Abdur Rahim, J. — The Second accused's son, a young boy, having stolen some jewels belonging to his father told him that he had given them to the Head Master of his school, the complainant, who kept them in a box in his house. Thereupon the second accused with his friends the other four accused in the case went into the complainant's house, and in spite of the latter's protest and remonstrances insisted on searching, and did in fact search, the house. But nothing was found. The complainant naturally felt insulted and annoyed at the high-handed canduct of the accused and lodged a complaint before the Magistrate. The trial Magistrate found that the accused knew that the consequences of their action would be to annoy or insult the complainant. The Appellate Magistrate being of opinion that that finding was not sufficient to bring the case within Sect. 448, Indian Penal Code, as the primary intention of the accused was not to insult or annoy the complainant, set aside the conviction and sentence. The Sessions Judge wants us to revise the case for he says “the accused pushed their way into the complainant's house notwithstanding his remonstrances and must have known that they were annoying the complainant by so doing and consequently must be deemed to have intended the ordinary consequences of their act.”
The finding to my mind amount to this: the accused went into the complainant's house with the intent to search for the jewels and they must be taken to have known that the search would annoy the complainant. Is that sufficient to make out a case under Sect. 441, Indian Penal Code? I think not. The accused when insisting on searching the house had a known intent and that was to recover the jewels. It may be that at the same time they did not mind or care that their act would annoy the complainant; but they certainly did not enter into the complainant's house or remain there with the object of annoying the complainant. If it was found or could fairly be inferreed that the accused had in addition to their intention to recover the jewels a further intent, namely, to insult or annoy the complainant, Sect. 441, Indian Penal Code, would apply (see the criticism of 6 Madras High Court Rulings 25 in Sects. 577 and 578 of Mayne's Criminal Law). But that is not the case here. The framers of the Indian Penal Code have throughout borne in mind the distinction between the ‘intention’ or ‘intent,’ of a person and his knowledge that a certain result is likely to follow from his act; see for instance Sects. 295, 299 and 304. There is a conflict of authority on the question but the preponderance of authority seems to be in support of the view I have suggested: Vide I Weir (4th Edition), pages 518 and 524, In the matter of Jotharam Davay(1), Queen-Empress v. Rayapadayachi(2) and Manikka Veera Raghava Chariar v. Emperor opinion of Sankaran Nair, J., in Sellamuthu Servaigaran v. Pallamuthu Karuppan(4), a decision of myself sitting alone in Chinna Krishna Reddi v. Marri Poliah(5), Chunder Ndrain's case(6), Chandi Pershad v. Evans(7), In the matter of the petition of Gobind Prasad(8), and Emperor v. Gaya Bhar(9), while a different view has been expressed by Benson, J., in Sellanuthu Servaigaran v. Pallamuthu Karuppan followed by Sadasiva Aiyar, J., in Criminal Law Review, page 196; and also Emperor v. Lakshman(10). I would therefore refer the following question to the Full Bench:—
“If a person enters into property in possession of another or remains there with an intent other than to intimidate, insult or annoy him or to commit any offence, but with the knowledge that his act is likely or certain to cause annoyance or insalt to the person in possession, is he guity of an offence under Sect. 448 of the Indian Penal Code?”
Oldfield, J.—I take the facts as stated by my learned brother, that accused entered and remained on complainant's premises with the primary intention to recover their property, which they wrongly thought was there, and with knowledge of the probability, so strong that according to ordinary standards it amounted to certainty, that their conduct would cause annoyance. The First Class Deputy Magistrate has held and it is argued here that no offence was committed because their primary intetion was to recover their property.
This conclusion was based on Queen-Empress v. Rayapadayachi. But it involves the further assumption, which we have been asked explicitly to make, that Sect. 441, Indian Penal Code, is not worded so as to include an act done with knowledge of the probability of any particular consequence and that such knowledge, whatever the degree of probability in question, is not to be taken into account in deciding whether an offence has been committed. My learned brother has referred to authorities as justifying this assumption. But of the cases from the authorized reports, with which alone I feel bound to deal, some do not, with all respect, do so. In Jotharam Davay's case, and Chandi Pershad v. Evans, the accused were doing what was and what they believed in good faith to be a lawful thing in a lawful way and in the absence of any finding of an intent to annoy or any probability that the complainants, bly law-abiding persons, would suffer legitimate annoyance, no presumption that they would be annoyed could arise. Similarly in Gobind Prasad's case, except that there was no finding on the immaterial point, whether the act of the accused was in fact lawful. And, to contrast these two cases with that before us, in both of them accused acted in good faithi whilst here they must have known that their conduct was against the law. In I.L.R, 19 Mad., 240 and Emperor v. Gaya Bhar, the existence of an intent to annoy was directly negatived in the first case at least by accused's precautions against discovery; and in both the ground of decision was the distinction “between entertaining a certain intention and having the knowledge that one's act may possibly,” not may probably or, as my learned brother apparently would hold, will certainly “lead to a certain result.” Chunder Narain's case(3) is of little weight since, the point is not discussed at length. Lastly the judgment of Sankaran Nair, J., in Sellamuthu Servaigaran v. Pallamuthu Karuppan no doubt supports the contention under discussion. But it is in conflict with the view taken by Benson, J., in the same case and with Emperor v. Lakshman and Premanundo Shaha v. Brindabun Chung.
The opinion of Benson, J., is, it may be respectfully suggested, in accordance with general principles. It is true that the Penal Code distinguishes, when it is necessary to do so, between intention and knowledge and does not treat the one as invariable accompaniment of the other. But it is only necessary to compare Sects. 299 and 304 (3) and (4) in order to see that knowledge of a probability is treated as equivalent to intention, when the probability is of more than a particular strength; that is when the consequence, on which the character of the act in question depends, is known to be that, which will follow in the natural course. This seems to me consistent with the decision in Queen-Emprees v. Rayapadayachi and other similar cases, in which the annoyance alleged to be the consequence of the accused's act was, owing to precautions taken by him, or for other reasons, regarded as no more than possible. Here however the accused must, as persons of ordinary sense, have known that their conduct would in the natural course cause legitimate annoyance inevitably; and I would therefore hold that annoyance was their intention. I add that the contrary view would make any immediate intention, which the accused might allege as entertained, whether or no in good faith, the measure of their responsibility and authorize an unlimited extension of the right of self-help, which would be disatrous to security.
With these observations I concur in the reference proposed by my learned brother and with the form, in which he has framed the question to be referred, on the understanding that the intent referred to in it is the primary or immediate one, which the accused may entertain.
[This case came on for hearing in pursuance of the above order of Reference, on the 8th day of October 1917, before the Full Bench as constituted above.]
Mr. K. Koti Reddi for the Accused.
Dr. S. Swaminadhan for the Complainant.
The Public Prosecutor for the Crown.
OPINION.
The Chief Justice. — The question in this case is what is the meaning of “with intent to annoy” in Sect. 411 of the Indian Penal Code. In his History of the Criminal Law, Vol. II, p. 100, Sir James Stephen gives the following definition of intention: “The direction of conduct towards the object chosen is called the intention or aim (cf. 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 (page 110) 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, real or supposed, of some ulterior intention. For instance, it well 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 solved the difficulty by making the intent to resist lawful apprehension the gist of the offence. If we are to apply these tests to the present case, there can be no doubt that the accused must be taken to have intended to annoy the complainant when he trespassed on his house in spite of his protests even though his ulterior intention was to search for his own jewels which he believed to be hidden there. On the other hand it is clear that this was not the view of the meaning of ‘intent’ taken by Macaulay and the other Indian Law Commissioners in the draft Penal Code. They regarded the maxim that every one must be taken to intend the natural consequences of his acts as a fiction which should not be recognised in the Penal Code. Their treatment of this question elicited many criticisms which were met in paragraph 100 of the first report on the Penal Code by the Indian Law Commissioners. “The Commissioners saw clearly the difference between “intent” and “knowledge of likelihood,” and meant to express it distinctly in order to avoid the necessity of fiction in laying a charge as for example by imputing “intent” constructively when the circumstances imply only “a knowledge of likelihood” advisedly intending as they did that there should be no distinction in general, in respect of penal consequences between cases in which a man causes an effect which is an offence designedly, and cases in which he causes it by doing what “he knows is likely to cause it.” Advisedly intending this in general they worded the enactment so that the charge may be always expressed according to the truth.” (The Indian Penal Code as originally framed: Madras Higginbotham and Co., p. 215).
Their view was in the language of the Commissioners that there should in general be no distinction in respect of penal consequences between cases in which a man causes an effect which is an offence designedly and cases in which he causes it by doing what he knows is likely to cause it, but that it should expressly be made punishable to do the act with knowledge of the likelihood as they call it. An examination of the Indian Penal Code as finally passed into law shows that it was framed on these lines. The maxim that every one must be taken to intend the natural consequences of his acts is incorporated in the definition of “voluntarily” in Sect. 39, and thus made applicable in every section where that word is used. More generally, doing the act with a criminal knowledge or a criminal intent is expressly made punishable. Sect. 39 speaks of “an act which is criminal only by reason of its being done with a criminal knowledge or intention,” and the distinction is observed in Sects. 87 to 89, 166 and 167, 194, 295, 297, 299, 350, 366, 367, 425, 499, 504 and 505, in all of which doing the act with intent and do in the act with a knowledge of the consequences are both made punishable.
The same result is effected by the addition of the explanation to Sect. 188. In Sect. 350 in particular it is made punishable to use force “intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used.” The contrast with any language of Sect. 441 is very suggestive.
In these circumstances, when in the isolated Sect. 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. The only other section resembling this which I have noted on a cursory examination of the Code is Sect. 201, and the omission as regards Sect. 441 may be explained by the fact that trespassing with intent to annoy was a new offence unknown in English law. This is the view on which Queen-Empress v. Rayapadayachi was decided and I think it should be followed in preference to Emperor v. Lakshman and the judgment of Benson, J., in Sellamuthu Servaigaran v. Pallamuthu Karuppan.
I will only add that the decision in my opinion does not involve any risk to the public security. A man who forces his way into another's house against his will commits a civil trespass for which he may be made answerable in substantial damages. Further, the owner of the house may obstruct his entry, even I am inclined to think, use reasonable force to remove him, without committing the offence of wrongful restraint punishable under Sect. 341, and any active resistance to such obstruction would amount to the use of criminal force punishable under Sect. 350 as under that section it is sufficient if the accused knows that the use of such force is likely to cause annoyance to the person to whom it is used and any preparation for the use of such force will constitute an assault punishable under Sect. 351. I would answer the question in the negative. It. must of course be a question of fact in each case whether the intent was to annoy or not.
Ayling, J.—With all respect, I find it impossible to answer the question referred to us with a simple affirmative or negative. That a mere knowledge that the entry is likely to cause insult or annoyance cannot be taken to be equivalent to an intent to insult or annoy must, I think, be conceded: A comparison of Sect. 441, Indian Penal Code, with the other sections of the Code referred to by the learned Chief Justice makes this clear. Where the legislature has in so many instances specifically placed a knowledge that a certain result is likely to follow from the act on the same footing as an intent to cause that result, it can hardly be contended that the two are synonymous.
On the other hand it seems to me necessary to bear in mind that a person's object (to use a non-contentious word) in entering oh another person's property may be twofold: and that, while intent must in most cases be a matter of inference, there are degrees of probability ranging up to practical certainty, from the stronger of which an inference of intent may not improperly be drawn (vide the distinction emphasised in Emperor v. Lakshman. The reference deals with certainty as well as likelihood of musing annoyance.
The practical difficulty however seems to me to lie less in the degrees that intervene between likelihood and certainty than in the question of the extent to which one motive displaces another or should be treated to the exclusion of another as influencing a man's act. Suppose A enters the dining room of B, a total stranger, during a dinner party. Annoyance to B is so certain that in the absence of special circumstances or any evidence tending to suggest an independent motive for the intrusion, a Court might, I think, fairly infer that A's intent was to annoy B and nothing else.
Now suppose it is shown that A, on entering, meant.
(1) to convey warning to one of B's guests in a matter of life and death;
(2) to gratify his curiosity by looking at a picture in B's dining room.
Is A's action to be treated as equally criminal or non-criminal in each of these cases?
I think not: and it seems to me that in every such case, where a specific intent other than one to insult or annoy is set up the Court must determine whether the motive involved in it is sufficiently strong to displace the intent of annoyance which would otherwise be inferred. The existence of an independent motive for the entry does not in all cases preclude the consideration of an intent to annoy inferable from the practical certainty that annoyance would be caused.
In case I, I should hold that the intruder's intent (in the sense contemplated by Sect. 441, Indian Penal Code), is not to annoy and that he has committed no offence.
The principle of Sect. 81, Indian Penal Code, might be applied and it might be held that the danger to be averted by the warning far outweighed the annoyance caused to the owner of the house: or it might be held that the urgency of the matter precluded the intruder from realising, as he must be presumed to do in ordinary circumstances, the certainty of annoyance.
In case II, the motive put forward by the intruder is so trivial, that neither line of reasoning can be adopted. In effect it is as if he said to the owner of the house, “I know my entry will annoy you, but I want to see your picture, and I mean to do so even at the cost of annoying you, I don't wish to annoy you, but I propose to gratify my curiosity whether I annoy you or not.”
In this case, I do not think the intent inferable from the known certainty of annoyance is displaced by the trivial intent set up by the intruder: and I should be inclined to hold that the offence of criminal trespass had been committed.
If it be held otherwise, it would follow that against such an entry there would be no right of private defence. For the trespass would not be criminal, and Sect. 97, Indian Penal Code, only gives a right of private defence of property against a criminal trespass. It is true that this difficulty is to some extent modified as pointed out in the concluding portions of the judgment of the learned Chief Justice, which I have had the advantage of perusing. Obstructions of an intruder's entry would doubtless not amount to wrongful restraint under Sect. 341, Indian Penal Code, and might be resorted to by the owner or occupier without infringement of the law. But I am not clear how far his rights would extend against an intruder who had already effected his entry; or whether he would be legally justified in using reasonable force to expel him. I cannot therefore altogether dismiss this aspect of the case, in endeavouring to ascertain the intention of the Legislature in regard to Sect. 441 Indian Penal Code. If my reading of the latter is incorrect, it seems worthy of consideration whether Sect. 97, Indian Penal Code, does not need amendment. I would therefore answer the referrence as follows:—
A mere knowledge that the trespass is likely to cause insult or annoyance to the owner of the property does not amount to an intent to insult or annoy within the meaning of Sect, 441, Indian Penal Code: but where the trespasser knows that his trespass is practically certain in the natural course of events to cause insult or annoyance to the owner of the property, it is open to the Court to infer an intent to insult or annoy. It is a question of fact whether this presumption of intent is displaced by proof of any independent object of the trespass.
Kumaraswami Sastri, J.—The question referred to us for decision is whether knowledge that his act is likely or certain to cause annoyance or insult to the person in possession, would if his intention was other than one to intimidate, insult or annoy render him guilty of an offence under Sect. 448 of the Indian Penal Code.
Though there is a conflict of decisions on the question the preponderance of authority is in favour of the view taken by Abdur Rahim, J., one of the referring Judges that it is not sufficient to prove that the person charged under Sect. 448 must have known or had reason to believe that his act would cause insult or annoyance to the person in possession. The question is not free from difficulty but I am of opinion that the reference should be answered in the negative.
It is clear from a perusal of the various sections of the Indian Penal Code that a difference is drawn between “intention” and “knowledge of consequences” and that the Code takes notice of actual and not presumed intention in determining criminality though in determining what a man's actual intention was, Courts can raise all fair inferences that can be drawn from his acts. When an act is made an offence by reason of its having been committed with a specified intention the intention has to be found as a matter of fact upon evidence which justifies the inference that the accused had the intention required to render his action criminal.
When proof of intention is necessary it is clear that unless the accused admits that his intention was such as would render him guilty of the offence charged—intention which is a psychological fact—can only be proved by having regard to the nature of the act he commits and a criminal intent is often presumed from acts which are reasonably susceptible of but one interpretation. The rule of law that a man must be taken to intend the natural consequences of his act is really a rule of evidence. The Court is not bound to accept the statement of the accused as to his intention but may find from the facts what his intention was and in order to arrive at a conclusion may bold that when a man uses means which at the time he used them he knew or had reason to believe to be likely to cause a result his intention was to cause the result.
When however the Court on the materials before it comes to the conclusion that a person had a specified intention when be did an act which is not the intention required to make his act an offence under Sect. 441 the mere fact that he would have known that certain consequences would happen if he had paused to consider would in my opinion be insufficient.
The view taken by the framers of the Act has been pointed put by the Chief Justice in his judgment and I think that in construing Sect. 441 it must not be forgotten that wherever the Penal Code wants to make a man liable for knowledge of consequences it expressly says so. As pointed out by Sir William Markby (Elements of Law, paragraph 222) expectation that a consequence would follow or a knowledge that it is likely to follow without any desire that it should follow is an attitude of mind which is distinct from intention and the framers of the Act clearly kept the two distinct and treat knowledge as a state of mind differing from intention. In some sections, e.g, 118 to 120, 153; 154, 217, 293, etc., the words used are ‘Intending or knowing it to be likely.’ In others only intention is referred to e.g, 124, 140, 174 to 176, 193, 211, 569, etc. In some sections the word used is “knows,” e.g, 127, 130, 188, 196, 260, etc. In some sections the words are knowing or having reason to believe or believing, e.g, 136, 181 to 183, 201 to 203, 499, etc. In certain sections the words are ‘reason to be believed,’ e.g, 158, 156 and in others “for the purpose of,” e.g, 189, 190. In Sect. 298 the words used are “deliberate intention.”
I think the correct view has been taken in Queen-Empress v. Rayapadayachi. Though the facts show that the accused wanted to conceal his presence in the house the judgment proceeds on the broad ground that “Sect. 441” is so worded as to show that the act must be done with intent and does not as other sections do (e.g, Sect. 425) embrace the case of an act done with knowledge of the likelihood of a given consequence. To introduce the rule that knowledge of consequences is equivalent to an intention when the probability of consequences following is of more than a particular strength would, in my opinion, introduce, into the section, which, as pointed out by Straight, J., in In the matter of the petition of Gobind Prasad is complicated enough, further difficulties.
C.KQuestion answered in the negative.
End of Vol. VI.
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