Decided on February 22,1967



- (1.) The question arising in this revision is whether the entry by a pregnant girl into the house of the person who caused her pregnancy, with the object of compelling him to marry her, would amount to house trespass as contemplated in the Penal Code.
(2.) The accused and Pw. 1 were learning ' Kathaprasangam' under a common master and their constant association gradually ripened into love resulting finally in her pregnancy through him. On 26th July 1965 at about 8 a. m. she made her way into Pw. 1's house and remained there till 5 p. m. on 28th July 1965. It was alleged that she had entered the house with intent to intimidate, insult or annoy the persons in the house. At the time she made the entry. Pw. 1 was not present in the house. On 27th July 1965, Pw. 2 the mother of Pw. 1 presented a petition to the Additional First Class Magistrate of Moovattupuzha who forwarded it to the Kothamangalam police for investigation and on receipt of the police report, Crime No. 58/65 was registered. The girl was arrested from the house and removed from the scene. The case of the accused was that after causing the pregnancy Pw. 1 took her to a nearby temple for getting her married. Since Pw. 1's parents who were present there protested the marriage did not take place. It was in these circumstances that she went to the house, and her object in going there was not to insult, intimidate or annoy anybody; but only to compel Pw. 1 to marry her. The learned Magistrate has held that the act alleged would amount to criminal trespass and accordingly the accused has been convicted under S.448, I. P. C, and sentenced to pay a fine of Rs. 100.
(3.) It was argued before me that the facts alleged even if taken as true would not amount to criminal trespass as envisaged by S.447 or 448 of the Code. The most important ingredient of the offence of criminal trespass is that the entry should be with intent to commit an offence or intimidate, insult or annoy the person in possession. In the present case, admittedly the accused had no intention to commit an offence. Whether she had the intention to intimidate, insult or annoy the person in possession, viz., the complainant is the next question for consideration. On a careful analysis of the position in the light of decided cases I am persuaded to the view that on the facts disclosed in the case it is difficult to convict the accused of criminal trespass. To justify a conviction of criminal trespass, "It must be proved that some criminal intent was present in the mind of the accused, and it does not at all follow that, because an act is unlawful and is one that the civil law will restrain, or for which it will compensate the injured party in damages, it is necessarily criminal". (Vide The Law of Crimes by Ratanlal and Dhirajlal, 21st Edn. p. 1192). So also in the present case, even if the entry is unlawful and might sustain a civil action for damages it cannot be treated as criminal. When the accused was questioned by the complainant Pw. 2 as to the purpose of her entry into the house she stated that she wanted to see Pw. 1 who had caused her pregnancy. It is true that she continued to remain in the house and refused to quit unless the matter was settled some way or other; but that will not alter the position. In a Travancore decision in Aiyappan Kumaran v. Sirkar 18 TLJ 555 cited by the learned State Prosecutor it was held that: "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 intention to insult or annoy." But this view has been dissented from in later decisions. In Mahadev v. Emperor 36 Crl. L. J. 328 it was held that: "A mere knowledge that the trespass is likely to cause insult or annoyance does not amount to an intent to insult or annoy within this section. A conviction could not follow merely because one could pronounce with certainty that the accused must have known that his act would, as one of its inevitable incidents, cause annoyance. There is a distinction between the phrases 'with intent' and 'with knowledge'; it must be proved by the prosecution that the accused had the intention to intimidate, insult or annoy when he made the entry, and it is not enough that the prosecution should ask the court to infer that the entry is bound to cause intimidation, insult or annoyance". So it is clear that even if the accused had the knowledge that her action would cause insult or annoyance to the inmates of the house, such knowledge is not sufficient to constitute an offence of criminal trespass. There is no evidence in the case to show that the intention of the accused was to intimidate, insult or annoy the complainant. At worst, her action, might constitute a civil trespass actionable in a civil court. The conviction and sentence passed on her have, therefore, to be vacated.;

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