JALADHAR BEHERA AND ORS. Vs. BHUBANESWAR PADHAN

JUDGEMENT

(1.) THIS is a revision against the conviction of the Petitioners under Section 448 of the Indian Penal Code and the non -appealable sentence of fine of Rs. 30/ - each passed by a 1st class Magistrate of Khurda.

(2.) THE charge against the Petitioners was that, on the 30th of April, 1954 they committed house trespass by entering inside the newly built house of the complainant and reefing to vacate the same and chasing him out with lathis when he objected. The house in question originally belonged to Petitioner Jaladhar Behera; but he sold it to one Agadhu Padhan, the uncle of the complainant, sometime in 1929. In a subsequent partition between Agadhu and the Complainers father it fell to the share of the complainers father. At that time the house was a kutcha one. After partition the complainant remodelled the house and built a brick wall. Just when the construction of the house was nearing completion the Petitioners are said to have entered the house during the temporary absence of the complainant and when he went and remonstrated they chased him out with at this.

(3.) IT was, however, urged that the conviction of the Petitioners under Section 448 I.P.C. must fail inasmuch as the necessary criminal intention for the purpose of Criminal trespass as defined in Section 441 I.P.C. was not made out. In the charge it was stated that the entry was effected with the intention of forcibly occupying the house. The evidence, which has been believed, is to the effect that the Petitioners were already in occupation of the house when the complainant went and protested and that they chased him out with (sic) this and refused to vacate the same. Once the possession of the house be held to be with the complainant, this conduct of the Petitioners would clearly come within the mischief of Section 441 I.P.C., because the later portion of the section clearly says that even though the original entry may be lawful if a person remains there unlawfully with the intention of intimidating, insulting or annoying anybody in possession of the house he is equally guilty of that offence: Here, when the Petitioners chased out the complainant with lath is when he objected to their remaining in occupation of the house they clearly intimidated him and consequently when they continued to remain in the house with the criminal intention of intimidating him, the ingredients of Section 441 I.P.C. can be said to have been established. It is true that the expression 'intimidate' was not used in the charge nor has it been clearly mentioned in the judgment. But the finding is to the effect that the occupation of the house was forcible and that the complainant was driven out by show of force. This finding is sufficient to establish the criminal intention of the Petitioners for the purpose of Section 441 I.P.C.