Rash Behari Chatterjee Vs. Fagu Shaw
& Ors  INSC 127 (28 April 1969)
28/04/1969 SIKRI, S.M.
CITATION: 1970 AIR 20 1970 SCR (1) 425 1969
SCC (2) 716
Indian Penal Code (Act 45 of 1860) ss. 441
and 447-Criminal Trespass-Actual presence of person who is intended to be
annoyed if necessary.
On the success 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 help. 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 I.P.C. by the Magistrate, and the conviction was affirmed by the
Sessions Judge. But the High Court, on a revision acquitted the respondents as
it was of the view that the appellant was not in actual possession of the
property and that the complainant must not only be in actual possession but
also be present at the time of the trespass so as to bring the offence unders.
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
possession 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
On the facts of this case there could not be
any doubt that the intention of the respondents was to annoy the appellant who
was in possession of the case land. There could have been no hope on the part
of the respondents that they would be able to stay in possession of the land.
After twelve years of litigation the appellant was able to obtain Possession,
and only after two weeks 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, 
5 S.C.R. 916;
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 5.
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. Mukherjee, for respondents Nos. 1 to 8.
P. K. Chakravarti, for respondent No. 9.
The Judgment of the Court was delivered by
Sikri, J. This appeal by special leave is directed against the judgment of the
High Court at Calcutta allowing the criminal 426 revision and acquitting the
respondents of the charge under S. 447, I.P.C.
The only question which arises in the,
present appeal is 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 (1). Das Gupta,
J., speaking for the Court, after reviewing the authorities, stated the law
"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 intent to annoy, intimidate or insult, it is necessary for the
Court to be satisfied that causing such annoyance, intimidation or insult 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 consequence 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 Court has to consider all the
relevant circumstances including the presence of knowledge that its natural
consequences would be such annoyance, intimidation or insult and including also
the probability of something else then the causing of such intimidation, insult
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 judgment it is not necessary to re. view the earlier High Court cases.
The appellant 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 praying for ejectment and khas
possession of the land in dispute; the, respondent Fagu Shaw contested the
'suit; on May 23, 1954, a decree of ejectment was passed; against the judgment
and decree the respondent Fagu Shaw preferred an appeal before the District
Judge and the appeal was dismissed; the respondent Fagu Shaw preferred a second
appeal to the Calcutta High Court which was dismissed summarily; the appellant
executed the decree and in September 1962 when the Nazir of Serampur Civil
Court with process servers went to take delivery of possession of the case, (1)
 5 S.C.R. 916, 927.
427 land the respondent resisted and refused
to give possession;
however on February 3, 1963, the Nazir with
police help went to the spot for delivery of possession and the appellant
obtained actual physical possession. The appellant further stated that the land
was in their possession from February 3, 1963 upto February 17, 1963, when the present
occurrence took place. It appears that the respondents trespassed on the land
on the, night of February 16, 1963, and on February 17, 1963, they were found
making preparations for construction of bamboo structures on the case land and
some bamboo pegs had already been posted.
Now the question arises whether the intention
of the respondents was to annoy the appellant or not within the meaning of s.
441, I.P.C. It seems to us that on the facts of this case there cannot be any
doubt that the intention of the respondents was to annoy the appellant who was
in possession of the case land. There could have been no hope on the part of
the respondents that they would be able to stay in possession of the land. The
litigation started in 1951 and it was on February 3, 1963 that the appellant
was able to obtain possession. It is only after two weeks after that day that
the respondents chose to trespass and start construction. In this case we
cannot find any other dominant intention which prompted the trespass.
The High Court seems to have proceeded on the
footing that the appellant was not in actual possession of the property and
further that the law requires that the complainant must not only be in actual
possession but also be present at the time of trespass so as to bring the
offence within the provisions of s. 441/447, I.P.C. In our view 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 possession 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.
In the result the appeal is allowed, the
judgment of the High Court set aside and the judgment and order of t he
Magistrate 1st Class Serampur, which was affirmed by the learned Additional
Sessions Judge, Hoogly, restored.
We may mention that the Magistrate sentenced
the respondents to pay a fine of Rs. 100 each and in default to suffer rigorous
imprisonment for one month. We are of the view that the Magistrate was rather
lenient to the respondent Fagu Shaw who, seems to be an inveterate trespasser,
and in the circumstances of this case the Magistrate should have sentenced him
to imprisonment however short.
Y.P. Appeal allowed.