MANICAVASAGAR, J.—Namanalhan v. McIntyre
1967Present: Manicavasagar, J.
G. NAMANATHAN, Appellant, and A. R. McINTYRE, RespondentS. C. 1520—M. C. Badulla, 16769
Criminal trespass—Intention to annoy—Proof—Penal Code, ss. 433, 434.
The accused-appellant, who was unmarried and 23 years old, was employedas a labourer on an estate, and occupied a line room which was allotted to hisfather, who was also a labourer on the same estate. After his services wereterminated, he continued to remain in his father’s line room after he was givennotice to quit the estate. He was charged with criminal trespass on tho basisthat his presence on the estate was unlawful and was intended to annoy theSuperintendent (complainant) who was in occupation of the entire estate. Theevidence showed that the accused was bom on this estate and that he lived inthe line room with his parents who looked after him.
Held, that, in the absence of evidence that the accused had an intention toannoy, tho essential ingredient of criminal trespass was not proved. Proofthat the complainant was annoyed was not sufficient.
ApPEAL from a judgment of the Magistrate’s Court, Badulla.
Bala Nadarajah, for the Accused-Appellant.
Jt. A. Kannangara, with M. Underwood, for the Complainant-Respondent.
April 21, 1967. Manicavasagar, J.—
This is an appeal by the accused from the verdict of the Magistrate ofBadulla convicting him of two offences, namely, criminal trespass andhouse trespass, punishable under-sections 433 and 434, respectively, ofthe Penal Code.
The facts are common to both charges and are as follows : the appellantwho is unmarried and 23 years old was employed as a labourer onBroughing Estate, Welimada, and occupied room No. 6 on the Estatelines which is allotted to his father who too is a labourer on the estate.The room is occupied by the parents of the accused and his brothersand sisters, all of whom are workers on the estate.
In April, 1960 the services of the appellant were discontinued byMcIntyre the Superintendent of the estate who gave him notice to quit.The appellant thereupon ceased to work on the estate, and took hisgrievance to the Labour Tribunal : this dispute remains undecided for
MANICAVASAGAR, J.—Namanathan v. McIntyre
reasons which it is sufficient to say the Labour Tribunal is not to beblamed. The non-determination of this however is not relevant to thedecision of the matter now before me. On 10.3.65 the Superintendentgave notice to the appellant to quit the estate within a month of thenotice, but the appellant continues to remain in the line room, which, asI said, had been allotted to his father.
The charges against the appellant were on the basis that his presenceon the estate is unlawful, and was intended to annoy the Superintendentwho is in occupation of the entire estate.
McIntyre in his evidence said, that the presence of the appellant onthe estate causes annoyance to him and he has no right to live in theline room of the estate as only labourers working on the estate arepermitted to occupy the line rooms.
The appellant in his evidence said, that he was bom on this estate.This fact is admitted. He said that he has no place to go to and thathe lives in this line room with his parents who look after him. Thisevidence stands uncontradicted and was not challenged : he went on tosay that even if he is not reinstated in his employment he has to remainon the estate as his parents live there.
In my view the evidence taken as a whole does not point to theappellant’s living in the line room being unlawful or that it is hisintention to annoy the Superintendent. The offence of criminal trespasscreated by section 427 requires proof that the offender intends by his actionto annoy the person in occupation, in this instance, the Superintendent.This is a question of fact to be inferred from the circumstances of each case.A relevant and important circumstance in this case is that the- appellantlives in a line room which has been allotted to his father and that he isdependent on his parents for his subsistence : his occupancy of the roomis by reason of his being the son of the allottee, and not a term of hiscontract of employment.
Mr. Kannangara for the respondent submits that the intention to annoymay be inferred from two circumstances: firstly, that in the action broughtin the Court of Requests of Badulla by the owners of the estate to evictthe appellant, the latter had in his pleadings denied the title of theplaintiffs and put them to the strict proof of it, and, secondly, in thecourse of his evidence he said that he will live on the .estate till he dies.
These two circumstances do not, in my view, justify the inference whichCounsel seeks to place on them. The evidence of the appellant on whichCounsel relies must be taken in conjunction with the rest of his evidencewluch makes it quite clear that the appellant stays in the line room forthe reason which I have stated earlier. In regard to the pleadings I amnot surprised that the lawyers for the appellant demanded that the ownershould establish their title : the deed of title pleaded in the plaint as thetitle of the one-half owner does not give the name of the transferor andthe date of the transfer : regarding the other half-owner who is deadthe 2nd plaintiff claims to be his executor and trustee but gives noparticulars at all: the lawyers for the defendant were quite justified incalling for proof in the absence of these details.
SANSONI, C.J.—Cassim v. Government Agent, Batticaloa
The bare fact that the appellant continues to live in a line room allottedto his father, though he has been noticed to quit the estate, does not,in view of the evidence of this appellant which seems reasonable, pointto his presence on the estate being unlawful or that his intention is toannoy McIntyre : the latter may well be annoyed because the appellantcontinues to be on the premises, but the essential ingredient in an offenceof criminal trespass is whether the appellant had an intention to annoy.I think the appellant’s intention to remain in the line room is because heis dependent on his parents and has no place to live in. That appears tobe the dominant purpose in his remaining there, and in the absence ofany other circumstance which points to an intention to annoy, the verdictof conviction must be set aside.
I accordingly set aside the conviction and acquit the appellant of thecharges.
There are two other cases which are before me, namely, S.C. 1522/66M. C. Badulla 16771 and S.C. 1521 /66 M.C. Badulla 16767 in both of whichthe Counsel stated the matter in issue is similar to the instant appeal.
The conviction of the accused in each of these cases is also set aside,and he is acquitted of the charges against him.
G. NAMANATHAN, Appellant, and A. R. McINTYRE, Respondent