SATISH CHANDRA Vs. KING

JUDGEMENT

(1.) THE petitioner has been convicted by the Additional Presidency Magistrate, Calcutta, of having committed house trespass, an offence punishable under Section 448, Penal Code and sentenced to pay a fine of Bs. 50 in default to under, go rigorous imprisonment for one month.

(2.) THE case for the prosecution is as follows: The complainant is a tenant under the accused with respect to certain premises, 87 Pataldanga Street. He left the premises temporarily after the communal disturbances of August 1946. He came back after some months, but further disturbances taking place in May 1947, he again -shifted his residence to another place but continued to use the aforesaid premises as an office. On 2nd October 1947 the accused broke open the lock and took possession of the premises. It is not the case for the prosecution that at the time of the alleged unlawful entry of the accused any one was there or that any one protested. Evidence was given on behalf of the prosecution to show that the accused had already taken proceedings in the sent Controller's Court and other Courts for the rejectment of the complain, ant and that these proceedings were pending and it was argued that in spite of the pendency of these proceedings he took forcible possession of the premises without terminating the tenancy. This in short is the case for the prosecution.

(3.) THE point for determination is whether in these circumstances the petitioner can be found guilty of house trespass. In order to determine this point, it would be best to refer to the relevant sections of the Penal Code. Criminal trespass is denned in Section 441 of the said Code. In order to constitute this offence, the accused must enter into 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. It is clear from the wording of the section that there can be no criminal trespass unless the "intent" specified in the section is present. The phrase "any person in possession of such property" is also to be remembered. The intent to annoy and intimidate must be not with respect to any and every person connected with the property but with respect to any person in actual possession of such property. A person in constructive possession is not contemplated by the section. Now, house trespass is denned in Section 442, Penal Code which says 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. It is quite clear from this section that the mere trespassing into the house of another does not constitute house trespass within the meaning of Section 442, Penal Code. The criminal intention and other ingredients specified in Section 441 of the said Code defining criminal trespass must be present in order to constitute the offence of house trespass. In short house trespass means criminal trespass in respect of a house. These are the sections which need be referred to. The question is whether in view of the provisions of these sections it can be said that the petitioner committed house trespass. Taking all the allegations of the prosecution to be true it may be said that the petitioner took unlawful possession of the property. The mere taking of unlawful posse - sion will not amount to either criminal trespass or house trespass. There is no evidence that the petitioner intended to commit any offence. An unlawful act is not necessarily an offence. The penal law deals with offences and an unlawful act which does not amount to an offence is a matter which has to be investigated by a Civil Court.