EMPEROR Vs. MRS S DCUNHA

JUDGEMENT

(1.) THIS is an application in revision against an order made; by the Cantonment Magistrate, First Class, Kirkee, convicting the accused of criminal trespass under Section 448, Indian Penal Code, and directing possession of the house alleged to have been trespassed upon to be returned to the complainant under Section 522 of the Criminal Procedure Code.

(2.) THE relevant facts are that the complainant got a mortgage decree against accused No.1, Mrs. D'cunha, and in execution of that decree the complainant obtained an order for delivery of possession. THE children of Mrs. D'cunha then raised a claim that the mortgaged property had belonged to their father, and that their mother had no power to mortgage it, and they applied for a stay of execution, and on August 23, 1934, the First Class Subordinate-Judge in whose Court the matter was pending granted an order staying execution. That, no doubt, was an order in favour of the children, but if execution was stayed in their favour, the natural result would be that they and their mother would remain in the house. On the same day, namely, August 23, 1934, the bailiff, in execution of the decree for possession, gave possession to the complainant. Later in the day the accused arrived at the house, and it is suggested, were guilty of criminal trespass. Now the actual complaint is that the complainant's men were driven out of the compound, and according to the complainant he then told them to go home as it was raining, and he left Mrs. D'cunha and her children in the verandah of the house in the-evening of August 23, and next morning he found that they had not remained in the verandah of the house, but had got inside the house, and that was the criminal trespass complained of. THE complaint was lodged on August 24, and it is, I think, unfortunate that the learned Magistrate did not take the view that this was a case in which the complainant was seeking to enforce a civil right by means of the criminal Courts, and that no criminal act was shown. THE amount of public time and public money which is wasted in this country by criminal complaints the sole object of which is to try and improve the position of the complainant in civil litigation is really deplorable. However, the learned Magistrate does not seem to have perceived that this was merely an attempt by the complainant to recover possession of the house: without going through the procedure which would be necessary in the civil Court, and he convicted the accused of criminal trespass, and made an order for possession under Section 522. THE learned Magistrate finds that vacant possession was given to the complainant by the official of the Court, and then he says that from the panchanama it seems that all the doors were closed and locked and the accused got entrance by forcing the door which was bolted from inside. That is the only act of trespass. THEn he says, " I find that this act of the accused of taking law into their own hands by forcibly entering into the bungalow clearly shows their intention of annoying the complainant,"

(3.) THE case of Ex parte Mercer, In re Wise was followed by the English Court of Appeal in Holland, In re : Gregg v. Holland [1902] 2 Ch. 360.