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1974 Supreme(Mad) 470
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE PAUL
P. A. Chinnaswamy and Others - Appellant
Versus
Chandra Rao S. Kathavukar - Respondent
Case No : Crl.R.C. No. 662 of 1973 and Crl.R.P. No. 651 of 1973
Decided On : 31 October 1974
Re-entry into premises after delivery of possession by the bailiff in execution of an order of eviction passed by the Rent Controller, with the intention to annoy the complainant, constitutes an offence under Section 448, Indian Penal Code.
Headnote:
CRIMINAL LAW - TRESPASS - SECTION 448, INDIAN PENAL CODE - RE-ENTRY INTO PREMISES AFTER DELIVERY OF POSSESSION BY BAILIFF - INTENTION TO ANNOY - BONA FIDE CLAIM OF RIGHT - SECTION 441, INDIAN PENAL CODE.
Fact of the Case:
The revision petitioners were convicted of an offence under Section 448, Indian Penal Code for re-entering premises after delivery of possession by the bailiff in execution of an order of eviction passed by the Rent Controller. The petitioners claimed that they had a bona fide claim of right to the premises and that their re-entry was not with the intention to annoy the complainant.
Finding of the Court:
The court held that the petitioners' re-entry into the premises was with the intention to annoy the complainant, as evidenced by the fact that they had previously vacated the premises and removed their goods in compliance with the order of eviction. The court also held that the petitioners' claim of right was not bona fide, as it had been adjudicated upon by the Civil Court and possession had been given to the complainant under a decree of the Civil Court.
Issues: 1. Whether the petitioners' re-entry into the premises was with the intention to annoy the complainant? 2. Whether the petitioners' claim of right was bona fide?
Ratio Decidendi: 1. The court held that the petitioners' re-entry into the premises was with the intention to annoy the complainant, as evidenced by the fact that they had previously vacated the premises and removed their goods in compliance with the order of eviction. The court also held that the petitioners' claim of right was not bona fide, as it had been adjudicated upon by the Civil Court and possession had been given to the complainant under a decree of the Civil Court. 2. The court relied on the following principles: * Section 441, Indian Penal Code is not intended to provide a cheap and expeditious method of enforcing a civil right. * To bring a case within Section 441, Indian Penal Code, the intention specified in the section must be the dominant intention. * Entry upon land made under a bona fide claim of right, however ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. * To establish criminal trespass, the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant and that any claim of right was a mere cloak to cover the real intent, or at any rate constituted no more than a subsidiary intent.
Final Decision: The court dismissed the revision petition and upheld the conviction of the petitioners under Section 448, Indian Penal Code.
The first and second revision petitioners have been convicted of an offence under Section 448, Indian Penal Code by the learned Fourth Presidency Magistrate, Madras and sentenced to pay a fine of Rs. 25/-, in default to undergo R.I. for two weeks and the third revision petitioner has been convicted of an offence under Section 426, Indian Penal Code and sentenced to pay a fine of Rs. 25/- in default to undergo R.I. for two weeks.
2. The facts are as follows : The Respondent Chandra Rao S. Kathavukar filed H.R.C. No. 327/72 before the Rent Controller and obtained an ex parte order of eviction against the first revision petitioner and one Elumalai and in execution of that order, in E.P. No. 558 of 1972, the bailiff P.W. 2 went to No. 1, Rattan Bazar, Madras along with the Complainant's agent P.W. 4 at about 2 p.m. on 27-6-1972 to execute the delivery warrant. In that premises P.W. 1 the complainant is keeping a tailoring shop in the upstairs while in the downstairs the first revision petitioner is having a rope shop and one Elumalai is also keeping a rope shop and a betel-leaf shop. According to P.W. 1 the Complainant and P.W. 2 the bailiff and P.W. 4 the agent of P.W. 1, P.W. 2 the bailiff explained to the first revision petitioner who was present in his shop the contents of the delivery warrant, whereupon the first revision petitioner took out the articles which were kept in the shop and vacated the premises and P.W. 2 delivered possession of the premises to P.W. 4 and the bailiff wrote on the door of the shop that possession had been delivered and he closed the door of the shop. Since P.W. 4 did not have a lock to lock up the shop, the shop was not locked P.W. 2 then went to Elumalai's shop in order to deliver possession of the same, but owing to the objection raised on behalf of Elumalai that portion of the shop could not be delivered possession of P.W. 3 who was a customer of P.W. 1 and who had come to P.W. 1's tailoring shop, when he went to P.W. 1's shop to give some clothes for stitching, saw the first revision petitioner taking out all the articles which he had kept in that shop and P.W. 2 closing the door of the shop and writing on the door of the shop that possession had been delivered. According to P.Ws. 1 to 3 and 4, the first revision petitioner and the second revision petitioner then attempted to open the doors to the shop in order to get in. When P.W. 1 obstructed them they threatened to stab him and entered into the shop and they replaced in the shop the articles which the first revision petitioner had previously taken out of the shop. P.W. 3 while coming down from P.W. 1's tailoring shop saw this P.W. 1 then went to give a report at the police station. The third revision petitioner then kicked the wooden partition that was between the portion in which the first revision petitioner was having his shop and Elumalai's portion and broke that partition.
3. The revision petitioners examined two witnesses on their behalves of whom D.W. 1 testified that when the bailiff P.W. 2 came to the first revision petitioner's shop only the second revision petitioner was there. D.W. 2 is the first revision petitioner himself and he also testified that on the day the bailiff is said to have come to his shop he was not there, for he had asked the second revision petitioner to look after the shop and actually the bailiff never came to the shop and never removed the samans from there. He further testified that he filed an application to set aside the exparte order of eviction and had got that order set aside. He denied that there was any partition between his shop and Elumalai's. He filed some documents to show that his shop is not situated at No. 1 Rattan Bazar. The learned Presidency Magistrate, however, believed the evidence of P.Ws. 1 to 5 and convicted the revision petitioners as mentioned above.
4. It is now contended that the conviction is unsustainable even if the evidence of P.Ws. 1 to 5 is accepted.
5. I find that th
