- (1.) THIS is a reference by Additional Sessions Judge Churu in a case under sec. 447 of the Indian Penal Code and has arisen in the fallowing circumstances:
(2.) IT appears that on 2nd February, 1949 the complainant Gulabchand left his village Dungargarh to attend a marriage party at Nimori and during his absence the accused Chimnaram and his servant Budharam entered into the bara in dispute, of which the complainant Gulabchand claimed to have been in possession for the last 17 years or so. The accused removed the thorn fencing on the eastern side of the bara, and constructed a pacca wall and door during the day and night of 3rd February 1949, and put a lock on the door and thus assumed exclusive possession of the said bara. When Gulabchand returned home on the 5th February, 1949 and came to know of these happenings behind his back, he filed a complaint on the same day in the court of the Second Class Magistrate Dungargarh. On 28th February, 1949 the accused were discharged by the trial Magistrate but on revision the learned Sessions Judge set aside the order of discharge and sent the case back to the learned Magistrate for further enquiry according to law by his order dated 6. 8. 1949. The case, thereafter, was dismissed for default and on a revision having been preferred by the complainant, it was again remanded further enquiry according to law. Eventually the case resulted in the conviction of the accused under section 447 I. P. C. who were sentenced to a fine of Rs. 100/- each and in default to undergo one month's simple imprisonment by the Second Class Magistrate Dungargarh. The learned Magistrate also directed that the bara be restored to the complaint under sec. 522 of the Code of Criminal Procedure. On appeal, the convictions and sentences of the accused were maintained by the learned District Magistrate but the order for restoration of the bara to the complainant was set aside. The accused preferred a revision against the above order to the learned Additional Sessions Judge, Churu, who has made the present reference. Both accused pleaded not guilty. The defence of the principal accused Chimnaram was that he had purchased the bara in dispute from one Gopikishen, nephew of the complainant Gulabchand by a sale-deed dated 4th June, 1948 and had obtained possession of the bara on or about the date. The accused admitted, however, that they had removed the thorn fencing and constructed a pucca wall on 3rd February, 1949 but their defence obviously was that they entitled to do so. The prosecution produced seven witnesses to prove that the bara in question was under the possession of the complainant Gulabchand and that his possession had been both long and peaceful until it was disturbed by the accused on the 3rd February, 1949. Apart from the evidence of the complainant P. W. 1 Gulabchand, we have the evidence of P. W. 2 Bhuraram, P. W. 3 Ganesh-ram, P. W. 4 Ladhu, P. W. 5 Chauthmal, P. W. 6 Gani, and P. W. 7 Ibrahim. I have been taken through the entire evidence by the learned Assistant Government Advocate and I have no hesitation in coming to the conclusion that the finding of the learned District Magistrate, that Gulabchand was in long and peaceful possession of the bara in question, is justified by over-whelming evidence on the record P. W. 1 Gulabchand of course supports his case; P. W. 2 Bhuraram clearly stated that he had been a lessee of the bara for the last fourteen or fifteen years and had been paying annually a sum of Rs. 4/- as rent to Gulabchand. He also deposed that he used to tether his cattle in this enclosure and that he stored his grass and bricks etc. therein. He further stated that when on Magh Sudi 5, Svt. 2005 (which corresponds to 3rd February, 1949) he went into the bara to fetch full at about 8 or 8-30 in the morning, he saw the accused removing the fencing and lot of labour employed in the bara. The accused told him that he had no business to come into the bara whereupon the witness suggested that he might be allowed to take away his goods which were lying there. The accused, however, did not heed the witness and told him to seek his remedy in courts of law. According to this witness the accused carried on work at night and even burnt midnight oil in doing so. It is significant that this witness who had given damaging evidence against the accused was not cross-examined at all. I have no doubt that Bhuraram is an independent witness and that his evidence in substance represents the truth. It is not necessary to deal at length with other witnesses who afford strong corroboration of the story related by the complainant Gulabchand and P. W. 2 Bhuraram. It is further significant that not a single question was put to these witnesses in cross-examination as regards the alleged possession of Gopikishen on or about the date of the alleged sale by Gopikishen in favour of the accused. A careful perusal of the evidence of Gopikishen who was examined as D. W. I clearly shows that he was not in possession at the time he alleges to have sold the bara to the accused. Gopikishan stated that the bara was an open plot of land and no goods or anything of the kind lay there, but he was compelled to admit that a thorn fencing stood in the bara on its eastern side and he was not able to account for the existence of that thorn fencing. Similarly, D. W. 2 Moolchand does not appear to have any personal knowledge as to who was in possession of the bara in dispute although he is a resident of Dungargarh and all he said was that he derived his knowledge from his father. On the basis of such evidence it was perfectly reasonable and proper for the trial Magistrate and the learned District Magistrate to have held that the complainant Gulabchand was in possession of the bara in question up to 2nd February, 1949 and that the accused Chimnaram and his servant Budharam had assumed unlawful possession thereof in the absence of the complainant Gulabchand. Before preceding further I must mention here that the learned Additional Sessions Judge, Churu, was labouring under a misconception, when he thought "that the question of title is material for considering whether the offence for which they are being tried is an offence of criminal trespass as defined in sec. 441 I. P. C. ". The true question for determination in a case under sec. 441 I. P. C. , in may judgment, is not the question of title between the parties but relates to possession only. It is not the business of a criminal court in proceedings of this kind to launch and lose itself in any searching and elaborate enquiry as to the respective titles of the parties and refuse protection to, long and peaceful possession. It was thus owing to a wrong approach on the part of the learned Additional Sessions Judge that he came to the conclusion that it was proved by unimpeachable documentary evidence that this bar a fell in the share of Gopikishen and that the complainant Gulab Chand did not dispute Gopikishan's ownership over this bara. So far as I am able to see, these facts were neither relevant to the matter in dispute nor have they been legally proved. The learned Additional Sessions Judge similarly fell into error when he referred to certain letters which are alleged to have passed between Gopikishen and Gulabchand in which the latter is said to have made some offers for the purchase of bara in dispute to which Gopikishen did not agree. No attempt was made to prove that Gulabchand was the author of the letters in question and indeed not a single question was put to him in cross-examination while he was in the witness-box, regarding these letters. I am, there fore, not at all concerned with the question of title as respects the bara in dispute and the parties can be left to have their rights determined in proper court of law so far as that aspect of the matter is concerned. The only relevant and proper question to decide in these proceedings is as to the possession of the parties in respect of the bara in question on the date of the alleged offence and I have already held above that the courts below were right in returning finding in favour of the complainant on that point. The only other question that remains to decide is whether the act of the accused in entering into the property of the complainant in the manner alleged fulfils the requirements of criminal trespass as laid down in section 441 of the Indian Penal Code. The learned Additional Sessions Judge seems to have been of the view that the accused in this case entered upon the property in question with intent to assert a bona fide claim of right or, to use an expression of the learned Judge, "as they were legally entitled to possession" and therefore it could not be said that they had the intention to commit any offence or to intimidate, insult or annoy the complainant. I am not impressed with this argument. In the first place, it is a dangerous doctrine to hold that a person who may consider himself legally entitled to possession may walk upon the property while another person is in peaceful possession of it, take the law into his own hands and then, when he is prosecuted, permitted to say that all he intended was to claim possession to such property and not to intimidate, insult or annoy the person who was in peaceful possession thereof. In the second place, it is impossible to hold, in the circumstances of this case, that the accused entertained any bona fide belief as to their claim to possession while they entered into possession of the bara in dispute, because they knew perfectly well or should have known that the complainant Gulabchand was in long and peaceful possession and that the vendor, Gopikishen, had no possession at the time he sold it to the accused Chimnaram. I am further of opinion that when a person in such circumstances enters upon the property of another, he must be presumed to intend the natural consequences of the act, viz. , that he would thereby inevitably annoy or insult the person who is already in possession of such land. I have already referred at length to the evidence of Bhuraram P. W. 2 who had his goods on the land but who had been shown his way by the accused refusing to allow him to take them away. I may cite in this connection Emperor vs. Jamna Das (1) (I. L. R. 1944 All. , 654. ). In that case, an accused person broke open a lock and entered a Kothari which was not in his possession but was in the possession of complainant, behind the back of the latter. It was held that the intention to commit an offence or to intimidate, insult or annoy was clearly inherent in the act of the accused. Reference may also be made to Mida Dass vs. The State (2) (A. I. R. , 1953 Pepsu, 13.) and Bansgopal vs. King Emperor (3) (I. L. R. XIV Lucknow, 360.) in support of the same view. I may mention that an accused in such cases cannot defend his act by relying on his ultimate intention of inferring, his supposed right of possession and, therefore, I have no hesitation in coming to the conclusion that the accused in this case were rightly held guilty of criminal trespass. The result is that there is no force in this reference and it is hereby rejected. . ;