SELLAMUTHU SERVAIGARAN AND MOTTAYAN Vs. PALLAMUTHU KARUPPAN

JUDGEMENT

(1.) In this case it has been found that the accused with a view to support a fraudulent claim of title to a house, broke into it at night during the temporary absence of the owner, assaulted the owner s servant who was in charge of the house, and took forcible possession of it.

(2.) It is argued that the conviction of the accused for house-bracking by night under Section 457, I.P.C., cannot legally be sustained because there is no finding that the accused acted "with intent to commit an offence or to intimidate, insult or annoy any person in possession of the property" within the meaning of Section 441, I.P.C. The Sub-Magistrate says that the accused "made a forcible entry into the house in order to establish the sale deed," and the Sub-Divisional 1st Class Magistrate found that the accused "broke open the house to take possession of it by force." The Vakil for Petitioners relies on the case Queen Empress v. Rayapadayachi (1896) I.L.R. 19 M. 240 and on an unreported case Cr. Rev. Case No. 349 of 1909 (1909) 6 M.L.T. 262.

(3.) In the latter case the learned judges said : "The Magistrate finds that the intention of the accused was to take possession unlawfully of the land, and having found this, he says that the act of the accused necessarily involved annoyance to the complainant. * * * The act of the accused may have caused annoyance to the complainant, when he became aware of it, but unless the intention of the accused was to annoy (and this is not found) they cannot be found guilty under Section 447, I.P.C."