VEERATHAIAH AND Vs. RAMASWAMY IYENGAR

JUDGEMENT

(1.) The petitioners have filed this revision petition against the order passed by the Second City Magistrate, Mysore in C. C. No. 5596 of 1961 convicting them in a summary trial for the offence of house trespass under Section 448 of the Indian Penal Code and sentencing each of them to pay a fine of Rs. 100/-, in default to undergo simple imprisonment for one month.

(2.) The prosecution was started on a complaint filed by the respondent on 19-7-1961 complaining that the accused committed house trespass punishable under Section 453, I. P. C. by forcibly entering into a portion of the building bearing No. 81 in Kumaraswamy Galli, Kille Mohalla, Mysore City on 13-9-1960 at about 6-45 A.M. after breaking open the lock. The accused pleaded not guilty. On the evidence the learned Magistrate held that the accused had committed house trespass and had forcibly entered into the house in the possession of the complainant with intent to causine annoyance and wrongful loss. He. however, expressed that he was not prepared to believe the uncorroborated testimony of the complainant on the Question of breaking of the lock. He accordingly passed the order of conviction and sentence mentioned above.

(3.) In this petition, the learned Advocate for the petitioners Sri Mahesh Chander Guru has not disputed the facts found by the Magistrate, but his primary contention is that the learned Magistrate committed an error in convicting the accused as they could not be credited with the intention of causing annovance to the complainant who was not present in the building at the time of the entry by the accused. Section 441. I. P. C. which defines criminal trespass lays down that whoever enters into or upon a 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. Section 442, I. P. C. enacts that whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, or any building used as a place for worship, or as a place for the custody of property, is said to commit house-trespass. Reading the two sections together and referring only to the relevant portions it would be quite clear that whoever enters into or remains in any building used as human dwelling house with intent to intimidate, insult or annoy any person in possession of such property shall be guilty of house-trespass. None of these two Sections requires that the person in possession of the building must be present at the time of entry; it is enough if the property is in the possession of the complainant and the entry is effected by the accused with the intention of intimidating, insulting or annoying him. To hold that the person in possession must be present when the accused enters into or upon the property is to introduce an element which is not to be found in Sections 441 or 442 of the Indian Penal Code.