JUDGMENT Palok Basu, J.
1. In short, the controversy in all these matters is as to whether if and when a licence to live in a quarter is revoked by a liceneesor, can the licensee be prosecuted for an offence Under Section 448, IPC.
2. Criminal Appeal Nos. 207 of 1981, 208 of 1981, No. 209 of 1981 and No. 210 of 1981 related to matters which, according to the learned counsel for the appellants have become infructuous and on the strength of his statement these are being dismissed as not pressed. These four matters related to acquittals of Ram Lakhan, Jogendra Singh, Sarabjeet Singh and Bhullau. Since they are not being pressed no further discussions on the details of these appeals are necessary.
3. The respondents Ram Lakhan, Ram Bharosey, Sarabjeet, Pati Ram, Ram Dayal, Phool Chand and Chhabi Lal in all these seven appeals were prosecuted on different complaints filed by Somnath Pal alleging himself to be the Vice-Chairman of Radha Swami Sat Singh Sabha, Agra, Under Section 448, IPC but the magistrate, after trial, came to the conclusion that the said offence was not made out as against each respondent in each case and, therefore, after obtaining Special Leave from this Court, the complainant has preferred these seven appeals which are being disposed of by this common judgment.
4. The admitted facts are that Radha Swami Sat Singh Sabha has enough landed property as also very many buildings and quarters. Some of the quarters are permitted to be used by those who are employed in one or the other activity run by the Sabha. Some quarters are permitted to be used by even such persons who are not employed by or connected with the activity of the Sabha. Each of the respondents is trying to allege that they were permitted to live in the quarters allotted to them as a result of the contract of employment whereas in each case the Sabha has set up its plea that nothing as that happened and, in fact, each respondent was granted a licence to live in the respective quarters.
5. Further proved facts are that all the respondents were in the employment of the Sabha though the commencement of each one's employment began at different dates. Similarly all the respondents have lost their jobs at which they took up their matters before the Labour Court for adjudication.
6. When the complaints ripened for decision before the magistrate, the proceedings before the Labour Court were pending. In this regard, the admitted changed facts are that the Labour Court had in the meantime passed an award which was taken to this Court in a writ petition and the finding operating today is that since the Sabha was not an industrial undertaking within the meaning of Industrial Disputes Act, the Labour Court had no power to adjudicate on the issues raised through the respondents.
7. Again, the admitted facts are that each and every respondent had applied for permission to live in a quarter as licensee, that each application was forwarded by the Secretary to the Manager, that after recommendations of , the Manager each application was forwarded to the General Manager, that the General Manager with the concurrence of the Sabha granted licence to each respondent with the specific stipulation in the written-licence form that it will be open to the licensor to terminate the licence without assigning any reason as a result of which such respondent would be liable to hand over vacant possession of the quarter allotted to him.
8. So, therefore, for the consideration of the present appeals in this Court two primary questions will have to be kept in view while scrutinising the evidence of the respective claimants. Firstly, the licensor at no time admits that the licence to live in the quarter was in any way connected with the employment of any of the respondents and that by agreeing to the terms prescribed in the licence form each respondent had bound himself to vacate the quarters as and when his licence was terminated or revoked. Secondly, each and every accused licensee's case is that the quarters were allotted to each of them as a corollary to the contract of employment, the termination of the employment was wrong and illegal. They took the matter to the Labour Court on the supposed thinking that the Labour Court could grant them relief under the Industrial Disputes Act which has been denied to them on the finding that the Sabha is not an industrial undertaking, and when the matter was being tried by the magistrate the claim of each of the licensees was pending before the Labour Court and that their signing on the licence forms was not an act independent of the contract of employment.
9. The other important facts to be noted is that in each case a notice has been issued by the complainant through the contents of which each accused respondent was asked to vacate the quarter in his possession by a specified date. All the respondents in each appeal have denied the receipt of the notice. The issuance and service of the notice will assume importance if it is held ultimately that the second part of the definition of "criminal trespass" as amended by U.P. Act 31 of 1961, is attracted to the facts of the present cases.
10. To begin with the discussion, it may be noted that Section 441, IPC as it stands in the Central enactment will not be attracted in the State of Uttar Pradesh. For a ready reference the said section is being quoted here :--
"441 : Criminal trespass --
Whoever enters into or upon the property in 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 remain there with intent thereby to intimidate, insult or annoy such person, or with intent to commit an offence, Or having entered into or upon such property, whether before or after the coming into force of the Criminal Laws (U. P. Amendment) Act, 1961, with the intention of taking unauthorised possession or making unauthorised use of such property fails to withdraw from such property, and its possession or use when called upon to do so by that another person by notice in writing, duly served upon him, by the date specified in the notice is said to commit "criminal trespass".
11. Sri Swami Dayal, Senior Advocate, Sri Japan Ghosh, and Sri Dayal Saran, Advocates, have been heard on behalf of the appellant and Sri D.S. Tewari has been heard on behalf of the respondent in each case.
12. On behalf of the appellants it was argued that the first part of Section 441, IPC in the present cases, is applicable in the State of Uttar Pradesh and, therefore, even if it is held that the notice was not served or not proved to have been refused, the complaint allegations may be examined from the point of view of making out the offence described in the first part. The learned counsel for the accused-respondents have seriously challenged this proposition. It was argued that the complainant's case also have been that on the facts of the present cases, the second part of Section 441 (as amended by the U.P. Act) was attracted and, therefore, the complainant cannot be permitted to change his stand at this late stage,
13. In view of the rival contentions it will be beneficial to examine as to under which part of Section 441, IPC the case of the accused-respondents may fall.
14. In this connection one aspect requires special mention. Sri D. S. Tewari raised a preliminary objection that the first four complaints having been earlier dismissed by the Magistrate, the filing of the second complaint is barred by the provisions contained in Section 300, Cr. P.C. It may be noted that Crl. Appeals Nos. 207, 208, 209 and 210 of 1981 which were filed after leave applications Under Section 378(4), Cr. P.C. against the orders of acquittal were allowed have been dismissed by this Court on 8-12-1989 on the statement of the learned counsel for the appellant that he does not want to press the same. These leave applications were against the order of the Magistrate dismissing the complaint in exercise of powers Under Section 256(1), Cr. P.C. for non-appearance of the complainant. The basis of the argument of Sri Tewari is that the matters then proceeded as a summons case, which procedure has been followed in the present cases also and, therefore, the earlier order will amount to acquittal of the accused and the said Criminal appeals having been dismissed the bar of a second trial on the same charge as envisaged by Section 300, Cr. P.C. will come into play. The Court's attention was drawn to the fact that specific objection to this effect was raised before the Magistrate but he dismissed the same for two reasons. Firstly, the Special Leave Applications were pending in this Court and, secondly, since the offence of Criminal trespass was a continuing one, there was no bar in bringing in a fresh complaint after fresh notice (Underline is mine).
15. There is no force in the preliminary objection. There can be no doubt that criminal trespass is a continuing offence. In any case, after the State amendment which practically re-enacts Section 441 of the Central Act, the offence of trespass has to be treated as a continuing offence. Moreover, admittedly the earlier complaints were dismissed because the complainant was absent. The Magistrate had not gone into the merits of the case. The Magistrate took the view that the case of the complainant depended upon the service of notice. In fact, that was the objection on behalf of the complainant to the application which was moved by the accused. They raised a question that being a continuing offence and the second complaint being based upon service of a fresh notice, the dismissal of the four criminal appeals by this Court against these acquittal orders cannot be taken as a bar within the meaning of Section 300, Cr. P.C. It cannot, therefore, be accepted that the dismissal of the said appeals will bar the proceedings in the second complaint which was initiated on the strength of second fresh notice. As noted above it is the said fresh notice which gave rise to the complaint case which is now the subject matter of these appeals.
16. Moreover, in disposing of the objections of the respondents about bar of Section 300, Cr. P.C. the magistrate had come out with a well-reasoned order as early as on 12-6-1981. The accused have not challenged the said order in any suitable proceedings and, therefore, the said order has become final between the parties. In view of this discussion there is no force in the preliminary objection which is hereby rejected.
17. But that is not the end of the matter. The argument which is accepted at times to uphold one plea of a particular party, strangely enough, may go against it while deciding another plea raised by it. Under the second part of Section 441, IPC it was imperative for the complainant to serve a notice calling upon the 'trespasser' to vacate the accommodation by a fixed date if the trespasser does not withdraw by that date, he can be prosecuted and, therefore, reliance of the complainant upon his having served a notice to vacate on the accused for the second time, giving another date as compared to the date given in the first notice, thereby treating the offence of criminal trespass a continuing one within the meaning of second clause of Section 441, IPC should normally preclude the complainant to resile from this stand all over again and try to argue before this Court that his case would nonetheless be covered by the first part of Section 441, IPC. It should not be permissible to permit the complainant to blow hot and cold together. It seems strange that he should rely upon the notice to save the second complaint from being barred by the provisions of Section 300, Cr. P.C. and he proposes to denounce the said notice so as to bring the case within the first part of Section 441, IPC. Perhaps this inherent contradiction escaped the attention when the complainant's case was presented before the court. It is, therefore, hereby held without hesitation that the complainant should confine his case to the second part of Section 441, IPC and to permit him to do otherwise will result in serious injustice to the defence of the accused respondents.
18. From the evidence of P. W. 4 Sri P.S. Kaushal, Advocate, it is apparent that he was a junior to Sri S.K. Rawat, advocate who had issued the notice on behalf of the complainant, which has been proved as Ex. Ka-16. Nothing has been brought out in his cross-examination to discredit his testimony. The contents of the notice, therefore, stand fully proved. There now remains the question of its service. He says that a registered envelope had come to his senior's chamber with some endorsement purporting to be read as "refused". When was it received, who received it : who made the endorsement : who was the postman when it taken for service on the respondent are matters which are conspicuously absent. No postman or anyone else from the Postal Department has been examined. Even if for the sake of argument it be assumed that the endorsement may be presumed to have been made by an official, it must be noted at once that the accused has been rebutting it right from the very beginning. His statement in rebuttal that no notice was ever sent to him at his address and that he had never refused it is a positive statement which is to be preferred as compared to the so-called official act which is not so stated by any witness of the said Department or office. Therefore, it has to be held that the notice allegedly sent to the respondent was not proved to have been served upon him. The prosecution, therefore has failed to make out that the respondent will be guilty of 'criminal trespass' as defined in the second part of Section 441 I.P.C. and punishable Under Section 447/448, IPC.
19. In the case of D. P. Titus v. L.W. Lyall reported in 1981 Cri LJ 68 this Court has held :
"............where the entry was lawful but was said to have been converted into criminal trespass within the meaning of Section 441, IPC as amended by U.P. Act 31 of 1961, the continuance should be shown to be with the intention of taking unauthorised possession or making unauthorised use of such property and that the occupant failed to quit on written notice to do so by the date specified therein."
20. In the case of Rashid Ahmad v. Smt. Rashidan reported in 1980 ALJ 939 it was held by this Court as under (at page 940) :--
"Section 441 as amended in U.P., however, says that a 'Civil trespass' would become a "criminal trespass" even though the trespasser had entered into possession of the property merely with the intention of taking unauthorised possession or making unauthorised use of such property if the trespasser failed to withdraw from such property, or its possession or use when called upon to do so by a notice in writing by the person dispossessed."
21-23. In case of Man Singh v. State reported in 1979 Cri LJ 1433 it has been held by this Court as under :--
"Notice as contemplated Under Section 441, IPC non-specification of the date by which the accused should vacate the land notice not in confirmity with Section 441. Conviction of criminal trespass is not sustainable."
24. In the case of Mahabir Prasad and Anr. v. State and Anr. reported in 1976 Cri LJ 245 it has been held as under :--
"Section 441 provides for a civil trespass converted into a criminal trespass on the service of notice on the trespasser to vacate the property. Hence the notice had not been served on the accused the accused could not be convicted Under Section 447, I.P.C."
25. It was vehemently argued on behalf of the appellant that irrespective of the question of service of notice on the respondent the evidence led makes out an offence which may be covered within the meaning of first part of Section 441, IPC as amended by the State of U.P. and, therefore, conviction could have been recorded by the trial court on the evidence produced. It was brought to the notice that the claim petition of the accused-respondent before the labour court having already been dismissed there was no bona fide claim on his part vis-a-vis retaining the disputed quarter. In this view of the matter it was argued that as per the terms contained in the licence deed and the facts preceding the issuing of the notice till the date of filing of the complaint the only inference that could be drawn was that the respondents were continuing to commit criminal trespass because their very retention of the accommodation had been causing annoyance to the Sabha and its officials. The statement of P.W. 2 namely Subedar Singh was relied upon in this respect and it was argued that the statement of Prem Prakash (P.W. 3) and Somnath Pal (P.W. 4) also go to indicate the action of the respondents in living in the quarter was causing annoyance.
26. In other words, the argument proceeded that the knowledge of the fact that the licence issued to the respondent vide the licence deed (Ex. Ka-4) Was more than enough intimation to the accused-respondent that he has no more right to continue in possession of the quarter and in spite of it, if he lived therein, it must be presumed that he is consciously causing annoyance. This argument has to be rejected for a variety of reasons discussed hereinafter. When the prosecution case rests upon the fact of an entry alone which has been made with the intent to commit an offence or to intimidate, insult or annoy, or when the prosecution's case rests upon the allegation that the accused unlawfully remains in the said property with the intent thereby to intimidate, insult or annoy it becomes the duty of the prosecution to prove by cogent evidence that the said intimidation, insult or annoyance becomes resultant of any voluntary act of the accused. It will be laying down a dangerous proposition if it is held that an unilateral action of a licensor in terminating the licence of the licensee itself should be interpreted as causing annoyance to the licensor because of retention of the property by the licensee in spite of the said revocation of the licence. Who does not know that when a landlord or a licensor wants his tenant or licensee to vacate and the latter does not oblige, the landlord or the licensor will be annoyed or insulted? But what is the action of the accused in so doing? He continues to remain just as before. Therefore, there is no intent on his part to cause annoyance or insult etc. The complainant cannot be permitted to say that due to one of his unilateral act the resultant annoyance, if any, is due to the accused's retaining the property. In this view of the matter this argument of the learned counsel for the appellants has to be rejected on the face of it.
27. It is true that where a licensor terminates or revokes the licence or where a lessor terminates the lease of the lessee, the licensee or the lessee, as the case may be, can be held guilty of civil trespass, but certainly on these facts alone, criminal trespass would not be made out.
28. In the case of Babu Ram v. State reported in 1971 ALJ 4 it was held that :
"This Criminal intent, in fact, distinguishes the offence of 'criminal trespass' from a mere 'civil trespass' for which remedy lies by resort to civil litigation......... A plea of bona fide claim of right to possess property in a defence to a prosecution for 'criminal trespass' could be said to be similar to a plea of an exception from criminal liability."
29. In the case of Jawanmal v. Smt. Bhanwari and Ors. reported in AIR 1958 Raj 214 : 1958 Cri LJ 1099 it has been held as under (at page Raj 216; AIR 1958) :
"In a case under the section where the accused claims that he had entered under a bona fide claim of right the first thing which the court has to see is whether the claim is bona fide......"
30. In the case of Sinnasamy v. King reported in 1951 Appeal Case 83, the Privy Council interpreting Section 427 of the Penal Code as applicable in Ceylon, has held as under :
"The 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 foreseen consequence of the entry is annoyance to the occupant. To establish criminal trespass the prosecution must prove that a 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."
31. In the case of Smt. Mathri v. State of Punjab reported in AIR 1964 SC 986 : (1964) (2) Cr LJ 57 is has been observed by the Supreme Court as under (at page SC 991; AIR 1964) :
"The correct position in law may, in our opinion be stated thus : In order to establish that the entry on the property was with intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation of 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 persons entering that in deciding whether aim of the entry was the causing of such annoyance, intimidation or insult, the court has to consider all the relevant circumstances including presence of knowledge that its natural consequence would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry."
32. In view of the aforesaid discussion it cannot be said that the respondent was intending to cause annoyance or insult to the appellant by his very fact of retaining possession of the quarter even after having come to know that his licence stood terminated or revoked.
33. Before parting with the case only one point may be adverted to, and that relates to the claim of the accused that his matter of employment was intrinsically connected with the permission to live in the quarters allotted to him. It is admitted position that the accused had taken the matter to the Labour court where it remained pending for several years. A writ petition was to this Court at the behest of the complainant that these proceedings were not in accordance with law as the Sabha would not be termed as 'industrial undertaking' or 'industrial organisation' within the meaning of U.P. Industrial Disputes Act. It is notable that the accused had been taking the plea of linking up the accommodation with the employment though the complainant emphasised that the permission to live in the quarter as licensee was, in no way, connected with the right of his employment.
34. In this connection the trial court relying upon the decision of Kanwal Sood v. Nawal Kishore (AIR 1983 SC 159 (equivalent to 1983 Cr. LJ 173 : 1983 Cri L.J 373. The Supreme Court has held as under (at page 175; 1983 Cri LJ).
"In order to satisfy the conditions of Section 441 it must be established that the widow entered in possession over the premises with intent to commit an offence. A bare perusal of the complaint makes it abundantly clear that there is absolutely no allegation about the intention of the widow to commit any offence or to intimidate, insult or annoy any person in possession. The appellant-widow may be fondly thinking that she has a right to occupy the premises even after the death of S' (testator)".
35. In the case of Kanwal Sood, the U.P. amendment was noted by the Supreme Court. The argument of the learned counsel for the appellants relying upon the said case was that in the present complaint cases there is specific averment/allegation that the accused-respondents were living/retaining possession with the intent to insult and annoy the complainant. It was thus argued that notwithstanding the fact that the accused were linking up possession with their employment the fact that the mere living in the quarter was causing annoyance, should be interpreted to bring the case within the meaning of the four corners of first part of Section 441, I.P.C.
36. On the other hand, reliance was placed by the accused's counsel upon the decision of Punjab National Bank v. A.I.P. N.B.E. Federation reported in AIR 1960 SC 160 wherein it has been held as under (at page (176)):-
" Where by reason of their participating in a pen-down strike, the employees' entry into the premises of the employer is unlawful or their continuance in the premises becomes unlawful, but the sole intention of the employees obviously is to put pressure on the employer to concede the demands, then, even the strikers might know the strike may annoy or insult the officers, it is difficult to hold that such knowledge would necessarily lead to the inference of intention requisite for constituting criminal trespass."
37. This decision is complete answer to the arguments advanced on behalf of the appellants. The respondents cannot be saddled with the intent to cause annoyance to the complainant by the mere fact of living in the quarter even if it be held that they had knowledge of revoking the licence to live therein. For the reasons stated above this distinction is a cry in the wilderness for, what should have been intended resultant of an independent action of the accused, should not be permitted to be inferred if such a resultant comes into being at a unilateral action of the complainant.
38. For the reasons discussed above there is no force in these appeals which are hereby dismissed. This judgment will govern the other connected appeals also.
39. As regards Criminal Revision No. 578 of 1985 the facts and grounds are same and similar. The only difference in this case is that the police had submitted a charge sheet Under Section 448, IPC the magistrate tried the said case also along with the aforesaid complaint cases and recorded an acquittal. The additional fact is that the State of U.P. has not filed any criminal appeal but has acquiesced to the order of acquittal. The complainant has filed this revision against the aforesaid acquittal.
40. For the reasons stated in the connected complaint cases this revision too is without any force and is hereby dismissed.