K.G Varghese v. Annamma Mariamma And Others

1. In C.C No. 151 of 1966 on the file of the Additional First Class Magistrate's Court, Pathananathitta, the police charged the accused with offence under S. 447 of the Penal Code in that they trespassed upon a property in the possession of P.W 1 with intent to intimidate and annoy P.W 1. 30 cents of land comprised in S. No. 220/1A belonged to the father of P.W 1. He sold the property to the 1st accused under Ext. D. 1 sale deed dated 26-5-1113. In the sale deed it is recited that possession is banded over to the 1st accused. The father of P.W 1 died in 1124 M.E The prosecution case was that the father of P.W 1 and after his death P.W 1 continued to be in possession and enjoyment of the property notwithstanding the sale deed as the 1st accused was not in the station for well nigh 23 years and that they were effecting improvements in the property 7 cents of property, adjoining the property sold, belonged to the Government. That property was obtained by P.W 1's father on ‘kuthakapattom’ and was also in his possession from 1123; and it was subsequently registered in the name of P.W 1. On 4-8-1965, the accused attempted to trespass into the property (37 cents). P.W 1 then submitted Ext. P. 11 petition on 4-8-1965 to the Circle Inspector of Police, Pathanamthitta. The Circle Inspector directed P.W 1 to the Sub-Inspector of Police; P.W 8, who on 4-8-1965 made enquiries into the petition and warned the accused 1 to 3 not to interfere with the possession of P.W 1 of the property. Thereafter, the 1st accused filed O.S 357 of 1965 of the file of the Munsiff's Court, Pathanamthitta, against P.W 1 to restrain him by an injunction from entering into the property. P.W 1 appeared and opposed the application for interim injunction and the Court passed an order on 7-8-1965 stating that “the parties will maintain status quo”. On the night of 8-8-1965, the next day, accused 1 to 3 trespassed into the property and put up an old hut in the western portion of the 37 cents of land. On 8-8-1965 P.W 1 gave the first information statement, Ext. P-1(a) to the Pathanamthitta Police. The police investigated the case and filed the charge against respondents to this petition and four others.

2. The learned Magistrate after an evaluation of the evidence in the case came to the conclusion that P.W 1 was in possession of the property notwithstanding the sale deed in favour of the 1st accused and that the accused trespassed into the property as alleged by the prosecution, but that the accused did not commit the offence of criminal trespass as the dominant intention of the accused was not to intimidate, insult or annoy, but to establish the claim of the 1st accused to the property. The Court below has relied upon the ruling of the Supreme Court in Mathri v. State of Punjab, 1964-2 Cri LJ 57 : (AIR 1964 SC 986) in support of the proposition that what the Court has to look into in a case like this is the dominant intention of the party making the entry.

3. Mr. K. George Varghese, appearing for P.W 1, the petitioner, submitted that the Court below having found that P.W 1 was in possession of the property went wrong in searching for the dominant intention of the accused for deciding the question whether the entry of the accused into the property constituted criminal trespass or not. His argument was that even if the accused entered into the property with the object of establishing the claim of the 1st accused to the property, that was only their motive, that motive is different from intention, that intention is the desire to bring about a particular result or to bring about a result with the foresight that the result would be brought about and that is different from motive which is the purpose of doing an act and that the fact that the motive of the accused was to establish a claim to the property would non exonerate them from criminal liability:

“Motive is ulterior intention — the intention with which an intentional act is done (or, more clearly, the intention with which an intentional consequence is brought about). Intention when distinguished from motive, relates to the means, motive to the end; yet the end may be the means to another end, and the word ‘intention’ is appropriate to such medial end. Much of what men do involves again of intention (D pulls the trigger of his revolver in order to make the bullet enter P's body in order to kill P. in order to get him out of the way etc.), and each intention is a motive for that preceding it. In criminal law, it is generally convenient to use the term ‘intention’ with reference to intention as to the constituents of the actus reus, and the term ‘motive’ with reference to the intention with which the actus reus, was done. (See Criminal Law by Glanville L. Wiliams, page 41).

4. I am not satisfied that the learned Magistrate made any mistake on this score. I think, he Understood the distinction between motive and intention. His order is, therefore, not open to attack on this ground, although it is vulnerable for the reason that he has not considered the reason why the dominant intention of the accused was not to intimidate, insult or annoy.

5. Counsel then submitted that if the accused had the intention to commit an offence or intimidate, insult or annoy P.W 1 or if they had the knowledge that insult or annoyance would be inevitable result of their entry, then the fact that accused had also an intention, dominant, or otherwise, to establish the claim of the 1st accused to the property was immaterial for adjudging their guilt, as what the section defining the offence requires is only an intention to intimidate, insult or annoy. I think, if an act is committed with the intent specified in the Section defining the offence, it is normally in material that the act is accompanied by other intentions also.

“Suppose, then, a man has several intents, and, in pursuance of them, acting together, he does a thing which the law forbids. The rule here is, that if there exist the intents necessary to constitute the offence, and likes is intents not necessary, the latter do not vitiate the former, which still have the same effect in law as though they stood alone. Thus, under the English statutes against demolishing houses, if one object of a mob attacking a house is to injure a person in it; yet, if another and even inferior object is to demolish the house, the offence is committed in consequence of this inferior intent. So if one, with the principal purpose of robbing another, attacks him, and, to accomplish more easily the robbery, wounds him with intent to do him grievous bodily harm, the flatter intent though secondary to the former, is within the Statute on the latter subject. The same rule applies where the chief aim of the prisoner is to prevent his own lawful apprehension. If both intents existed, if was immaterial which was the principal, and which, the secondary one.” (See Criminal Law by Bishop Vol. 1, page 242).

6. The argument of counsel would have force but for the decisions hereinafter referred to. The decision of the Judicial Committee of the Privy Council in Sinnasamy Selvanayagam v. The King, 1951 A.C 83 may first be considered. In that case the accused refused to vacate rooms belonging to the Government which he and his forebears had occupied for seventy years, and he was thereupon convicted of trespass. The Magistrate found that his intention was to cause annoyance to the Government Superintendent, since that would be the natural consequence of his action. In allowing the appeal, the Privy Council said:

“Even if the appellant did anticipate that Rajapakse would be annoyed, it is perfectly clear from his evidence that his dominant intention was to remain on the estate where he and his family had lived for generations and not find himself homeless. Entry upon land, made under a bona fide claim of right, however ill-founded in law the claim maybe, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant.”

7. It would seem that the true reason why the appeal was allowed was that the appellant had a claim of right; if he had known that he had no legal right to remain on the premises, he might, it seems, have been convicted. His knowledge of the certainty of causing annoyance-might then have been regarded as equivalent to intention.

8. The Supreme Court observed in 1964-2 Cr LJ 57 : (AIR 1964 SC 986) as follows:—

“We think, with respect, that this statement of law as also the similar statements in Laxman Raghunath's case, (1902) ILR 26 Bom 558 and in Sellamuthu Servaigaran's case, (1908) ILR 35 Mad 186 are not quite accurate. The correct position in law may, in our opinion, be stated thus: In order to establish that the entry on the property was with the intent to annoy, intimidate or insult it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient, for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the parsons entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance being the dominant intention which prompted the entry.”

9. So the question to be asked and anssvered is whether the accused entered into possession of the property with the dominant intention to intimidate, insult or annoy. Counsel relied on the following observations of this Court in State of Kerala v. Koohan, 1961 Ker LT 513 and said that if the natural consequence of the act of the accused was to intimidate, insult or annoy, they lust be presumed to have that as their dominant intention.

“Now, the contention of the learned Public Prosecutor in the lower court, that the intention of the trespasser and be inferred from his acts, is in my opinion, sound ind should have been accepted by the Court. If one were of insist on direct evidence on the mental attitude of the offender, very few cases of criminal trespass will result in conviction, for the trespasser will but rarely make a melic proclamation of his intentions. It is a safe preemption that a man intends the natural consequences of his acts and if insult or annoyance will be the inevitable consequences of his acts he can rightly be presumed of intend that result.”

10. I am not sure whether the presumption, if there is one, can be of much help in a case like this.

“It is often said that a man is presumed to intend the natural consequences of his acts. This maxim, though many Judges have been had of it, contains a serious threat to any rational theory of intention. It is not true in fact that a man necessarily intends the natural consequences of his acts; and it is not true in law that he is compellingly presumed to do so. The maxim will here be discussed as a supposed rule of substantive law, leaving to for later treatment as a supposed rebuttable presumption.

Juries have sometimes been directed in terms of the maxim, and appellate pronouncements have been founded on it, as though there is a legal equivalence between a natural consequence and an intended consequence. Now, he expression ‘natural’ in law must mean probable; otherwise, ‘natural’ would be meaningless, for ‘every thing that happens, happens in the order of nature and is therefore ‘natural’. Hence the maxim is tantamount of saying that a consequence is intended though it is not desired, or even foreseen as possible or probable, provided that it was probable in fact—i.e a reasonable man would have foreseen it as probable. If this view were accepted the result would be to destroy the subjective definition of intention and to efface the line between intention and negligence. When a defendant is held guilty of causing damage by negligence, this is because a reasonable man would have foreseen the damage. Now, if a reasonable man would have foreseen it, if must be the probable consequence of the defendant's conduct, to it is the probable consequence of his conduct, the defendant, according to the maxim, is presumed to have intended it. Thus, all these cases of negligent conduct returned into cases of intentional conduct. Such a mangling of the concept of intention cannot be admitted.” (See Criminal Law by Clanville L. Williams, page 77.)

11. In 1964-2 Cri LJ 57 : (AIR 1964 S.C 986) the Supreme Court said:

“……The proposition that every person intends the natural consequences of his act, on which the learned counsel relies, is often a convenient and helpful rule to ascertain the intention of persons when doing a particular act. It is wrong however to accept this proposition as a binding rule which must prevail on all occasions and in all circumstances. The ultimate question for decision being whether an act was done with a particular intention all the circumstances including the natural consequence of the action have to be taken into consideration. It is legitimate to think also that when Section 441 speaks of entering on property ‘with intent to commit an offence or to intimidate insult; or annoy any person in possession of the property’ it speaks of the main intention in the action and not any subsidiary intention that me also be present…..”

12. Denning L.J observed in Hosegood v. Hosegood (1950) 66 TLR 735:

“When people say that a man must be taken to intend the natural consequences of his acts, they fall into error: there is no ‘must’ about it; it is only ‘may’. The presumption of intention is not a proposition of law but a proposition of ordinary good sense. It means this: that as a man is usually able to foresee what are the natural consequence of his acts, so it is, as a rule, reasonable to infer that he did foresee them and intend them. But, while that is an inference which may be drawn, it is not one which must be drawn. If on all the facts of the case it is not the correct inference, then it should not be drawn.”

13. As I have already said the decision of the Privy Council can be explained only on the basis that the accused there remained in possession under a bona fide claim of right and it was because of that they said that the dominant intention of the accused was not to intimidate, insult or annoy. In the case at hand the learned Magistrate had not considered the question whether the accused had entered into the property under a bona fide claim of right. Beyond saying that the dominant intention of the accused was not to intimidate, insult or annoy PW. 1 he has not found that the accused entered into the property under a bona fide claim of right. What the Magistrate had said is that Pw. 1's father had no claim of right after the sale. He did not say that the accused entered into the property under a bona fide claim of right.

14. Counsel for the petitioner referred to S. 52 of the I.P.C and submitted that a bona fide claim of right must have all the elements of good faith as defined in the section and that the accused cannot have such a bona fide claim of right, in view of the facts and circumstances of the case. He said that the 1st accused never got possession of the property, that Pw. 1's father and Pw. 1 were in possession and that the title of the 1st accused was extinguished by adverse possession and prescription, and that the 1st accused was warned by the police not to enter the property and that in the civil suit, the status quo was ordered to be maintained. I do not propose to express any opinion on this matter. As the Court below has not considered the question of the bona fide claim of right of the accused, and as the finding that the accused entered into the property not with the dominant intention to intimidate, insult or annoy has no intrinsic foundation unless based upon a bona fide claim of right. I would direct the Court below to decide that question and dispose of the same. I set aside the order under revision and direct a re-trial.

H.K/S.S.G/D.V.C

15. Order accordingly.