P L D 1965 Supreme Court 640 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, is directed against the judgment and order of a learned Single Judge of the High Court of East Pakistan in a criminal revisional petition. The appellant was convicted along with another person under section 447 of the Penal Code and sentenced to pay a fine of Rs. 100 by a Magistrate of the First Class at Chittagong on the complaint of one Mrs. Atika Yunus. The land alleged to have been trespassed upon was a hill comprising some 25 kanis of land being R. S. Plot No. 541 of Jote No. 138 at Paschim Sholashahar in Chittagong.. The complainant claimed that her late husband Mr. M. Yunus had purchased the same by a registered deed on the 5th of March 1951, and possessed it during his life‑time. Since his death the complainant had been in possession thereof in khas and had actually constructed a motorable path on the western side of the hill to erect a building thereon. On the 30th of December 1960, however, at about 7‑30 in the morning her Durban one Abdus Salam found that the appellant and several others trespassed upon the said land and, in spite of his protests, began erecting a mud‑wall thereon. He, therefore, informed his employer and then went to Sholashahar Police Station to fetch the police. The police went there immediately and found the complainant present, who submitted a written first information report at the spot at about 10 a.m. This was forwarded to Panchalaish Police Station and registered there at 1‑00 p.m. The police on arrival at the spot found that the mud‑wall under construction had been raised to a height of 2 cubits and the bamboo frame of the roofing was also under preparation. The wall was found both dry and wet. The police seized some of the bamboo frames of the roofing and some other articles being utilised for the purposes of the construction. The police also arrested the appellant and his companions and challaned them under section

447. At the trial the complainant examined herself, her Durban and some of her workers who, it is said, were engaged at that time in erecting pillars on the boundary of the land for purposes of fixing a barbed wire fencing. The complainant also examined the person from whom the land was purchased by her husband. He gave evidence to the effect that he had delivered possession of the land to Mr. Yunus. The others also deposed that the complainant was in possession of the land and that there was no mud‑but on the plot at any time before the appellant and his workmen started constructing the same. It was suggested to the said vendor Kazi Abdul Haque on behalf of the appellant in cross‑examination that the mother of the appellant had purchased the disputed land in his benami name and also paid the purchase price. He, however, repudiated this suggestion, In his own examination under section 342 the appellant Jan simply denied that there was any occurrence, as alleged by the complainant, on the land in dispute which he had been possessing from a long time. He was definitely asked whether he had Ha illegally trespassed on the land of the complainant by building a Ra house thereon forcibly and thus annoyed her and put her to loss. The only answer which he made to this question was that he was innocent. His co‑accused had, however admitted that they were building a house on the plot, as stated by the complainant, at the request of the present appellant. No defence evidence was, however, called in support of the defence case and, therefore, the defence claim that the land had been purchased in the benami of Kazi Abdul Haque by the mother of the appellant remained unsubstantiated. The documentary evidence adduced on behalf of the complainant, on the other hand, clearly established her title and showed that the name of Md. Yunus had first been mutated in the register of mutation by an order of the Khas Mahal Circle Officer Sadar and that after his death the name of his wife the complainant, had been mutated therein. The fact that the appellant and his labourers had con structed a but on the 30th of December 1960, on the disputed land, in spite of the protests of Abdus Salam, the Durban of the complainant, was also abundantly established the oral testimony of as many as 5 witnesses. Their evident: was also corroborated by the Police Officer, who actually seize i the building materials at the spot and arrested the appellant there. On this evidence the trial Magistrate convicted the appellant anti his co‑accused but recorded no specific finding as to the intention with which the offence was committed. He only stated that "1 conclude that the prosecution has proved its case beyond the shadow of any reasonable doubt". It appears that during the pendency of this trial the appellant filed a civil suit in the Court of a Munsif at Chittagong for declaration of title and obtained an order of ad‑interim injunction on the 1st of February 1961, for restraining the complainant from disturbing his possession or making any construction upon the said land. This order was made absolute on the 4th of April 1961, and then an attempt was made to have the criminal proceed ings stayed but this attempt failed both before the Magistrate and before the Sessions Judge. According to the complainant this order of ad‑interim injunction had also "since been vacated." From the order of conviction passed by the Magistrate an appeal was taken to the Sessions Judge. The Additional Sessions Judge of Chittagong, who heard the appeal, confirmed the findings of the trial Court as to the possession of the complainant and the construction of the but thereon by the appellant and his co‑accused, in spite of the protests of the Durban and maintained the convictions. One of the points pressed before the learned Sessions Judge was that the conviction could not be sustained in law, as no finding had been recorded by the trial Magistrate regarding the criminal intent of the accused persons making the alleged trespass. The Sessions Court whilst dealing with this point observed that although no specific finding had been recorded by the trial Court "yet a reading of the judgment will show that the finding as to criminal intention is there. Here the criminal intention on the part of the accused persons is apparent from their acts in erecting a mud‑walled but on the disputed land on the date of the occurrence. The intention was to dispossess the complainant from the disputed land illegally. So the intention to commit an offence by making such entry was there and, as such, the act of the accused comes within the purview of section 447 of the Pakistan Penal Code." The appellant alone went up to the High Court in revision and again it was argued in the High Court that in the absence of a specific finding as to the intention with which the alleged trespasse was committed the conviction could not be maintained. The High Court dealt with this matter as follows :‑ "The evidence clearly indicates that the accused began the construction on the land in dispute in spite of protests of the Darwan. Having regard to the facts of this case I am unable to agree with the learned Advocate .for the petitioner that the criminal intention mentioned in section 441 has not been estab lished in this case. The petitioner knew that the land was in the undisputed possession of P. W. 1 Atika Yunus and he entered illegally into that land and started construction of huts in spite of the protests of her Darwan. In that view of the matter the intention to annoy P. W. 1, in my view, has been clearly established. I, therefore, find no substance in this contention." Leave was granted in this case to consider whether the view taken by the High Court is consistent with the earlier decisions of the same High Court wherein it appears to have been held that entry merely with the intent to take possession of or to dispossess somebody is not an entry with any one of the intents mentioned in section 441 of the Penal Code. Learned counsel appearing in support of this appeal has strenuously contended that in order to convict under section 447 of the Penal Code it must be established that the dominant intent of the persons so convicted was either to commit an offence or to intimidate, insult or annoy any person in possession of the property trespassed upon. A mere knowledge that any one of these may be the natural consequence of the act is not enough and certainly an entry with the intention of dispossessing another person even unlawfully is not sufficient to bring the entry within the mischief of this section. In support of this. contention reliance has been placed by the learned counsel upon three decisions of the East Pakistan High Court and one of the Judicial Committee of the Privy Council. These are in the case of Arjad Ali and another v. The Crown (3DLR13), Nitya Ranjan Majumdar and others v. Jamini Kumar Das (9DLR446) and Rahmatullah and another v. The State (10 D L R 143). The last two decisions are by the same learned Judge sitting singly in which he has substantially agreed with the view taken in the first case which is a decision of a Division Bench. It was observed in the latter case that : "Every unlawful entry causes annoyance and in every case it may be presumed that the trespasser had the knowledge that the entry would cause annoyance. In the Penal Code a distinction has all throughout been made between intention and knowledge. Where knowledge is an ingredient of the offence it would have been specifically mentioned in the section. There is no mention of knowledge in section

441. The omission is intentional. The scheme of the section is not to penalise entry with knowledge that it would cause annoyance." In that case too no specific finding had been recorded by the trial Court when convicting the accused persons under section 448 of the Penal Code. The accused persons there claimed that they had purchased the but from the complainant and had in fact taken possession of it in pursuance of their purchase. The High Court set aside their conviction holding that the section does not penalise unlawful entry with any intent other than those mentioned in section 441, such as, the mere intent to take possession. The decision of the Privy Council is in the case of Sinasamy Selvanayagam v. The King (P L D 1950 P C 119). That was a case from Ceylon under section 427 of the Ceylon Penal Code which is in terms identical with ‑section 441 of our own Code. The facts of the case were that the Government after giving notice of its intention to take possession of certain lands belonging to a particular estate for a village expansion scheme directed its land officer to take possession of the said estate, and the said officer certified that he had done so. Upon such possession being taken the land vested in the Government, but for the time being the Government continued to employ the labour force then living on the estate so taken over. ~ The appellant was a member of the said labour‑ force. But since the object of the acquisition was to place the estate in possession of certain selected landless residents from other villages to work‑the estate on a co‑operative basis, the Government appointed a Superintendent for the said estate and then the Assistant Government Agent selected some 243 such tenants to be settled on the estate. After the selection had been made the Government Agent directed the Superintendent to give notice to all other labourers on the estate terminating their employment and asking them to vacate the quarters in their occupation. The appellant was in occupation of two rooms in the labour lines on the said estate. He claimed that his father and grandfather had also occupied the said rooms before him, and in this way he and his ancestors had been in occupation thereof for some 70 years. He had, therefore, acquired a right to stay on the estate, since for generations he and his family had lived there. He, accordingly, refused to vacate the same. A complaint was then made against him alleging that he had committed criminal trespass by unlawfully continuing .to remain on the estate property, which vested in the Government and was in occupation of the Superintendent, with intent thereby "to annoy the said" Superintendent. The appellant was convicted by the trial Court and his conviction was upheld on appeal, but upon a consideration of the entire evidence the judicial Committee came to the following conclusions :‑ (1) that the Superintendent, who is alleged to have been annoyed, was not a person who could be regarded as a person in occupation of the rooms in which the appellant lived; (2) that there was no satisfactory evidence as to the character of the appellant's occupation; and (3) that the dominant intention of the appellant was to remain on the estate where he and his family lived for genera tions and not to find himself homeless. , Upon these findings the Judicial Committee was of the view that section 427 of the Ceylon Penal Code had no application "where the fact of occupation is constant, the only change being in its character" and, as such; in the case before them "as the physical occupation of the two rooms at the material dates was of the appellant" he could not be held to have intended to "annoy himself". The contention of the prosecution that the appellant held the rooms as a servant only was found to have not been established by satisfactory evidence. The conviction was, accordingly, set aside but in the opinion of the Board delivered by Sir John Beaumont it was observed :‑ "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." Learned counsel appearing for the appellant has placed strong reliance on these observations and has contended that in the present case too there was no evidence to prove as to what was the dominant intent of the appellant. He points out that in the present case the trial Court gave no finding as to the intent ; the appellate Court only speculated ‑that the intention was to dispossess the complainant illegally and thereby to commit an offence but the High Court inferred that by illegally entering upon the land knowing the same to be in the undisputed possession of the complainant and starting construction thereon in spite of the protests of the darwan the accused clearly intended to annoy the complainant. Thus, since from the same facts different inferences have been drawn by different Courts, it is difficult to determine as to which of these was the dominant intention. The failure of the Magistrate to record a specific finding as to the intent cannot, of course, be supported. It was clearly his duty to do so but this does not by itself necessarily render the 8 conviction bad if the evidence on the record is sufficient to form the basis of such a finding. It is also, no doubt, true that mere knowledge that a particular consequence might follow will not be sufficient to C bring a trespass within the mischief of section 441 of the Pakistani Penal Code. This section provides as follows :‑ "

441. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit `criminal trespass.' " This clearly requires that the act must be done with either one or the other of the intents mentioned therein. In this respect section 441 is somewhat different from some of the other sections of Penal Code, e.g. sections 166, 167, 194, 297, 299, 350, 366, 367, 425, 499, 504 and 505, in all of which doing the act with intent and doing it with a knowledge of the consequences are both made punishable. The contrast in the language is not without significance. It is also true that knowledge is not the same thing as intent. `Intent' is stronger than `knowledge'. But even so it seems to us to be necessary to bear in mind that there; can be no direct proof of the intent. It must in all cases be matter of inference, from the nature of the act committed and the circumstances in which it is committed. Therefore, it may even be presumed from acts which are reasonably susceptible of only one interpretation or from acts which with practical certainty, lead to that inference. This is, however, a matter of evidence and, as such, the rule of evidence that a person intends the natural and inevitable consequences of his own acts is equally applicable. The Court may, if it finds that the trespasser knew that his act was practically certain in the natural course of events to cause insult or annoyance to the owner of the property, infer that the intent was to insult or annoy. It is not bound to accept the statement of the accused as to his intention but the accused may by proving an independent object of the trespass dislodge this inference. Sir John Beaumont did not, in our opinion, lay down any different principle, for at another portion of his opinion in the Ceylon case he himself observes that "intention, which is a state of mind, can never be proved as a fact; it can only be inferred from facts which are proved", and that entry upon a mere claim of right would not be sufficient to protect the trespasser, if the claim of right was "a mere cloak to .cover the real intent" or merely a "subsidiary intent." It is interesting to note that in an earlier case of Mrs. D' Cunha and two others v. Emperor (59 Born. 738), Sir John Beaumont had himself occasion to deal with this question as Chief Justice of the Bombay High Court and in his judgment in that case he relied upon certain dicta of Lord Esher M. R. in the case of Ex parte : Mercer In Re, Wise ((1886) 17 Q B D 290) laying down the rule to be applied in ascertaining the intention of a person. It is to this effect :‑ "If you want to find out the intention in a man's mind, of course you cannot look into his mind, but, if circumstances are proved from which you believe that he had a particular intention, you infer as a matter of fact that he had that intention. No doubt, in coming to a particular .conclusion as. to the intention in a man's mind, you should take into account the necessary result of the acts which he has done. I do not use the words `necessary result' metaphysically, but in their ordinary business sense, and of course, if there was nothing to the contrary, you would come to the conclusion that the man did intend the necessary result of his acts. But, if other circumstances make you believe that the man did not intend, to do that which you are asked to find that he did intend, to say that, because that was the necessary result of what he did, you must find, contrary to the other evidence, that he did actually intend to do it, is to ask one to find that to be a fact which one really believes to be untrue in fact." No case has been cited before us which lays down a different rule for ascertaining the intention of a person. . Applying the rule laid down by Lord Esher M. R. to the case now before us we are unable to say that ,the Courts below were wrong in drawing the inference that the intention of the appellant in the facts and circumstances established was to annoy F the complainant, who had been found by all the Courts below to have been in possession of the land on the relevant date to the knowledge of the appellant, who was a resident of the locality. It has to be remembered that the evidence in this case, which has been accepted by the Courts below, established that since 1951 the land was in the possession of the complainant's husband and her own possession since the death of her husband. They put up boundary pillars and barbed wire fencing around the plot and posted a durwan there. The name of her husband was mutated in the records of the Khas Mahal in pursuance of an order (Exh. 5) of the Khas Mahal Circle Officer. After her husband's death she again got her own name mutated. The complainant also proved her husband's purchase by producing her own document of title and examining the vendor. This evidence does not support the case of the appellant. The complainant had posted a Durban on the plot and at the relevant time actually her labourers were engaged in repairing the boundary pillars and fixing the barbed wire fencing on the land. The appellant, who resided at the bottom of the hill, could not possibly have been unaware of these facts. Notwithstanding this knowledge of the complainant's possession of the land since her husband's purchase in 1951, he came upon the land and in spite of the protests of the Durwan started constructing the mud‑but thereon. It is said that he did so in assertion of a bona fide claim of right but this was only his assertion. No evidence was adduced to support this claim. But the nature of the claim, as suggested to some of the witnesses in cross‑examination, appears to be that the person from whom the complainant's husband bought was a benamdar of the appellant. The vendor who was examined as a witness in the case denied this but it was suggested to him that the land, which originally belonged to the appellant's father was sold by auction for arrears of revenue and was purchased by one Anukul Behari Das. The latter in his turn sold it to the appellant in the benami name of the vendor of the complainant's husband. Further that the said Anukul Behari Das had filed a written statement before the Khas Mahal Circle Officer (Sadar) in Mutation Case No. 19 of 1952/53 admitting this fact. Kazi Abdul Haque, the vendor, of course, denied this but no copy of such a written statement was filed to substantiate this suggestion. In the circumstances, this story was rightly disbelieved and the claim of right thus became in the words of Sir John Beaumont "a mere cloak to cover the real intent" arid the mere assertion of such a claim by the appellant could not displace the inference that in the natural course of events the illegal entry of the appellant had been made with the intention of causing annoyance to the complainant, for, that would be as a mater of practical certainty the consequence of such an entry. It is lastly urged that since the appellant has actually filed a suit for the establishment of his title to the land the claim of right was a bona fide one but this cannot advance his case, for, the suit was filed after the present prosecution had commenced and may well have been as a counterblast to this prosecution. Indeed, as earlier stated, an unsuccessful attempt was also made to stay the prosecution on this account. We do, not, however, wish to say anything with regard to this suit, as the same is still pending. The contention; therefore, that the entry was really to take possession does not appear to us to have been established. This is not, as such, a case in which only a mere knowledge that the trespass is likely to cause insult or annoyance to the complainant can be imputed to the appellant. In the facts of the present case it seems practically certain that annoyance and intimidation to the complainant was the inevitable consequence which the appellant intended. In these circumstances, we are of the opinion that this appeal must fail and is, accordingly, dismissed. B. Z. KAIKAUS, J.‑I agree with my learned brother Hamoodur Rahman, and I am adding these few words only to bring out an aspect of the matter which struck me at the time when the case was being heard, that is, its aspect in relation to the right of private defence. It will be observed that section 97 which creates the right of private defence provides for such right only against acts which amount to offences. There is no right of private defence of property against an act which does not amount to an offence. If it were to be held that a person whose sole object is to dispossess another and who has no intention of annoying another (in fact he may be very happy if the person he is dispossessing is not annoyed) though he knows he will cause annoyance, does not commit an offence the result would be strange. Suppose there are two claimants to a property, A and B, and A is in possession of it. B enters the property without any intention to annoy A, but just in order to take possession of it. Now A cannot turn him out. In fact A can neither touch him nor cause hurt to him. If he does anything of that kind he will be guilty either of assault or of causing hurt, for using‑force or causing hurt is an offence unless there be an exception applicable and the right of private defence would not be available. A person who is in possession may be absent from the property and his rival claimant may come and enter into possession ; he may actually lock it from inside. But whether he locks it or not there would be no method of turning him out if his intention is just to dispossess his rival and not to annoy him. The person in possession will have to file a suit if he wants to eject him, but if after years of litigation he gets a decree and the decree is executed he will gain no advantage for the next day again the opposite‑party can enter the property and the same process will have to be repeated. If the party in possession were to keep a chaukidar, the chaukidar cannot prevent the opposite‑party from entering the property, for the entry not being an offence the act of the chaukidar in prevent ing him from entering would be an offence, it being an offence to prevent any person from proceeding in any direction. There may even be a case where the person who is entering into possession or disturbing the possession of another really may be anxious that the person in possession is not annoyed. B who is trying to dispossess A may be A's very dear friend, but he may be the employee of a rival claimant to the property in possession of A and his employer may have ordered him to dispossess his dear friend. In that case as it is not possible to attribute to him the intention of causing annoyance, (if we hold that intention here means the object and if we do not hold that an act done with knowledge of causing annoyance should also be regarded as an act done with the intention of causing annoyance) the party whose possession is being interfered with would practically have no remedy under the law, the civil remedy as explained above being almost useless for even after execution of the decree the very next day the property can be occupied again. I would, therefore, be inclined to hold that although it be not the object of a person to cause annoyance, once he knows annoyance is going to be caused he should, while we are interpreting section 441, P. P. C. be regarded as having the intention to cause annoyance etc. A. H. Appeal dismissed.