T.H Bird v. King-Emperor

James, J.:— The Tata Iron and Steel Company of Jamshedpur leased certain land in 1920 to a cultivator for one year. He and his soil after him retained possession from 1920 till 1933. For ten years of this period he had held without any written lease, though it is said that he held from year to year, until finally in 1932 there was a written lease for one year when the son Purusottam executed a kabuliyat stipulating that he would hold the land until the 31st of March, 1933. In December of 1932 he was given notice to quit on the expiry of his lease; but he remained in possession and declined to leave the land. On the 20th of April, 1933, Sirish Chandra Chandra on behalf of the Steel Company remonstrated with Purusottam who was cultivating the land; but Purusottam took no notice of the remonstrance. Later in the day, a party consisting of the four petitioners now before the Court came to the land and ordered Purusottam to leave it. He refused to leave and he was removed by force, being actually assaulted, though not grievously, while his ploughs and cattle were taken away from him. Purusottam prosecuted the four petitioners in the court of the Sub-divisional Magistrate of Dhalbhum who convicted them of offences punishable under sections 447 and 352 of the Indian Penal Code. He sentenced Mr. Bird and Mr. Khurodi to a fine of Rs. 100 each and the other two petitioners each to a fine of Rs. 20 under-section 447 passing no separate sentence under section 352. The learned Magistrate found that Purusottam was in possession of the land. He discussed the question of whether he had acquired occupancy right in the land, and was of opinion on the whole that he was an occupancy raiyat. He found that force had been used by the party sufficient to dispossess the complainant in furtherance of a common intention to evict him. His finding on the question of intention might have been more clearly expressed; but the case was not one in which a formal charge had to be framed and the findings as appears from the discussion of the case by the Magistrate appear to be that the party of the accused, believing that they had a right to do so, entered on the land which was in the peaceable and lawful possession of the complainant, and that being there they evicted him by force, that is to say, by the exercise of intimidation. The decision was affirmed on appeal by the Sessions Judge who affirmed the finding that the complainant was in possession of the land, expressing the opinion that he had acquired occupancy right in it. He found that the petitioners came to the place in order to oust the complainant forcibly and by intimidation; that their force was not excessive was used demonstration to intimidate the complainant and to compel him to give up the land. He accordingly dismissed the appeal.

Mr. P.R Das on behalf of the petitioners argues in the first place that the complainant could not properly be deemed to be in possession of the land, since his lease had expired; and that in any event the landlord should be as well regarded as being in possession as the tenant. He further argues that forcible eviction of a tenant made by a landlord in exercise of a bona fide claim of right cannot be regarded as an offence coming within the definition of criminal trespass contained in section 441 of the Indian Penal Code. He argues that the intention of the petitioners was merely to eject the complainant, and that they cannot be said to have entered on the land or remained on it with the intention to commit an offence or to intimidate, insult or annoy him.

Mr. Das has discussed a number of decisions before us which may be mentioned in the order of their date. The first in point of time is that of Emperor v. Raghunath…Opposite Party.. The facts and the effect of the decision are summed up in the headnote:

“The accused no. 1 who held a decree against a judgment-debtor went with his son, accused no. 2, and a Civil Court bailiff to execute a warrant. Finding the door of the judgment-debtor's house shut, they entered his compound by passing through the complainant's house without his consent and notwithstanding his protest.

Held, that the act of the accused amounted to criminal trespass, for when they trespassed on the complainant's house notwithstanding his protest, they must, as reasonable men, have known that they, would annoy him.

Mr. Das criticises the reasons given by the learned Judges for their decision on the ground that they rely upon English cases, deducing a rule of law that a person must be presumed to intend the consequences of his action. Mr. Das points out that the framers of the Indian Penal Code, expressly repudiated, this so-called rule as a legal fiction and that in Chapter XVI, of the Code, and wherever mere knowledge of the probable consequences of the action is to be held to involve criminal liability they use the word ‘voluntarily’, which is specially defined in section 39.

The learned Judges refer to a case of 1803 [Rex v. Dixon] tried by Lord Ellenborough, wherein he remarked, when the correctness of the conviction was discussed by the Judges, that the intention to cause the probable consequence of an action was an inference of law resulting from the doing of the act. With due respect to the Judges who decided Lakshman Raghunath's case, we think that Mr. Das's criticism of the manner in which they discussed it is justified. Where a specific intent is laid as a necessary ingredient in a charge under the Indian Penal Code, the question of volition enters into the matter; and the specific intent becomes a question of fact: it must not be treated as a mere presumption of law justified by what Lord Ellenborough may have said in 1803, or Mr. Justice Blackburn in 1868.

In the case of Jurakhan Singh v. King-Emperor a person convicted of criminal trespass was acquitted on the ground that the magistrate found that he acted on a belief of his own right; but there is no indication in the report of what were the facts of the case and it was observed by the learned Judges that there was no finding in the magistrate's judgment of any of the facts constituting criminal trespass.

The next case is that of Reajaddin Molla v. King-Emperor decided by Holmwood and Sharfuddin, JJ. in 1914. In that case the accused persons interfered with the cultivation of land over which they had grazing rights; and the Judges held that they should not be convicted of criminal trespass, merely because they protested against the land being, ploughed up. It is not clear what was the intention found by the trial court to bring the petitioners within the definition of section 441 of the Indian Penal Code, whether it was an intention to annoy or any other intention. The point was not discussed by the Judges.

In 1916 the case of Akshoy Singh v. Rameswar Bagdi came before the Calcutta High Court. It was alleged by the complainant in that case that the accused had put up a fence on his land and that, they had done so with a view to insult and annoy him. The accused persons were charged under sections 447 and 504 of the Indian Penal Code, imputing an intent to intimidate the complainant. The magistrate found that the charge of intimidation was not established; but finding that the accused had encroached on the complainant's land he convicted them of criminal trespass. The learned Judges observed: “It is well-settled that if a person enters on land in the possession of another in the exercise of a bona fide claim of right without intention to intimidate insult, or annoy the person in possession or to commit an offence, then, although he may have no right to the land, he cannot be convicted of criminal trespass”. As I have remarked, in that case the intent which was imputed was not established.

The next case in point of time is one of some importance, Vallappa v. Bheema Row, which was decided in 1917 by a Special Bench of three Judges including Sir John Wallis, the Chief Justice. The son of the accused had stolen some jewels belonging to his father to whom he said that he had given them to the Headmaster of his school. Thereupon the accused with some friends went to the Headmaster's house, and in spite of his protests insisted upon searching his house where they found nothing. The Headmaster laid a complaint regarding the trespass. The trial magistrate convicted the accused of an offence punishable under section 448 of the Indian Penal Code finding that they knew that the consequences of their action would be to annoy or insult the complainant. On appeal the District Magistrate set aside the conviction on the ground that the primary intention of the accused was not to insult or annoy the complainant. The Sessions Judge of Bellary referred the case for the orders of the High Court under section 438 of the Criminal Procedure Code on the ground that the accused must have known that they would annoy the complainant and must be deemed to have intended the ordinary consequences of their act. It was held that the specific intent was not proved and the learned Judges pointed out that when in 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. In arriving at this conclusion they discussed the meaning of the word intent as used by Macaulay and the other Law Commissioners in drafting the Penal Code, taking account of the fact that they regarded the maxim that everyone must be taken to intend the natural consequences of his acts fiction which should not be recognised in the Penal Code. The headnote of the case describes Mr. Justice Ayling as differing from the other two Judges, but there is no essential difference in the view taken by Mr. Justice Ayling. The Chief Justice had observed that it must be a question of fact in each case whether the intent was to annoy or not and Mr. Justice Ayling merely discussed the question of to what extent intent could be inferred from a certainty of knowledge that a particular result would be caused. I shall return to the discussion of this case later.

The next case in point of time cited by Mr. Das is that of Bhagwan Din v. Emperor. A zamindar obtained formal delivery of possession from the revenue court in execution of a decree for the ejectment of certain tenants. The tenants appealed from the decree and while the appeal was pending, they entered on the land and tried to plough it. They were prosecuted and convicted under section 447 of the Indian Penal Code. Before the criminal case was finally decided the decree in favour of the zamindar had been set aside by the appellate court on the ground that one of the accused was an occupancy tenant. Banarji, J. held that the conviction must be set aside because it could not be said that the persons who were the tenants of the land and who as the event proved were not liable to ejectment intended to commit an offence, or to intimidate, insult or annoy the zamindar when they entered on the land which formed their occupancy holding for the purpose of ploughing and cultivating it. It is not clear whether any such specific intent was found by the trial court and there is nothing in the judgment to indicate that the tenants actually did intimidate or insult the zamindar or that they committed any criminal offence when they were on the fend.

In 1923 the question of whether a person entitled to possession was entitled to assert that possession by force was discussed by a Division Bench of this Court in Gita Prasad Singh v. Emperor. A tenant whose lease had expired alleged that while he was engaged in cultivating the land he had been attacked and beaten by Gita Prasad and a number of other men. Gita Prasad was convicted of rioting and causing hurt. The late Sir B.K Mullick in discussing this case entered into the question of title and found that the cultivator had no title after the expiry of his first lease, and that a second lease which he had put forward was a forgery. Mr. Das lays some stress upon the remark of Sir B.K Mullick, that “a tenant whose right is determined has no right to remain forcibly upon the land and say to his landlord that he will cultivate that land till such time as he is evicted by a Civil Court. From the moment the title of the tenant expires, the landlord is in possession, in the eye of the law, and provided that he does not use undue force, he is entitled to go upon the land and if necessary to use force for the purpose of asserting and maintaining his possession”. In this case the Judges found that the facts were not in accordance with the allegations of the prosecution. Actually the landlord's men had been cultivating the land when they were attacked by the tenant; and indeed they found also that the tenant was not in actual physical possession on the day of this occurrence. Thus the decision of the case did not rest upon the proposition that the term ‘possession’ in the Indian Penal Code is equivalent to title, and that the person who has title is to be presumed to be in possession whether he has any actual possession or not.

The construction of section 441 of the Indian Penal Code was considered by Mr. Justice Ross of this High Court in 1924 in the case of Debi Dayal v. Emperor. In that case there was a dispute regarding possession of a house and forcible entry was made by the claimant who assaulted the person who was in possession of the house. There was a conviction under sections 448 and 352 of the Indian Penal Code. A formal charge was framed under section 448, but no specific intent was laid in the charge. Mr. Justice Ross observed “that certain, consequences followed upon her entry into the house is no ground for holding that the intent of the accused was such as is defined in section 441. Musammat Beradri was assaulted in the course of the occurrence, but it cannot be reasonably supposed that the intent of the petitioners was to assault Musammat Beradri. The finding of the courts below that the entry was made by Musammat Ramratia with a view to strengthen her case in the Land Registration Court is, in my opinion, fatal to a conviction under section 448, where the claim was a bona fide one”. The conviction for assault was affirmed, so that it was found that the assault did take place and was not justified. It is not clear that the assault was committed to facilitate entry into the house or whether it was incidental to a subsequent occurrence. If the assault was made to facilitate enter the remark of the learned Judge, that the finding that the entry was made with a view to strengthen her case is fatal to a conviction under section 448, would come perilously near to saying that the petitioners, because they had a motive for entertaining an intention, could not be held to have entertained it; but as I have said, the point is not clear.

In Emperor v. Moti Lal a claimant to possession of a shop took advantage of its having been left empty to enter it and lock it up. He was convicted under section 448 of the Indian Penal Code on the ground that his intention must obviously have been to annoy the rightful owner The learned. Judges pointed out that a conviction under section 448 cannot follow merely because one can pronounce with certainty that the accused must have known that his act would as one of its inevitable incidents cause annoyance.

In 1928 in Emperor v. Mathura Rai Mr. Justice Dalal pointed out that one of the intents specified by section 441 is necessary for a conviction under section 447. In that case the intentions alleged were to commit the offence of mischief and to intimidate, both of which were disbelieved by the trial court: but the appellate court had supported the conviction on the ground that the intention of the trespassers must have been to annoy the complainant. Mr. Justice Dalal pointed out that this particular intent had never at any fame been alleged and the complainant had never asserted that he had been insulted or annoyed and so, as the intention as originally charged had not been proved, the petitioners were acquitted.

The next case in point of time referred to by; Mr. Das is that of Har Prasad Singh… v. Hulsan Chamar…Opposite Party.. A raiyat in Chota Nagpur had surrendered his holding to he landlord who had thereupon settled the land with two other persons. The new tenants accompanied by their landlord came to the land and ploughed it up although it had already been sown by an under-raiyat. They were convicted of criminal trespass and mischief but they were acquitted in revision by the late Sir Jwala Prasad, who held that the action of the landlord was in exercise of a bona fide claim of right, and so he could not be convicted of criminal trespass or mischief. Sir Jwala Prasad based his decision largely on the unprotected position of an under-raiyat in Chota. Nagpur for whose ejectment no notice or any formality, as he says, is required.

In Ramzan Mistry v. Emperor Ramzan had purchased a house but the validity of the sale was disputed by the person in possession of the house, and Ramzan endeavoured to take forcible possession. The appears that there was no finding of any intent to intimidate, insult or annoy and Mr. Justice Wort in dealing with the case definitely says that there was no question here of intimidation. An attempt was made to support the conviction under section 448 on the ground that the complainant was insulted and annoyed; but Mr. Justice Wort pointed out that the actual intention must be shown and that the mere fact that the act was likely to cause annoyance was not sufficient to bring it within the definition of criminal trespass contained in section 441 of the Indian Penal Code.

Another view of this matter was taken by Mr. Justice Bhide of the Lahore High Court in Preman v. The Crown. The learned Judge followed the rule that when a person-claiming a title to property whether his title be good or bad enters without any legal justification upon the property in the established possession of another, he must be inferred to have had an intention to annoy the person in possession within the meaning of section 441 of the Indian Penal Code even though he had no primary desire to annoy and his only object was to obtain possession for himself. This rule was laid down in 1906 by a majority of the Judges of the Full Bench of the Punjab Chief Court; but, Mr. Das remarks, it would probably not be considered to be of any binding effect outside the Punjab. Mr. Das criticises the form in which the rule is stated, pointing out that by saying that in certain circumstances the person must be inferred to have the intention to annoy, the learned Judges of the Chief Court treated the inference of intention as a presumption of law rather than as a question of fact.

We may consider first the question of whether Purusottam should be held to have been in possession of the land at the time when this assault occurred. Mr. Das lays stress upon the remarks of Sir B.K Mullick in Gita Prasad Singh v. King Emperor to which reference has been made above, that from the moment the title of the tenant expires the landlord as in possession in the eye of the law. The learned Assistant Government Advocate argues that this remark is in the nature of obiter dictum; but whether it is to be regarded as obiter dictum, or not it states in our opinion in too unqualified a manner the ordinary legal presumption that possession follows title. Indeed, the presumption is described in such a way as to suggest that proof of title affords conclusive proof of possession; and we may be sure that if the decision of the appeal had turned on this point, this very summary and inadequate definition of possession would have been qualified by very many reservations Possession is a question of fact, not dependent on title; and the matter is not disposed of by demonstrating that the person in possession has no subsisting title, if his original entry was, lawful, it is not necessary here to discuss the meaning the word possession as used in section 441 of the Criminal Procedure Code, since in the present case there is a definite finding of both the courts that Purusottam was in possession claiming with some appearance of right to hold as an occupancy raiyat. The question of whether his claim to enjoy occupancy right was valid or not was not one to be decided by the criminal courts, though some discussion of the matter was forced upon them when it was suggested that Purusottam had left the land, and that his claim to occupancy right was one which could have no foundation. The lower appellate court came to the conclusion that he probably was an occupancy raiyat; but however that may be, there can be no doubt that the finding of fact that Purusottam was in possession cannot be assailed in this Court on any ground of law.

Thus Purusottam was in possession; and the petitioners entered on the land in order to evict him. The Sub-divisional Magistrate found that they intended to dispossess the complainant by means of a demonstration, by which he means, as will be seen from his statement of the case earlier in his judgment, that the demonstration of the accused was intended to intimidate the complainant into abandoning possession of the land. The Sessions Judge found that the petitioners came to the place to oust the complainant forcibly and by intimidation, that is to say, the petitioners intended to enter on the land which was in the possession of the complainant in such a manner as to intimidate him; and they intended by intimidating him to compel him to leave the land.

Mr. Das argues that the word ‘intent’ in section 441 of the Indian Penal Code must he regarded a's limited to the ultimate object aimed at by the action charged. He cites the following passage from the judgment in Vullappa v. Bheema Row:

“In his History of the Criminal Law, volume 2, Page 100, Sir James Stephen gives the following definition of intention:—

‘The direction of conduct towards the object chosen is called the intention or aim (the metaphor involved in the word is obviously taken from the 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 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, rear or supposed of some ulterior intention. For instance it will often be argued that a person ought to be acquitted of wounding a policeman with intent to do him grievous bodily harm, because his intention was not to hurt the policeman 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”.

This account of the matter given by high judicial authority, does on the face of it appear to justify the view that it is arguable, where a specific intent is charged, that the intent to be considered is the ultimate aim of the person charged, rather than any intent to commit the action by which that, aim is to be accomplished. As an account of Stephen's definition of intention, the passage is incomplete, as will presently appear.

The difficulty which Sir John Wallis mentions does not appear to have been completely solved merely making it a specific statutory offence to shoot, cut, stab, or wound in order to obstruct or resist lawful arrest, as was done in 1803 (43 Geo. III. 58). Juries were still apt to find an intent other than that stated in the indictment, as in Duffin's case in 1818. The difficulty really arose from the extreme severity of the English Criminal Law in those days, slightly tempered by extreme technicality, so that juries after the courses open to them hajj been duly explained by the Judge, (who probably felt much as they did), would return a verdict which did not offend their consciences by being a false verdict, but which ensured the acquittal of the accused. The very simple interpretation of the word intention, adopted by. Lord Ellenborough in Rex v. Dixon in 1803, was not always applied by the Judges, and when they did enter into the question of intention and motive, into this question of whether a man who commits a certain act, intends to commit the act, or merely intends to gain the consequences of it, there was still some uncertainty and confusion in their minds [as indeed appears from the charge to the Jury in Duffin's case]. In 1825, William Gillow, a poacher who in order to avoid arrest, had shot a keeper, was tried at the Lancaster Assizes, on an indictment in which the intent laid was to do grievous bodily harm. The jury found that the prisoner's motive was to prevent his lawful apprehension, but that in order to effect that purpose he had also the intention of doing to the keeper grievous bodily harm. Mr. Justice Bayley submitted the case to the consideration of the Judges, who held that if both intents existed, it was immaterial which was the principal and which was the subordinate one—[Rex v. William Gillow].

Thus as I have said it is not quite correct to say that the difficulty was solved by any act of the legislature in England, because the legislature never defined intention; and even when the intent to avoid apprehension was made, as Sir John Wallis says, the gist of the offence, the difficulty, such as it was, remained, so long as confused ideas prevailed on the subject of intention and motive.

I have remarked above that the quotation from Stephen in Vulappa v. Bheema Row is incomplete; it stops short in the middle of a sentence, which is as follows:—

“This particular argument was so common that to inflict grievous bodily harm with intent to resist lawful apprehension is now a specific statutory offence; but, if the difference between motive and intention were properly understood, it would be seen that when a man stabs a policeman in order to escape, the wish to resist lawful apprehension is the motive, and stabbing the policeman the intention and nothing can be more illogical than to argue that a man did not entertain a given intention because he had a motive for entertaining it. The supposition that the presence of an ulterior intention takes away the primary immediate intention is a fallacy of the same sort.”

Stephen's reference to archery has been misunderstood, as if the metaphor, which (whether the derivation is correct or not), makes intention the act of aiming at a mark, identified the act of aiming with the target itself. Intention thus regarded is not the target aimed at; but the aiming at it; it has reference rather to the means by which the end is to be attained than to the ultimate end itself. Stephen defines intention at page 100 of the same volume: “It is the result of deliberation upon motives; and is the object aimed at by the action caused or accompanied by the act of volition”. The Oxford Dictionary accepts as a definition: “Intention, as distinguished from motive, on the one side, and the action itself on the other may be deemed as the volition immediately preceding the overt act”, a definition which may be useful as excluding another fallacy, of which we find traces in the discussions, that an intention to intimidate, insult or an now must be to use the words of Holt, “a rancour of mind lodged in the person for some considerable time before the commission of the fact”, which is a mistake. We may exclude the so-called rule that a person is to be presumed intend the natural consequences of his action, and we may require for intention some definite act of volition; but we must not confuse intention and motive, or say that a person, because he has an ulterior motive, does not intend to do what he actually does for the attainment of that ulterior end.

The learned Sessions Judge has found that the petitioners came to oust the complainant forcibly and by intimidation. That is to say, they entered upon the land with intent to intimidate the complainant, and thereby to compel him to give up possession. This is one of the intents specified in section 441, and the conviction must be supported. Mr. Das suggests that the word ‘intimidate’ in section 441 should be held to mean merely to utter threats, and that it does not apply to the use of actual force unaccompanied by threats, because the definition of criminal intimidation in section 503 is limited to threats. The words used in section 441 are “with intent to intimidate”; and the word “intimidate” must be understood in its ordinary sense “to overawe, to put in fear, by a show of force or threats or violence”. The sentences are adequate, but not severe; and this application must be dismissed.

Khaja Mohamad Noor, J.:— I entirely agree. Entry into or upon a property in possession of another is an offence under the Indian Penal Code provided that the entry be with certain intentions specified in the Code. The object of the law is to protect a man's possession over his property against encroachment by strangers with those intentions. It is to be noted that the Code protects actual possession and not title without such possession. It may be that the possession of a property is with one and the title with another. The man in possession is entitled to the protection of the criminal courts in retaining that possession unless he is evicted in due course of law. Criminal law does not allow a man having a title in a property or one who believes that he has such a title to deprive the man possession of his possession against his wish. Every trespass is not criminal, nor every criminal trespass a civil wrong. For instance if a man having a title to a property in possession of another enters into or upon that property with one of the intentions specified in the Code, though he is liable to be punished, he may not be liable in a civil action. The Code speaks of possession and not of title. It may be in certain cases that the man with whom the title of the property is vested enters upon that property only with the intention of taking possession of it. So far he may be committing no offence. But if he has the intention of taking possession by intimidating the man in possession he is amenable to punishment. I agree with the contention of Mr. Das that what is required for a conviction for criminal trespass is a proof and finding of intention of doing one of the acts specified in section 441 of the Indian Penal Code and not merely of knowledge that those consequences will result. I also agree with him that where the Indian Penal Code wanted to make the criminality depend upon the knowledge of the doer of an act, it has specifically stated so. In section 441 it is not the knowledge of the consequence which is the ingredient of the offence but the intention of doing certain acts. Intention is a question of fact and has to be determined in each particular case on the facts of that case. It being a state of mind has to be inferred from surrounding circumstances. Intention may be presumed as a fact and the Court may apply the rule of evidence and presume the existence of a fact which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in their relation to the facts of the case. In drawing the inference the Court has to take into consideration the nature of the act and the effect it produced on the mind of the party in possession. The Court cannot as matter of law presume intention from the natural consequence of the act. This is a fiction of the English law and is not the Indian law of trespass. It is always open to the court of fact to infer intention from the result coupled with other facts of the case and surrounding circumstances. The apparent conflict in various decisions can in most cases be explained if the observations in a particular case be read along with the facts of that case. The difference in findings is due to the fact that while in one the Court on the materials before it came to the conclusion that the intention was proved, in the other it could not come to that conclusion. It cannot be said in every case that a man must be taken to have intended what follows result of his act. I may refer to three cases in which the facts were almost similar. The entry of the offender was with intent to have connection with a woman of age, the connection itself not being an offence. In the case of Koilash Chandra Chakrabarty v. The Queen-Empress the accused was found in a room occupied by two widows. It was obvious that there was no intention to commit theft. The accused pleaded alibi which was disbelieved. The Court came to the conclusion that it must be held that he entered the house with one of the intentions specified in the Penal Code. In a similar case, Premanundo Saha v. Brindabun Chung the accused was found in the house when the women were in bed. Here again, the facts led to the conclusion that the intention of the accused was to have connection with some one of them. The Court convicted him and held that he must have had the intention of intrusion on privacy of the women—an offence punishable under section 509, Indian Penal Code. It is obvious that in these two cases the ultimate object of the accused was not to insult, annoy or to intrude upon the privacy of the women. It was to have connection with a woman of the house. But in both the cases the Court on materials before it was able to come to the conclusion that his intention was one of those specified in section 441. In two Madras cases, viz., in Queen-Empress v. Rayapadayachi which was affirmed by the Full Bench in the case referred to by my learned brother, S. Vullappa v. S. Bheema Row, a different view was taken. In, these two Madras cases the Court, on the materials before it could not find that the accused had any one of the intentions specified in the Code. In my opinion in all these cases the questions decided were not so much questions of law as questions of fact, viz., whether or not in that particular case the intention of the accused to commit acts specified in section 441 had been proved. The only law laid down in all these cases is that the intention must be proved and found as a matter of fact and the Madras cases laid down that it cannot be presumed as a matter of law from the consequences.

I need not set out in detail the distinction between intention and motive. It is obvious. For instance if a man's intention is to pick a man's pocket, and in order to enable him to do so he gives him a lathi blow. Now, it is obvious that though the intention was theft, it cannot possibly be disputed that the act of giving lathi blow was also intentional, that is to say, he did intend to cause hurt also. Again, if a man enters into a property in possession of another with the intention of taking possession of it, he may or may not have also the intention, of doing any one of the a acts specified in section 441 of the Indian Penal Code for the purpose of obtaining that possession. If he has no such intention the entry will not be criminal trespass; but if he has the intention of taking possession by means of force, annoyance or intimidation, he is guilty of criminal trespass. Whether he had or had not those intentions is, as I have said, a question of fact. A bona fide claim over a disputed property has been held to be sufficient to take out the case from the purview of criminal trespass. Bona fide claim eliminates any intention of intimidation, insult or annoyance etc. Here again the question of bona fides is to be decided as a question of fact on the facts of a particular case. Simply a claim by the accused will not in my opinion be sufficient. In the case of Bheema Row, dealt with in detail by my learned brother, and as pointed out by him, there was no finding that the accused had caused intimidation, insult or annoyance to the schoolmaster whose house he had searched. In the case before us the accused fully knew that the complainant was not willing to give up his possession. He was insisting to continue in possession claiming that he had acquired a right of occupancy. The accused went to take possession of the property, an irresistible inference is that they went there with the intention of intimidating the man in possession in order to achieve the object of taking possession of the property and I agree with my learned brother that in the circumstance's they have committed the offence of criminal trespass. The ultimate object may be the taking of possession of the property which by itself is no offence, but at the same time there was also the intention of committing intimidation in order to achieve the object of taking possession and in fact the complainant was intimidated and force was used to him. I agree that this application be rejected. I however express no opinion whether or not the complainant was acquired a right of occupancy in the land. The Courts below were invited to come to a finding on that point and they have done so. I express no opinion whether the finding is correct or otherwise. The learned Magistrate was not quite sure of his grounds and some of the reasons of the learned Sessions Judge are in my opinion open to criticism. The status of the complainant is immaterial in this case. It is enough that he was in peaceful possession on the date of occurrence, and when called upon to vacate he declined to do so claiming a right to continue in possession. Service of notice to quit or even a surreptitious ploughing on behalf of the company cannot amount to dispossession. Under these circumstances I do not think the accused can claim that they were acting in a bona fide belief that they had a right to go and take possession of the property.

Rule discharged.