BED PRAKASH SHARMAH Vs. THE STATE OF ASSAM

JUDGEMENT

(1.) A conviction under Section 447 of the Indian Penal Code by the trial Court which has been upheld by the learned Sessions Judge has brought the Petitioner before this Court, though the sentence awarded is a fine of Rs. 200/ -, because the learned Against the judgment and order dated 30.9.81 passed in Criminal A Appeal No. 12 (K -4) of 1980 by the Serious Judge, Kamrup, Gauhati upholding the conviction in G.R. Case No. 364/77 passed by Shri G.C. Deka on 30.10.80.

(2.) BEFORE we come to the order of eviction, let it be seen whether the prosecution has established the guilt of the Petitioner under Section 447 of the Indian Penal Code. The learned Sessions Judge has upheld the conviction by observing that occupation or illegal occupation of a vacant land in the absence of real person would itself amount to criminal trespass as that would surely be a cage of intimidation and annoyance. While thus stating the law, I am afraid the learned Sessions Judge has committed a palpable mistake in law. Every entry upon a vacant land, even if illegal, cannot be a criminal trespass inasmuch as when Section 441 speaks of entering on property, with intent to commit an offence or to intimidate, Jesuit or annoy any person in possession of the property, it speaks of the main intention and not any subsidiary intention, that may also be present. As stated in Mathri v. State of Punjab : AIR 1964 SC 986 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 satisfy itself that causing such an annoyance, intimidation or insult was the aim of the entry and 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 person entering.

(3.) THIS apart, Shri Phukan urges for the Petitioner that the present was a case of bona fide claim of right. He refers to the statement of the accused -Petitioner under Section 313, Code of Criminal Procedure and draws may attention to the evidence of the D.W. 1 The learned Counsel also refers to the statement of P.W. 1 in cross -examination, to whom the land belongs, that the accused had sought Raiyati Khatian in respect of this land which prayer was, however, rejected on 8.2.78. Relying on these materials, Shri Phukan submits that the present was a case of bona fide claim of right and refers to Manik Chandra v. State of Maharashtra : 1975Cri. L.J. 1044. The learned Public Prosecutor submits that the materials on record do not establish the case of the Petitioner that he had been given settlement by the husband of P.W. 1 inasmuch us the Mandal who is said to have shown the boundary was not examined, and D.W. 1 is not a fully reliable witness for reasons given by the Courts below. The question, however, is not whether the case of the Petitioner that be was given settlement is correct or not in so far as the present proceeding is concerned. The question rather is whether he was trying to remain on the land because of any bona fide claim on his part. The effort of the Petitioner to obtain raiyati khatian would indicate that he was trying to assert his right on the land. Be that as it may, as from the materials on record it cannot be held if the present was a case of criminal trespass for reasons given above, the conviction cannot be sustained and the same is set aside. Along with it falls the order of eviction.