PRAYAG SINGH Vs. MRSMORGAN

JUDGEMENT

(1.) This was a Rule calling upon the District Magistrate of the 24-Pergannas to show cause why the conviction of the petitioner and the sentence passed upon him should not be set aside, or why such other order should not be made as to this Court might seem fit and proper. The charge against the petitioner was that he on the 14th of February 1920 committed house- trespass by entering the room of Charitra Singh, in order to cause annoyance to the said Charitra Singh by taking away Lalia Dasadin, and thereby committed an offense punishable under Section 448 of the Indian Penal Code and within the cognizance of the Court of the Magistrate at Barrackpur. The charge was investigated by the learned Magistrate, Mr. Haris Chandra Sarkar, and he convicted the petitioner under Section 448, Indian Penal Code, and sentenced him to pay a fine of Rs. 30, in default to ore month s rigorous imprisonment.

(2.) The material fasts which it is nesessary for me to state are as follows: "Mrs. Morgan was the complainant in this case and she appears to be a house-owner in Tettagarh, where she has her own dwelling house as well as certain tenanted houses. Charitra, who is named in the charge, was a tenant in one of the rooms in one of her tenanted houses, and this Charitra had been living with a woman named Lalia Dasadin; and, on the date in question, it is alleged that the petitioner, together with others, had broken through the wall of the tenanted house, while Charitra was having his bath, and that he succeeded in taking away the woman out of the bouse. There can be no doubt that the breaking into the bouse was done with the object of annoying Charitra--that is not disputed by the learned Vakil who appears in support of this Rule--and, it further appears that the property in question was entered upon by the petitioner, such property being in possession of another, namely, Charitra, with intent, as I have already said, to annoy Charitra who was in possession. Therefore, the charge, as laid, was a good charge; and, the conviction was a proper conviction upon the facts of the case. But the learned Vakil has taken the objection that inasmuch as Mrs. Morgan was the complainant and Charitra was not the complainant, the conviction ought to be set aside. That is the sole point for our decision.

(3.) The learned Vakil relied upon a case Chandi Pershad v. Evans 22 C. 123 : 11 Ind. Dec. (N.S.) 83 and the passage on which he principally relied is at page 130, which is ass follows: "the broad question we have to consider is whether, upon the facts as stated, the offence of house trespass, as defined in Section 442, Penal Code, has been committed by Chandi Pershad against Mr. Evans, We say against Mr. Evans, because the offence, if any was committed, was not one for which the Commissioners could prosecute and could throw the expenses on the rates under Section 352 of the Municipal Act, but was an offense against the complainant, Mr. Evans alone, which he could himself compound for any satisfaction, pecuniary or otherwise, made to himself, under Section 345 of the Procedure Code. Whether the charge is made under Section 441 or Section 442, the prosecution must prove that the property trespassed upon was at the time in the possession of a complainant who could compound the offense under Section 345 of the Code, and, as this is the case, we think the charge must fail, even if there were no other reason, on the ground that the complainant s own statement, so far from showing that the room was in his possession, shows that it was not, but that he was merely sitting in it with other persons at the invitation and with the consent of the person, whoever be may be, as to which we know nothing, who is in possession of the room, in the well-understood sense that he is the person to whom the right to immediate possession belongs." The learned Vakil relied upon that passage as showing that inasmuch as Charitra Singh was the only parson who could have compounded this offence and inasmuch as Charitra Singh was not the complainant, therefore, the conviction ought to be set aside. In my judgment, the passage is not an authority for that proposition. I think the learned Judges in the passage, which I have quoted, were emphasizing the point that Mr. Evans, who was in fact the complainant in that case, was not a person who could compound the offence, because he was not in possession. And, my reading of that judgment is confirmed by the case of Imperatrix v. Keshavlal 21 B. 538 : 11 Ind. Dec. (N.S.) 359 which was drawn to my attention by my learned brother, because in that case, the case of Chandi Pershad v. Evans 22 C. 123 : 11 Ind. Dec. (N.S.) 83 was cited and, it was held that the words any person in possession" in Section 441 did not mean only "a complainant in possession," there being no authority for taking the offenses of mischief and criminal trespass out of the general rule which allows any person to complain of a criminal act, Mr. Justice Jardine who delivered the judgment said this (at page 533); "Mr. Robertson contended that the only person having a right to complain of criminal trespass is the person in possession or the person injured, and sited Reference in the cue of Kalinath Nag Chowdhury 9 W.R. Cr. 1 and Chandi Pershad v. Evans 22 C. 123 : 11 Ind. Dec. (N.S.) 83. We do not think it can be contended that the learned Judges meant to say that in Section 441 of the Penal Code the words any person in possession mean only a complainant in possession. Nor is that construction supported by Iswar Chandra Karmakar v. Sital Das Mitter 8 B.L.R. App. 62 : 17 W.R. Cr. 47." I agree with the conclusion at which the learned Judges of the Bombay High Court arrived; and, for the reasons I have mentioned I am of opinion that the contention that this conviction ought to be set aside merely on the ground that Mrs Morgan was the complainant and Charitra Singh was not, ought to be acceded to.