S VULLAPPA Vs. SBHEEMA ROW

JUDGEMENT

(1.) The question in this case is, what is the. meaning of "with intent to annoy" in Section 411 of the Indian Penal Code. In his History of the Criminal Law, Vol. II, p. 100 Sir James Stephen gives the following definition of intention: "The direction of conduct towards the object chosen is called the intention or aim (for the metaphor involved in the word is obviously taken from aiming with a bow and arrow)." and he distinguishes the aim or intention of an act from the motive or reason which actuated the person doing it. At the same time he admits (page 110) that intention is frequently used and understood as being synonymous with motive, and speaks of " two common fallacies, namely, the confusion between motive and intention, and the tendency to deny an immediate intention because of the existence real or supposed of some ulterior intention. For instance, it will often be argued that a person ought to be acquitted of wounding a police man with intent to do him grievous bodily harm, because his intention was not to hurt the police-man but only to escape from his pursuit. This particular argument was so common that to inflict grievous bodily harm with intent to resist lawful apprehension is now a specific statutory offence." That is to say, the legislature in England has now solved the difficulty by making the intent to resist lawful apprehension the gist of the offence. If we are to apply these tests to the present case, there can be no doubt that the accused must be taken to have intended to annoy the complainant when he trespassed on his house in spite of his protests even though his ulterior intention was to search for his own jewels which he believed to be hidden there. On the other hand it is clear that this was not the view of the meaning of intent taken by Macaulay and the other Indian Law Commissioners in the draft Penal Code. They regarded the maxim that every one must be taken to intend the natural consequences of his acts as a fiction which should not be recognised in the Penal Code. Their treatment of this question elicited many criticisms which were met in paragraph 100 of the first report on the Penal Code by the Indian Law Commissioners." The Commissioners saw clearly the difference between intent" and "knowledge of likelihood," and meant to express it distinctly in order to avoid the necessity of fiction in laying charge as for example by imputing " intent" constructively when the circumstances imply only a knowledge of likelihood" advisedly intending as they did that there should be no distinction in general, in respect of penal consequences between cases in which a man causes an effect which is an offence designedly, and cases in which "he causes it by doing what " he knows is likely to cause it." Advisedly intending this in general they worded the enactment so that the charge may be always expressed according to the truth." (The Indian Penal Code as originally framed: Madras Higginbotham & Co., p. 215).

(2.) Their view was in the language of the Commissioners that there should in general be no distinction in respect of penal consequences between cases in which a man causes an effect which is an offence designedly and cases in which he causes it by doing what he knows is likely to cause it, but that it should expressly be made punishable to do the act with knowledge of the likelihood as they call it. An examination of the Indian Penal Code as finally passed into law shows that it was framed on these lines. The maxim that every one must be taken to intend the natural consequences of his acts is incorporated in the definition of " voluntarily " in Section 39, and thus made applicable in every section where that word is used. More generally doing the act with a criminal knowledge or a criminal intent is expressly made punishable. Section 39 speaks of "an act which is criminal only by reason of its being done with a criminal knowledge or intention" and the distinction is observed in Sections 87 to 89; 166 and 167, 194, 295, 297, 299, 350, 366, 367, 425, 499, 504 and 505, in all of which doing the act with intent and doing the act with a knowledge of the consequences are both made punishable. The same result is effected by the addition of the explanation to Section 188. In Section 350 in particular it is made punishable to use force " intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury fear or annoyance to the person to whom the force is used." The contrast with the language of Section 441 is very suggestive,

(3.) In these circumstances, when in the isolated Section 441 doing the act with the specified intent is alone made punishable, the inference appears to be that the legislature did not intend that in this section doing the act with a knowledge of its consequences should be punishable. The only other section resembling this which I have noted on a cursory examination of the Code is Section 201, and the omission as regards Section 441 may be explained by the fact that trespassing with intent to annoy was a new offence unknown in English Law. This is the view on which Queen Empress v. Rayapadayachi (1896) I.L.R. 19 M. 240 was decided and I think it should be followed in preference to Emperor v. Lakshman (1902) I.L.R. 26 B. 558 and the judgment of Benson, J. in Sellamuthu Servaigaran v. Pallamuthu Karuppan (1911) I.L.R. 35 M. 186.