CHETTY ANUSUYA Vs. CHETTY BALKRISHNAMA

JUDGEMENT

(1.) The petitioner have been convicted Under Section 448, IPC, and have been sentenced to pay a fine of Rs. 500/ - (five hundred), in default to undergo R.I. for one month each by the learned Judicial Magistrate, First Class, Berhampur, in ICC No. 81/77. The accused persons carried on appeal against their conviction in Criminal Appeal No. 163/1980 and the complainant carried a revision to the learned Sessions Judge, Ganjam, in Criminal Revision No. 71 of 1980 as the Magistrate failed to direct the accused persons to vacate the disputed house in favour of the complainant in accordance with Section 456 of the Code of Criminal Procedure. Both o these appeal and the revision were disposed of by a common judgment wherein the learned Sessions Judge affirmed the conviction, but modified the sentence of fine reducing the same to Rs. 100/ -from Rs. 500/ -, in default to undergo S.I. for fifteen days and further directed that the accused persons should restore possession of the disputed house to the complainant. The accused persons have filed two criminal revisions in this Court, one directed against the conviction and sentence passed against them and the other against the direction to restore possession and both these revisions were heard together and are being disposed of by this common judgment. After stating the facts and findings of Courts below His Lordship observed.

(2.) Mr. R. K. Mohapatra, the learned counsel for the opposite party on the other hand, submits that the fact that the complainant was in exclusive possession of the house and the decree in favour of the accused persons is under challenge in appeal, the forcible entry of the accused persons would undoubtedly be with the intention to commit insult or annoyance and that finding having been arrived at -by the two Courts below, it will not be open for the revisional Court to interfere with the same. In my opinion, the contention of Mr. Mohanty, the learned counsel for the petitioners must be sustained and I do not find any force in the contention of Mr. Mohapatra, appearing for the opposite party. The complainant and the accused persons are co -sharers in respect of the disputed house and the accused persons have already got a decree in their favour to the extent of 5/48th and 1/48th share in the house in question since 1 -5 -1976. On the date of the occurrence as alleged by the complainant, the accused persons forcibly entered into the house in question What remains to be considered is whether such forcible entry by the co -sharers who have already got a decree in their favour to a portion of the house in question would constitute the offence of trespass or in other words whether the necessary ingredients of criminal trespass can be said to have been attracted in the facts and circumstances of the case or it would be a case of entry in exercise of a bona fide claim The law on the subject has been elaborately discussed by the Supreme Court in the case of Smt Mathri and Ors. v. The State of Punjab, AIR 1964 S. C. 986 where it has been held : '...The proposition that every person intends the natural consequences of his act, on which the learned counsel relies, is often a convenient and helpful rule to ascertain the intention of persons when doing a particular act. It is wrong however to accept this proposition as a binding rule which must prevail on all occasions and in all circumstances. The ultimate question for decision being whether an act was done with a particular intention all the circumstances including the natural consequence of the action have to be taken into consideration. It is legitimate to think also that when Section 441 speaks of entering on property 'with intent to commit an offence, or to intimidate insult or annoy' any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that may also be present...' After discussing several case laws on the point, the Sucrem Court observed: '...In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, It is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry, that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult and that this likely consequence was known to the persons' entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry'. Applying the aforesaid principles to the facts of the present case, I am firmly of the view that the complainant has failed to establish that the petitioners' entry into the house on the date of occurrence was with the dominant intention to insult or annoy the complainant. The two Courts below have failed to appreciate the correct legal position and have jumped to the conclusion merely on the finding that the complainant was in possession and the petitioners made a forcible entry. The fact that the petitioners on the date of entry had a decree in their favour goes a long way to prove their bona fide right of claim. The finding of the civil Court is that the house in question is the joint family property and the petitioners are co -sharers having an interest in the house in question. In that view of the matter, even if the complainant is found to be in exclusive possession, but mere forcible entry of other co -sharers will not constitute the offence of criminal trespass. Something more has to be found out that is the dominant intention of the entry of the accused persons. In the facts and circumstances of the present case, I am of the view that the accused -petitioners did not commit the offence of criminal trespass and accordingly their conviction Under Section 448, IPC, cannot be sustained in law. I would, therefore, set aside the conviction of the petitioners Under Section 448, IPC as well as the sentence passed thereunder The petitioners are accordingly acquitted of the said charge. Since the petitioners: have been acquitted of the charge Under Section 448, IPC, the direction of the learned Sessions judge Under Section 456, Cr. P. C., must also be set aside and the said direction is accordingly quashed. 9. In the result, therefore, both the criminal revisions are allowed.