LexRASH BEHARI CHATTERJEE versus FAGU SHAW & ORS.
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A
RASH DEBARI CHA'ITERJEE
v.
FAGU SHAW & ORS.
April 28, 1969
B
[S. M. Snw, R. S. BACHAWAT ANO V. RAMASWAMI, JJ.]
c
D
E
F
G
Indian Penal CO<k (Act 45 of 1860) ss. 441 and 447-Criminal Trt11·
poss-..4.ctucl pretence of person who is intended to
be
annoyed
if
necessary.
On the succees of a suit filed in 1951 by the appellant he obtained
actual physical possession of a land in 1963 by evicting the respondents
with police hel{>.
The respondents trespassed on the land after two
weeks from their ejectment, and they were found making preparations
for construction of bamboo structures.
The respondents were convicted
under s. 441/447 l.P.C. by the Magistrate, and the conviction wos affirm-
ed by the Sessions Judge.
But the High Court, on a revision acquitted
the respondent.s as .it was of the view that the appellant was not in actual
possession of the property and that the complainant must not oilly be in
actual possession but also be present at the time of the trespass so as to
bring the offence undel' s. 441/447 J.P.C. In appeal this Court,
·
HELD :-The High Court was in error in holding that the appellant
was not in actual possession of the property. The land in dispute was
lying vacant after the appellant obtained possession and the actual posses-
sion must be of the appellant. Further the law does not require that the
intention must be to annoy a person who is actually present at the time of
the trespass.
·
On the facts pf this case there could not be any doubt that the intention
of the respondents was to annoy the appellant who was in possessio.n of
the case land.
There could have been no hope on the part of the res-
pondents that they would be able to stay in possession of the. land. After
twelve years of litiaation the appellant was able to obtain poss~sion, and
only after two weells after that day the respondents chose to trespass and
start construction.·
Any other dominant intention could not be found
which prompted the trespass.
[427C, F]
Mathuri and Others v. State of Punjab, [1964] 5 S.C.R. 916; 927,
followed.
CRIMINAL APPELLATE JUR.J.SOICTION : Criminal Appeal No. 5
of 1967.
Appeal by special leave from the judgment and order dated
May 11, 1966 of the Calcutta High Court in Criminal Revision
No. 188 of 1966.
Sukumar Ghose, for the appellant.
D. N. Mukherj.?e, for re5pondents Nos. 1 to 8.
P. K. Chakravarti, for respondent No. 9.
H
The Judgment of the Court was delivered by
Sikri, 1.
This appeal by special leave is directed against the
judgment of the High Court at Calcutta allowing the criminal
426
SUPREME COURT Rl!PORTS
( 1970] I S.C.R·
revision and acquitting the respondents of the charge under s. 44 7,
A
LP.C.
The only question which arises in the present appeal ls whether
on the facts and circumstances of the case the intent to annoy
the appellant has been established. The law on the point is now
settled by this Court in Mathuri and Others v. State of Punjab(').
B
Das Gupta, J., speaking for the Court, after reviewing the autho-
rities, stated the law thus :
"The correct position in law may, in our opinion,
be stated thus : In order to establish that the entry on
the property was with the i,ntent to annoy, int~date or
insult, it is necessary for the Court to be satisfied that
causing such annoyance, intimidation or :usult was the
aim of the entry; that it is not sufficient for that purpose
to show merely that the natural consequence of the
entry was likely to be annoyance, intimidation or insult,
and that this likely ~onsequence was known to the
person entering; that in deciding whether the aim of the
entry was the causing of such annoyance, intimidation
or insult, the Coun has to consider all the relevant cir-
cumstances including the presence of knowledge that its
natural consequences would be such annoyance, intimi-
dation or insult and including also the probability of
something else then the causing of such intimidation,
inS'.Jlt or annoyance, being the dominant intention which
prompted the entry."
This judgment was not brought to the notice of the High Court
in this case.
In view of this judgme.nt it is not necessary to re-
view the earlier High Court cases.
·
The appe!lant gave the history of the dispute between himself
and the respondents in his evidence.
He stated that he and his
three brothers filed title suit No. 404 of 1951 in the first Court
of Munsiff at Serampur against the respondent Fagu Shaw praExcerpt shown. Read the full judgment & AI analysis in Lexace.