PARAS RAM Vs. STATE

JUDGEMENT

(1.) THIS revision has been presented against the judgment dated 30th June 1971, of the Sessions Judge Mandi in a case under Sections 447 and 448 of the Indian Penal Code whereby agreeing with the findings of the Magistrate First Class Sundernagar he has convicted the petitioner Paras Ram and has sentenced him to fine of Rs. 100/ in default simple imprisonment for a term of one month under Section 447 and to a fine of Rs. 200/ in default simple imprisonment for a term of two months under Section 448. Besides making this order of conviction, the learned Sessions Judge also confirmed the findings of the learned Magistrate under Section 522 of the Code of Criminal Procedure whereby the complainants have been restored possession of the land and building which were the subjectmatter of the dispute. The petitioner accused Paras Ram was proceeded against, upon allegations that on 1st May, 1966, he broke open the lock of a room meant for a school which was constructed by the local panchayat the construction having been completed on 30th April. 1966. It was further stated that Paras Ram accused along with three others also forcibly occupied Government land measuring 3 5 6 Bighas adjoining that room. He constructed his own cattle shed over a part of this land and he also cultivated the remaining part and raised his own crops. On these allegations, the case was instituted against Paras Bam and three others under Sections 447 and 448 of the Indian Penal Code.

(2.) THE learned Magistrate found that the two offences were brought home to the accused Paras Ram alone and, therefore he convicted and sentenced him in the manner stated above. Simultaneously, an order was also made under Section 522 of the Cri. P.C. restoring possession of this school building as well as the open site to the local Panchayat. The accused Paras Bam came in appeal before the Sessions Judge Mandi but could not succeed and his conviction and sentence were maintained. Similarly, the order of restoration of the property under Section 522 of the Criminal P.C. was also confirmed. He felt aggrieved of the decision and has come up in this revision.

(3.) THE offence of criminal trespass under Section 441 necessarily constitutes some distinctive elements, namely, the entry by the accused into or upon property, such property being in possession of another and the intention while making entry to commit an offence or to intimidate insult or annoy the person in possession of the property. In the present case there is no apparent dispute regarding the entry by the accused and the possession which the local Panchayat might have had over the land and the building. The dispute is regarding the intention with which the accused effected entry upon the land and the building. In every case where the impugned entry causes annoyance or insult, it cannot be said to be actuated by the intention to cause the said result. The distinction between the knowledge and intention is Quite clear, and that distinction must be borne in mind in deciding whether or not in a particular case the accused were actuated by the requisite intention. The said intention is always to be gathered from the circumstances of the case and it may be that the necessary or inevitable consequence of the impugned act may be one relevant circumstance. Both the Courts have apparently fallen into error of inferring intention of the accused from the knowledge which he may have had at that time that his action would cause intimidation, insult or annoyance to the local Panchavat. In fact the circumstances were established whereby the accused could be stated to have made a bona fide claim of right for the land and the building. If a person enters on land in the possession of another in the exercise of a bona fide claim of right but without any intention to intimidate, insult or annoy the person in possession, or to commit an offence, then although he may have no right to the land he cannot be convicted of criminal trespass, because the entry was not made with any such intent as constitutes the offence. Claim of right if bona fide will always give protection howsoever ill founded in law such claim may be. Bona fide claim of right or title necessarily implies that there may not be a completeness attached to such right or title. If one possesses actual right or title there can in fact be no occasion of his having a bona fide claim of such right or title because a claim of right or title necessarily implies a contest of right or title between the claimant and another. Therefore, it would be futile exercise to know as to whether the accused had proved his right or title for the property. If in the circumstances which go to make up the intention on the part of the accused a bona fide claim to property by assertion of his title is proved he would be protected and if he enters upon the property he does not commit criminal trespass. In the present case the accused seems to have bona fide believed that the title of the land and building vested in him and that is why he made the entry. For this the accused was not called upon to prove his defence similarly as the prosecution was supposed to prove the offence against him. The burden of proof was all along with the prosecution and the entire evidence should have been considered from this angle.