M.P.Saxena - (1.) BADRUL Islam and Ram Das have filed this revision application against the judgment and order dated 30-6-1976 passed by the Sessions Judge, Hamirpur, confirming the revisionist's conviction under Section 448 IPC and the sentence of fine of Rs. 500/- each awarded thereunder. In default of payment of fine they were awarded one month's rigorous imprisonment.
(2.) BRIEFLY stated the facts are that Badrul Islam and Ram Das are tenants of shops on the ground floor owned by Mohd. Ahmad alias Babu Master (who will hereinafter be referred to as Mohd. Ahmad). The first floor of this building was in occupation of Mohd. Ahmad who stored his nets and bags etc. therein. The relations between the landlord and the tenants were far from cordial. The building being an old and ricketty the Municipal Board, Hamirpur, served a notice under Section 263 of the Municipalities Act on the owner to pull down the western wall of the house existing on the first floor. The owner wrote to the Municipal Board that he will have no objection provided the ground floor was got vacated by the tenants. It is said that on J 6-5-1971 at about 10 A. M. the landlord received information at his house that the first floor of his building was being pulled down by Badrul Islam and Ram Das with the assistance of three labourers, namely, Abdul Khaliq, Kalka Prasad and Ram Asrey. On getting that information he reached the spot and found these persons on the first floor pulling down the constructions. He also found that his articles stored in the first floor were taken away. On his protest the tenants and others showed an aggressive attitude. This incident was witnessed by Laxmi Shankar (PW 3), Krishna Maharaj and Surya Kumar Tiwari (PW 5). The landlord lodged a report at the police station at 11.15 A. M. Sri Harnandan Singh, the then S. O. Kot- wali, reached the spot and found certain persons demolishing the wall of the upper storey. Both the tenants were getting it pulled down under their instructions. The aforesaid five persons and one Munna who was also present, were taken into custody. Two housebreaking implements and a ladder were taken possession of. On these facts six persons were sent up for trial under various counts. However, the trial court framed a charge under Sections 427, 452 and 380 IPO. All the accused persons pleaded not guilty to the said charges. Badrul Islam and Ram Das denied that they pulled down the constructions or had removed the articles worth Rs. 640/-. They also denied that they had caused loss of Rs. 2000/- to the owner. After going through the evidence on the record the learned trial court believed the prosecution story only to this extent that the two tenants were getting a portion of the first floor demolished. The labourers were acquitted altogether as they were working under the instructions of the two tenants. The latter were also acquitted of all the three charges but were convicted under Section 448 IPC as they had committed criminal trespass and caused annoyance to the owner of the building. He sentenced each of them to a fine of Rs. 500/-. Both the tenants filed an appeal and the owner filed a revision application against the order acquitting the labourers. The learned Sessions Judge rejected both the appeal as well as the revision. The tenants alone filed this revision application challenging their conviction under Section 448 IPC.
(3.) THERE is no denying the fact that the revisionists are tenants on the ground floor, the first floor of which is in the occupation of the landlord for storing goods etc. THERE is also no dispute that a wall on the first floor had become in a dangerous condition and the Municipal Board, Hamirpur, had served a notice on the owner requiring him to demolish it. Ex. Kha-1 is the reply which the owner had sent to the Municipal Board. It reads as follows :- "The wall in respect of which you have given the notice is really in a dilapidated condition and residents of the mohalla have also asked me to pull it down. I have seen the wall and I really find that it deserves to be demolished. I asked the tenants who reside in the portion near this wall to vacate the shop in the interest of safety of person and property of the general public so that it may be pulled down and there may be no danger to any one but they are not willing to vacate it. If you want to have this wall pulled down you may have it done by your gang and I will bear its expenses I, therefore, pray that necessary action be taken in the interest of general public." The evidence on the record clearly goes to show that before any action could be taken by the owner or the Municipal Board, the tenants themselves proceeded to have the said wall demolished through the labourers. The police officer reached the spot and arrested them when they were In the process of demolishing the wall. The crucial point for consideration is whether in the aforesaid circumstances the revisionists can be said to have committed an offence punishable under Section 448 IPC. This section says : "Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both." House trespass is defined in Section 442 which says : "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." Explanation :-The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house- trespass." "Criminal trespass" is defined in Section 441 IPC. The first paragraph of it which is relevant for purposes of this case reads as follows :- "Whoever enters into or upon property, in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such properly......... on having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence is said to commit "Criminal trespass." " The aforesaid makes it clear that entry into another's property should be with intent to commit an offence or to intimidate, insult or annoy the person in possession of such property. In the instant case the revisionists were exonerated of the charges under Sections 427, 452 and 380, IPC and cannot be said to have gone on the first floor with intent to commit mischief or theft. There is also no evidence on the record to show that they were trying to pull down the wall with intent to intimidate, of insult the landlord. The learned lower courts were of opinion that by demolishing the wall the revisionists had intended to annoy the landlord who was in possession of the first floor and thereby committed an offence punishable under Section 448, IPC. Before going into its merit it may be stated that the evidence on the record goes to show that the revisionists were getting only that wall pulled down in respect of which the Municipal Board had issued a notice and for the demolition of which the owner himself had no objection as reproduced above. The tanants did not want that under the cover of removal of one wall the entire ground floor which was not reported to be in a dilapidated condition may be demolished and they may be thrown on the street. They therefore, themselves got the dangerous wall demolished at their own costs though the landlord was prepared to bear its expenses as given out to the Municipal Board in Ex. Kha. 1. They did not demolish more portion of the wall than was intended. In these circumstances I am of the view that the tenants cannot be said to have any intention to annoy the landlord. I have no mens rea on their part. As a matter of fact, they obliged him by having the wall removed for which the landlord would have been required to incur expenditure. In this connection reference may be made to certain cases to show as to when a person will be deemed to have committed criminal trespass with intent to annoy the person in possession of a building. In the case of Punjab National Bank Ltd. v. All India Punjab National Bank Employees federation, AIR 1960 SC 160 the question arose whether the employees of a factory who were on strike and who organised meeting on the premises of the factory inspite of prohibition by the factory authorities committed an offence of criminal trespass under Section 441, IPC. Their lordships observed : "Even if we assume that the employees' entry in the premises was unlawful or that their continuance in the premises became unlawful it is difficult to appreciate the argument that the said entry was made with intent to insult or annoy the superior officers the sole intention of the strikes obviously was to put pressure on the bank to concede their demands. Even if the strikers might have known that the strike may annoy or insult the Bank's officers, it is difficult to hold that such knowledge would necessarily lead to the inference of the requisite intention. In every case where the impugned entry causes annoyance or insult it cannot be said to be actuated by the intention to cause the said result. The distinction between knowledge and intention is quite clear and that distinction must be borne in mind in deciding whether or not in the present case the strikers were actuated by the requisite intention. The said intention has always to be gathered from the circumstances of the case and it may be that the necessary or inevitable consequence of the impugned act may be one relevant circumstance. But it is impossible to accede to the argument that the likely consequence of the act and its possible knowledge must necessarily import a corresponding intention.";