1. The Petitioner has been convicted by the Additional Presidency Magistrate, Calcutta, of having committed house trespass, an offence punishable under sec. 448 of the Indian Penal Code and sentenced to pay a fine of Rs. 50 in default to undergo rigorous imprisonment for one month.
2. The case for the prosecution is as follows:— The complainant is a tenant under the accused with respect to certain premises No. 87, Pataldanga Street. He left the premises temporarily after the communal disturbances of August, 1946. He came back after some months, but further disturbances taking place in May, 1947, he again shifted his residence to another place but continued to the aforesaid premises as an office. On the 2nd October, 1947, the accused broke open the lock and took possession of the premises. It is not the case for the prosecution that at the time of the alleged unlawful entry of the accused any one was there or that any one protested. Evidence was given on behalf of the prosecution to show that the accused had already taken proceedings in the Rent Controller's Court and other Courts for the ejectment of the complainant and that these proceedings were pending and it was argued that in spite of the pendency of these proceedings he took forcible possession of the premises without terminating the tenancy. This in short is the case for the prosecution.
3. The case made out in the petition of complaint that the premises were used as the office of the complainant till the time of dispossession has been disproved by the prosecution witnesses themselves. Prosecution witness No. 2, Chandra Kanta Sen and prosecution witness No. 5, Birendra Nath Naskar, gave evidence to the effect that the house was lying deserted and vacant on the 2nd of October, 1947. The complainant's own son says in cross-examination that they left the house on the 1st of September and there was no one in occupation of the house since then. It is quite clear, therefore, that at the time of the alleged trespass the house was deserted and unoccupied.
4. The point for determination is whether in these circumstances the Petitioner can be found guilty of house trespass. In order to determine this point it would be best to refer to the relevant sections of the Indian Penal Code. In order to constitute this offence the accused must enter into property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. It is clear from the wording of the section that there can be no criminal trespass unlesss the “intent” specified in the section is present. The phrase “any person in possession of such property” is also to be remembered. The intent to annoy and intimidate must be not with respect to any and every person connected with the property but with respect to any person in actual possession of such property. A person in constructive possession is not contemplated by the section.
5. Now, house trespass is defined in sec. 442 of the Indian Penal Code which says that whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, or any building used as a place for worship or as a place for the custody of property is said to commit house trespass. It is quite clear from this section that the mere trespassing into the house of another does not constitute house trespass within the meaning of sec. 442 of the Indian Penal Code. The criminal intention and other ingredients specified in sec. 441 of the said Code defining criminal trespass must be present in order to constitute the offence of house trespass. In short, house trespass means criminal trespass in respect of a house. These are the sections which need be referred to. The question is whether in view of the provisions of these sections it can be said that the Petitioner committed house trespass. Taking all the allegations of the prosecution to be true, it may be said that the Petitioner took unlawful possession of the property. The mere taking of unlawful possession will not amount to either criminal trespass or house trespass. There is no evidence that the Petitioner intended to commit any offence. An unlawful act is not necessarily an offence. The penal law deals with offences and an unlawful act which does not amount to an offence is a matter which has to be investigated by a Civil Court.
6. Next, there is no evidence to show that the Petitioner had any intent to annoy or intimidate anybody. It may be that his conduct would result in annoyance, but the words used in the section are “intent to annoy, etc.” Had the words been “with the knowledge that his act annoyed, etc.,” the position would have been different. Intent is something different from mere knowledge. This distinction has not often been borne in mind; but throughout the Code a distinction is made between intention and knowledge. Further, as the house was deserted it cannot be said that he intended to annoy a person in possession of the house. There was really no one in possession. The learned Magistrate has entirely misconceived the law. He makes the following observation:—
“Of course some of the P. Ws. have said that the house was vacant or deserted but that does not matter. Admittedly the complainant had taken possession only on 2nd October, 1947, and that with police help. They were not in possession before that. Otherwise why they should take the help of Court.” Thus the complainant had been in possession of the house on the day of occurrence. As I have pointed out above, mere constructive possession is not sufficient. Then the learned Magistrate says: “But the charge clearly states that the accused intended to dispossess the complainant from his lawful possession. This was certainly for causing annoyance to the complainant.” If this proposition of law were correct, then every act of civil trespass would amount to a criminal offence. That is certainly not the law. There is a decision of the Bombay High Court [Emperor v. Lakshman Raghunath(1)] which says that intention to annoy is not identical with wish or desire to annoy and that if annoyance is the natural consequence of the act and if it is known to the person who does the act that such is the natural consequence, then there is an intent to annoy. I respectfully disagree from this view. It is contrary to the view taken by the other High Courts. In this connection I would refer to the case of S. Vullappa v. S. Bheema Row(2) where it was said that trespass is an offence under sec. 441 of the Indian Penal Code only if it is committed with one of the intents specified in the section and proof that a trespass committed with some other object was known to the accused to be likely or certain to cause insult or annoyance is insufficient to sustain a conviction under sec. 448 of the Indian Penal Code. This was the decision of the Full Bench and their Lordships pointed out the distinction between intent and knowledge. In this connection I would draw the learned Magistrate's attention to the observations of the learned Chief Justice at page 162 of the said report. The view I have taken finds full support from this decision. The Allahabad High Court in the case of Emperor v. Chhote Lal*(3) took the same view. There a person was found in the house of another in the circumstances which would prima facie indicate that the offence of criminal trespass had been committed and set up the defence that he did not enter the house with any of the intents referred to in the section, but in pursuance of an intrigue with a female living there, the Court observed that in such circumstances it was the duty of the trying Court to give the accused an opportunity of substantiating such defence and that if the accused succeeded in showing that his presence in the house was in consequence of an invitation by a female living in the house with whom he was carrying on an intrigue, then he cannot be convicted of criminal trespass. His Lordship went on to remark that if it is shown that the person in possession of the house has expressly prohibited the accused from coming to the house an intent to annoy may be legitimately inferred, I also find support of the view which I have taken in the following case:— In the matter of the petition of Chunder Narain v. J.G Farquharson(4). In the case of Emperor v. Jangi Singh(5) the Allahabad High Court took the same view. The case is almost on all fours with the present one. A zemindar took possession of certain property of his tenant alleging that the land had been abandoned. He was convicted of criminal trespass. Their Lordships made the following observation:— “His intention possibly was to obtain possession contrary to law, but this of itself would not constitute criminal trespass. Proof of an intention to commit an offence or to intimidate, insult or annoy was necessary. There was no evidence of any such intention or from which such an intention might be reasonably inferred.” A very recent decision of the Chief Justice of this Court in the case of Nisamuddin v. Jinnat Hossain(6) establishes the same principle. The facts are distinguishable, but his Lordship the Chief Justice relied in coming to his decision upon the case of Emperor v. Jangi Singh already referred to and adopted the view therein taken.
7. I hold that the criminal intent specified in sec 441 of the Indian Penal Code not having been established the charge of the house trespass must fail. I accordingly se aside the order of conviction and sentence and acquit the accused. The fine, if paid shall be refunded. The Rule is made absolute.