P L D 1958 Dacca 350 (PLP)

(2) If such entry is lawful, then unlawfully remaining upon such property. (3) Such entry or unlawful remaining must be with intent. (i) to commit an offence, or (ii) to intimidate, insult or annoy the person in possession. of the property." An offence certainly means an offence under the Penal Code. In the charge framed as against the petitioners it was specifically stated that they committed house trespass by entering into the room in occupation with intent to annoy the complainant. This is quite all right. The accused got sufficient notice of the charge. The learned Magistrate also in his judgment has specifically found that the petitioners "went there and broke open the lock with intent to annoy, intimidate and insult the person in occupation." The petitioners preferred an appeal against the conviction and sentence by the learned Magistrate and the judgment of the Appellate Court has been challenged by the learned Advocate for the petitioners. Mr. Ghani however has drawn my attention to a case reported in P L D 1953 F C 223 where the Federal Court has laid down the law "The trial Court is the foundation of the case, and, if the trial has been vitiated, the judgment in appeal, which is the superstructure built on the foundation, cannot stand." This well known principle has nothing to do with the facts of the particular case. It is not the case where the judgment of the trial Court is bad but it is a case where the trial Court has dealt with the essentials of the offence and it is only the judgment of the Appellate Court which has been attacked as bad. The Appellate Court has come to the finding that that accused had the intention to dispossess the complainant from a room in which he got possession some hours beforehand. As laid down in the case reported in 3 D L R 135, every unlawful entry does not amount to criminal trespass. "The section does not penalise unlawful entry with any other intent, such as mere intent to take possession. The Court must come to a clear finding that the entry was with one or 11iore of the intents mentioned in section 441, P. P. C." At page to, his Lordship Ibrahim, J., has quoted with approval the principle laid down by the Madras High Court that the entry with intention to obtain possession contrary to law would not of itself constitute the offence of criminal trespass. In the Privy Council decision reported in 4 D L R 74, cited by Mr. Naziruddin Ahmed, it has been stated Section 427 of the Ceylon Penal Code does not make any trespass a criminal offence: It is confined to cases in which the trespass is committed with a particular intention and the intention specified indicates that the class of trespass to be brought within the criminal law is one calculated to cause a breach of the peace. The section was not intended to provide a cheap and expeditious method for enforcing a civil right. It is to be noted that the section deals with occupation, which is a matter of fact, and not possession which may be actual or constructive and may involve matters of law. The first paragraph of the section comes into operation when a trespasser enters land in the occupation of another with the intent specified, and the second paragraph applies when the entry is lawful but becomes unlawful, e.g., when the entry is made on the invitation of the occupier and there is a refusal to leave when the invitation is withdrawn. But, in either case, there must be an occupier whose occupation is interfered with, and whom it is intended to insult, intimidate or annoy unless the intent is to commit an offence. The section has no application where the fact. of occupation is constant, the only change being in its character as where a tenant holds over after the expiration of his tenancy. Intention which is a state of mind can never be proved as a fact ; it can only be inferred from facts which are proved. It may well be that in doing a particular act a man may have more intentions than one and to bring a case within section 427 of the Ceylon Penal Code the 'intention specified in the section must be the dominant intention. The' mere fact that the accused did anticipate that the man in occupation of the premises would be annoyed would not make him liable to a conviction under section 427 if it is found his dominant in tention was to remain where he was. 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 )t 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." This principle was also reiterated in the latest decision of this Court in this case of Nitya Ranjan Majumdar and others v. Jamini Kumar Das, in which I myself delivered the judgment and held "It is obligatory that there must be an express finding on the part of the Court regarding the intent. Criminal trespass de pends on the intents of the offender and not upon the nature of the act." The lower Appellate Court, it appears, although it affirmed the decision of the trying Magistrate did not come to a finding on the question of intent as required under the law. The c intent found is not one covered by section 44.1 of the Penal Code. Mr: Ghani has asked the Court to consider the judgment as a whole and his contention is that when the Appellate Court has affirmed the decision of the trying Magis trate it means that he has affirmed the finding of the trying Magistrate regarding the intent as well. He quotes from the decision reported in A I R 1944 All. 166, where it has been held "There is no valid reason why the word `finding' should be taken to mean the section of statute alone and why it should not include the conclusion of the Court on facts which constitute the offence, the conclusion of the Court that the accused is not innocent but he is guilty and lastly the conclusion of the Court that the offence falls within a particular section of the statute." it is true that the Appellate Court has also said that the petitioners are guilty under section 448 but he has said that they are guilty because they took the law in their own hands l with intent to dispossess the complainant from the room which is not covered by section

441. There are certain other passage in the judgment from which Mr. Ghani wants me to conclude that the intention was to annoy the owner in occupation but, as I have already stated, there was no express finding on the point and the judgment is defective in that matter. It has been conceded before this Court that the two letters written by the accused to the Magistrate and the letter of the Magistrate to the accused are clearly inadmissible in evidence. The only question is whether the judgment in the Civil Court is admissible in evidence. In this connection, Mr. Naziruddin Ahmed has argued before this Court that the judgment of the Civil Court is clearly inadmissible in evidence whereas Mr. Ghani has contended that it is not in all cases that the judgment of the Civil Court would be irrelevant but there may be cases where the judgment should go into evidence. Mr. Naziruddin Ahmed has referred to the case reported in I L R 25 Lah. 408, but that Full Bench case has only laid down the law "That the finding on certain facts by a Civil Court is not relevant before the Criminal Court under the provisions of sections 40, 41, 42, 43, Indian Evidence Act, when it is called upon to give a finding on the same facts or vice versa." The Judgment of the Full Bench was delivered by Abdur Rahman J., and, at page 414, the learned Judge has referred to certain previous decisions on the point. I quote the relevant portions from his judgment `Led by what I regard to be general considerations, Mr. Justice Shah expressed the view in Markur's case that the prior judgment of a Civil Court in regard to the same fact would be relevant. According to that learned Judge, where the civil liability is determined by a Civil Court, the judgment of that Court would be best evidence of the civil rights of the parties.' That may be so but that was not the question which the learned Judge was called upon to decide. The judgment is silent on the real question that await his decision as to how the finding of the Civil Court would be relevant in a Criminal Court. In that Judgment, the sentence containing the reflection to the effect that the existence of the judgment of the Civil Court was clearly a relevant fact, draws no distinction, if I may say so with great difference, between the opinion or finding contained in the judgment and the existence of the judgment. Mr. justice Heaton concurred with Mr. Justice Shah but chose to put his decision on the ground that it would avoid a conflict of opinion between Civil and Criminal Courts. I do not, however, see what has the administration of justice in a civilised country got‑ to do with the point of relevancy. In fact, the consideration of questions of relevancy can only arise in places where administration of justice bears a proper relation to civilization and in coming to this decision Judges do not wish to place their reliance on any and every fact but only on those facts which are strictly relevant. I must admit that it would have been a good thing to avoid conflict of opinions between the two Courts if it were legally possible so to do but, in the absence of any provision to that effect in the Indian Evidence Act, I cannot see how could this be avoided as long as it is possible for two independent Judges to come to two different findings on the same evidence. As for the Chief Court decision, Mr. Justice Rattigan assumed that in all cases of the kind with which he was dealing the proper tribunal to decide was a Civil Court `and that save for very exceptional reasons the decision of the Civil Court should be accepted as conclusive between the parties.' " His Lordship gives his own conclusion where he states "There is no reason, in my judgment, as to why the decision of the Civil Court, particularly in an action in persona, should be allowed to have that sanctity. There appears to be no sound reason for that view. To hold that when a party has been able to satisfy a Civil Court as to the justice of his claim and has in the result succeeded in obtaining a decree which is final and binding upon the parties, it would not be open to Criminal Courts to go behind the findings of the Civil Court to place the latter without any valid reason in a much higher position than what it actually occupies in the system of administration in this country and to make it master not only of cases which it is called upon to adjudicate but also of cases which it is not called upon to determine and over which it has really no control. The fact is that the issues in the two cases, although based on the same facts, (and strictly speaking even parties in the two proceedings) are not identical and there appears to be no sufficient reason for delaying the proceedings in the Criminal Court, which, unhampered by the Civil Court, is fully competent to decide and . which must be in the nature of things decided speedily." So the findings of the Civil Court are not admissible in evidence for the purpose of the present case. Mr. Ghani has sought to distinguish the case reported in 9 D L R :146 on the ground that in that particular case the charge was defective and even in the judgment of the learned Magistrate there was no finding as to the question of intent. .There is a case where it may be said that the superstructure built o_ n such a shaky foundation cannot stand. But it' is clear that the Appellate Court has not considered the case from the relevant standpoint and it also appears that he, has been influenced by certain documents which are admittedly inadmissible in evidence. In the circumstances, the Rule is made absolute and the judgment of the Appellate Court is set aside and the case is sent back to the Court of Appeal below for a fresh hearing of the appeal in accordance with law and in the light of the observations made above. Case remanded.