting the connotation of the words 'in possession' if they are interpreted to mean actual and physical possession only and not possession which is constructive and in law also. I am, therefore, unable to accede to the contention advanced on behalf of the petitioners. The orders of conviction do not merit interference.
21. The references are accordingly accepted and the orders restoring possession to the respondent under Section 522, Cri. P. C., as recommended by the learned Sessions Judge are set aside.
22. Let a copy of this order be placed on therecord of Criminal Reference No. 4 of 1961.