(SHEIK) HYDER SAHIB Vs. SABJAN SAHIB

JUDGEMENT

(1.) This is a petition to revise an acquittal. The lower appellate Magistrate found that accused 2 was in a house which was in the constructive possession of the petitioner in that petitioner after obtaining possession in due course of law had looked the house and gone out. But since this was not actual physical possession he found, following In the matter of Govind Prasad [1879] 2 All. 465, that there could be no annoyance and therefore no criminal house trespass. With the greatest respect I cannot accept the view expressed in In the matter of Govind Prasad [1879] 2 All. 465, for it narrows the meaning of the section to ridiculous limits.

(2.) Suppose a man locks up his house and goes for a walk; suppose he locks up his godown, and some one enters with intent to annoy or offand, is it to be said that there is no annoyance or offence, unless he was actually sitting in his house or godown?

(3.) In fact the thief who has waited for the owner to depart could plead under Govind Prasad, In Re: [1879] 2 All. 465, that he was not criminally trespassing. Constructive possession is included in the word "possession" in Section 441, I.P.C. In the light of these observations the acquittal is set aside and the appeal will be reheard. The view expressed above is expressed in an unreported case of this Court in Chinna Venkatra V/s. Pedda Kisama A.I.R. 1931 Mad. 231.