HABIB MUSALMAN Vs. EMPEROR

JUDGEMENT

(1.) THE applicant, Habib Musalman, has been convicted of an offence under Section 447, I.P.C., and fined Rs. 15.

(2.) THE fact of the case are sufficiently clear from the lower Courts' judgments and need not be repeated here. The pleader for the applicant has urged, that there is no material on which to impute to, the applicant a design to annoy the complainant Chamra by his forcible entry on the field. It is urged that he made such entry under a bona fide belief that he was entitled to enter upon the field and to cultivate it, and the decision in Emperor v. Motilal A.I.R. 1925 All. 450 has been relied on in this connexion. I may at once point out that an important difference in the facts arises in the latter case. In it the learned Chief Justice and Justice Mukerji held that the complainant Kanhaiyalal was not in actual physical possession of the house at the moment the trespass was committed. Here, the facts are very different. The complainant was in possession as a tenant under a legal lease and had paid nazarana for the land and had duly been paying rent therefor. It is true that formal possession had been given to the decree-holder, now represented by Habib in the present proceeding (vide the receipt, D. 1), but that possession was clearly only proprietary possession, and not possession as a tenant, so long as Chamra's lease stood good.

(3.) IT is true that the ultimate object of the applicant was to obtain possession of the land either on his own behalf or on behalf of the decree-holder, but in an extreme case like the present, the applicant must be presumed to have intended the obvious intermediate results which he knew would happen in the natural course of events, if he persisted in his main intention. On the finding of fact arrived at by the First Class Magistrate in his appellate judgment, a finding which I see no reason to disturb there can in the present lease be no doubt but that the applicant knew he was taking a short and illegal cut towards obtaining cultivating possession of the field instead of the lengthier and more elaborate process of resorting to the civil Court. In chose circumstances, I am satisfied that all the elements of criminal trespass were present in this case and I dismiss the application without notice to the Crown.