ANANTRAM Vs. EMPEROR

JUDGEMENT

(1.) THE applicants, Anantram, Chouaba and Sadaram were tried on the charges of offences punishable under Sections 148, 447, 324 and 109, I.P.C., and were found guilty of offences under Sections 147 and 447,I.P.C. They were sentenced to various terms of imprisonment. On appeal, the Sessions Judge, Chhindwara, upheld the convictions and sentences and in addition directed the applicants to execute bonds under Section 106, Criminal P.C., to keep the peace. The applicant Anantram was a ten-ant in Mauza Khairlanji. He was ejected from his land in September 1936 in execution of a decree which the malguzar Bhabutmal had obtained against him for arrears of rent. Anantram and his brother Godhan had been convicted in a previous case for forcibly removing crops from the field, but their convictions and sentences were set aside in Criminal Revision No. 137 of 1939. On 7th August 1938 Gajadhar Prasad, a servant of the malguzar Bhabutmal, went to the field and when he saw the accused ploughing it he objected and unyoked the bullocks from the ploughs and started to take them to the cattle pound. The applicants attacked him with lathis. Besides the three applicants there were many others who joined in beating Gajadhar Prasad and they were also tried with the applicants but for want of reliable evidence of identification they were acquitted.

(2.) IT is contended that the applicants could not be convicted of criminal trespass under Section 447, I.P.C, as they were already in possession on 7th August 1938 when the incident happened. They had been in possession in spite of the formal delivery of possession to Bhabutmal on 2nd September 1936. From the judgment in Criminal revision No. 137 of 1939 it is clear that Anantram had sowed the crops in 1937-38 and that they had also reaped those crops. They must therefore be held to be in possession on 7th August 1938 unless proved to the contrary. The Courts below have not found that Bhabutmal was in possession of the field on the critical day. The question is whether Anantram can, in the circumstances, be held to be guilty of the offence of criminal trespass. In Emperor v. Bandhu Singh (1928) 15 AIR Pat 124 it was held that continuance in possession of the trespasser is a recurring wrong and constitutes a new entry every time that the true owner goes upon the property or as near as to it as he dare to make a claim for it. But this case was dissented from in. Saibaj v. Gaffoor (1932) 19 AIR Nag 112 The view in Emperor v. Bandhu Singh (1928) 15 AIR Pat 124 cannot prevail in the face of the plain terms of Section 441 I.P.C. It contemplates two things: (1) entry into possession with intent to commit an offence or to intimidate, insult or annoy and (2) lawful entry followed by unlawful continuance with the aforesaid intent. It is clear that the offence of criminal trespass is complete as soon as there is unlawful entry. It is a continuing offence only when the entry is lawful and the subsequent possession becomes unlawful. In the present case the original entry was unlawful, and it was with reference to that circumstance that Pollock J. who decided Criminal Revision No. 137 of 1939 remarked that he could well have been convicted of trespass. When Gajadhar Prasad went to the field Anantram was already in possession. That possession must be presumed to have commenced with his unlawful entry on the land or some time after 2nd September 1936. There was therefore no fresh act of criminal trespass on 7th August 1938. The conviction of the applicants of the offence under Section 447, I.P.C, must therefore be set aside.

(3.) IN the present case however the sentences of long terms of imprisonment were excessive, particularly as they were ordered to execute bonds for keeping peace which was pre-eminently a suitable order in the case. Their learned Counsel assures me that they will seek their remedy in the Civil Court and not disturb the landlord's possession. I therefore reduce their sentences of imprisonment to the period already undergone by them, but confirm the order calling upon them to execute bonds under Section 106, Criminal P.C.