Balawandaram v. Heenkende.
1942Present: Soertsz J.
BALAWANDARAM v. HEENKENDE.
713—M. C. Teldeniya 515.
Criminal trespass—Entry onjpath on which accused has right of way—Criminalintimidation—Utterance of threats to person absent—Threats conveyed toperson—Penal Code, ss. 433 and. 486.
Entry.on a land in the occupation of a person with intent to intimidate,insult or annoy is criminal trespass, even though the place entered be apath on the land over which the accused has a right of way.
Utterance of threats, designed to intimate a person, who is notpresent, constitutes criminal intimidation, if the threats were broughtto the knowledge of that person. •
Sinnappa v. Vallipuram et al. (4 C. W. R. 231), followed.
A PPEAL from a conviction by the Magistrate of Teldeniya.
R. L. Pereira, K.C. (with him A. D. J. Gunewardene), for theaccused, appellant
H. V. Perera, K.C. (with him S. J. C. Kadirgamar), for the complainant,respondent
■ 40 JV. L. R.217 –
SOERTSZ J.—Balawandaram v. Heenkende.
June 26, 1942. Soertsz J.—
Counsel for the appellant made two submissions in regard to theconvictions entered in this case under sections 433 and 486 of the PenalCode. He submitted that the conviction under section 433, for criminaltrespass, was wrong inasmuch as the appellant had done nothing morethan he had been wont to do when he made use of the footpath overthe complainant’s land to go to and come from his own land which adjoinsthat of the complainant Counsel contended that by reason of such anuser of the footpath the appellant could not be said to have entered uponland in the occupation of the complainant and that, therefore, the chargeor criminal trespass failed in limine, regardless of the question of theintention of the appellant when he used the footpath. Next, in regardto the conviction under section 486, for criminal intimidation, Counselsubmitted that the threats spoken to by the witnesses were utteredin the absence of the complainant .and that for that reason it could notbe said that the offence contemplated by section 486 of the Penal Codewas constituted. In other words, the contention was that directintimidation is what section 486 has in view.
Counsel for the respondent maintained that land belonging to A, overwhich B has a right of way, is none the less land in the occupation of Aand that if B’s user of that right of way on a particular occasion is moti-vated by an intention to intimidate, insult or annoy A, then his offence ofcriminal trespass is complete. He made the further submission thatin view of the appellant’s undertaking in an earlier case, that he wouldnot use the path pending certain litigation, there was not, in fact, aright of way for the appellant over the land. In regard to the chargeof intimidation,, respondent’s Counsel argued that the offence was completeif threats to A are uttered in the presence of B with the intention thatB should convey to A that such threats were uttered, regardless of thequestion whether in point of fact B conveyed that matter to A or not.Alternatively, Counsel submitted that the offence was complete themoment B informed A of the threats that had been uttered.
The questions that arise on these conflicting contentions must beexamined in the light of the established facts of this case. These factsas found by the Magistrate are that the right of way in question wasdisputed by the complainant who charged the appellant in April, 1941,with criminal trespass. That case was settled, the respondent under-taking to institute a civil case within a month to have this disputedecided, and the appellant on his side undertaking not to use the right ofway in the meantime. The evidence shows that by way of puttingtemptation to use this footpath in the interval out of the appellant’sway, the respondent barred access to the path by fixing barbed wireacross the entrances and provided himself with access by means of agate at one entrance. This gate was secured with wire which had to beunfastened whenever entrance to the respondent’s land was sought.Between the day the case was settled and the day of the offence chargedin the case, there does not appear to have been any use made of thisfootpath by the respondent. The day of the alleged offences happensto be the day on which the respondent went to Kandy and institutedthe civil case, and it was on the very day—whether by coincidence or
SOERTSZ J.—Balawandaram v. Heenkende.
because the appellant had come to know' what the respondent was engagedin on this day ; it is not clear which, although I feel disposed to thinkthat the appellant had come to know that the respondent had goneto Kandy to file the case—that the appellant broke the gate and enteredthe respondent’s land, and went in the direction of his house on theadjoining land. He was accompanied by another man and as he went,he said, “I will allow the Tamil Pariah to build a gate ”, and he indulgedin abuse. This happened in the absence of the respondent. But afterthe respondent’s return, the appellant again went along the path,accompanied by the other man and carrying a gun. He stood at thegate and once more indulged in abuse. The respondent sent his watcherto ascertain what all this meant and the appellant, who was still on thisland, attempted to prod the watcher with his gun, saying, “ where is thatPariah Mudalali ”? He once more found his way through the gate,threatening to shoot the watcher, when he asked him why he was breakingthrough the gate, and went to a boutique near by and “ had a row ”with another employee of the respondent. On that occasion, he declaredthat he would shoot the Mudalali (that is the respondent). The watcherran up and told the respondent of the threat and the respondent straight-away locked himself in the store room and spent an anxious and dinner-less vigil. Next morning he went to the Peace Officer and made hiscomplaint.
On these facts, it is clear that by the appellant’s own undertaking therespondent’s land was unqualifiedly in the respondent’s occupationon the day in question. But even assuming that notwithstanding thatundertaking given by the appellant he was entitled to use the path,he was not entitled to use it in such a way as to make manifest that theintention behind his user was to insult, annoy or intimidate. The casefor the respondent is not that annoyance or intimidation resulted onlyfrom the user in violation of the undertaking, but from the additionalcircumstances, namely, the forcing open of the gate, the abuse, the threats,the carrying of the gun, to mention some.
I am clearly- of opinion that the offence of criminal trespass is made out.
In regard to the charge of criminal intimidation, de Sampavo J.,in the case of Sinnappu v. Vallipuram and Others held that “ the essenceof intimidation is the holding out of some threat directly to the personconcerned, or with the intention of its being communicated to him ”.That was the view taken in the Indian case referred to by de Sampayo J.,Gunga Chanda Sen v. Gout Banikaya In the present case, it is clearthat the appellant’s intention was that the threats should be conveyed.He uttered them to two employees of the respondent, and one of themconveyed the fact to the respondent. It is not necessary in this case toconsider what the position would have been if the person who, it wasintended should convey the threat to the respondent, did not in factconvey it to him, although my view is that if the fact that the threatwas uttered came to the knowledge of the respondent in some way, andhe was able to prove it the charge would be established. If, however,the respondent remained in ignorance of the threats, cadit quaestio,
in that event, there could be no charge.
> 4C. W. R. 231.
2 7. L. R. 15 Cal. 571.
404-HOWARD C.J.—Silva v. Gunasekere.
I hold that the conviction under section-486 is right.
On the question of sentence, I am of opinion that the Magistrate wasvery lenient. The appellant acted in an extremely high-handed andprovocative manner. It was fortunate that the respondent’s reactionto all this aggressiveness on the part of the appellant was akin to the“soft answer that turneth away wrath”. He took refuge in his store?oom. I should have imposed a sentence of imprisonment, and it iswith some misgiving that I refrain from interfering with the sentencein that way on appeal. But, I consider it necessary, in the interests oflaw and order, that while I affirm the convictions and sentences enteredby the Magistrate I should order the appellant, in respect of the convictionentered against him on the charge of intimidation, to enter into a bondunder section 80 of the Criminal Procedure Code with one surety in asum of Rs. 250 to keep the peace for a period of six months.
BALAWANDARAM v. HEENKENDE