Pcngasamy v. Me Inlyrt
1969Present.: Samerawickrame. J.
M..RENGASAMY, Appellant, and A. K. Me INTYRE, RespondentS. C. 1158/66—M. C. Badulla, 16761
Criminal trespass—Charge against estate labourer for remaining on estate with intent toannoy super intend cut—Physical oren/xttion by him of line room after notice toquit—Whether it is a valid defence. –
The accused-appellant, who was employed as labourer on an estate, wasconvicted of the offence of criminal trespass for remaining on tiie estate withintent to annoy the complainant, who was the superintendent in occupation oftho estate.- There was another charge laid against him of committing housetrespass by remaining in his line room with intent to annoy the complainant,but ho was acquitted on the ground that, although his occupation of the lineroom after receipt of notice to quit was unlawful, it was not the cornplninnntbut the accused himself who had actual physical occupation of the lineroom.
Held, that the fact that the accused was not guilty of house trespass in respectof the line room of which lie was in physical occupation diet not preclude hisboing guilty of criminal trespass in respect of his entry on and use of adjacentproperty in the occupation of the complainant.
SAMERAWICKRA5IE, J.—Rengasamy v. Ale Intyre
Appeal from a judgment of the Magistrate’s Court, Badulla.
Colvin R. de Silva, with Bala Nadarajah, for the accused-appellant.
R. A. Kannanyara, with J/. Underuood, for the complainant-respondent.
Cur. adv. wit. ■
July 20, 1060. S v:ierawickkame, J.—
The appellant- has been convicted of the commission of the oftence ofcriminal trespass bj’ remaining on Braughing Estate which was in theoccupation of the complainant A. R. Me In tyre who is the superintendentof the estate with intent to annoy the complainant.
The appellant had been a labourer oh-Braughing~Estate and onT3thApril, 10G0, there had been an incident on the estate in consequence ofwhich the appellant and certain others were charged in the Magistrate’sCourt with being members of an unlawful assembly the objects ofwhich were to wrongfull}' restrain A. R. Me Intyre and to commitmischief by damaging a land rover belonging to him as well as to causehurt to Me lntj-re. The}’ were convicted and sentenced to terms ofimprisonment. On appeal the convictions were set aside on the groundthat the Magistrate had not examined the person who brought theaccused into Court and had thereby failed to comply with the provisionsof Section 151 (2) of the Criminal Procedure Code.
The appellant had made an application to the Labour Tribunal askingfor reinstatement in his cmploj-ment as a labourer on Braughing Estate.Order was made by the tribunal in February 1905. In his order, thePresident of the. Labour Tribunal held that the appellant had threatenedthe employer in his presence and had assaulted hint. On appeal theorder ol the Labour Tribunal was set aside on the ground that the personwho functioned as the President had not been appointed by the JudicialCommission and, therefore, had no jurisdiction to make the orderappealed from.
Immediately after the incident which took place on 13th April, 1960,in the course of which, according to Me Intyrc, the appellant hadintimidated and threatened to kill him, notice (PI) was given to theappellant terminating his employment and requiring him to vacate hisline room. No action however has been taken to compel the appellant toleave upon that notice. On 10th March, 1065, shortly after theappellant’s application to the Labour Tribunal had been dismissed, afresh notice (P2) was given to the appellant requiring him to leavethe estate. The superintendent of the estate has stated that he hadrefrained from taking action on the earlier notice out of deference tothe Magistrate’s Court and the Labour Tribunal in which proceedings-were pending.
SAMERAWICKRAME, J.—Bengasamy v. Me Intyre
The present proceedings against the appellant were initiated in theMagistrate’s Court of Badulla on 2nd February, 1966. On 16th June,1966, the appellant’s trade union by document (D5) applied to the LabourTribunal to have the application made to it on behalf of the appellantset down for hearing before the duly appointed President.
It transpired in the course of the trial that the appeliant is living onthe estate and is working outside. When a civil action was filed for hisejectment, the appellant has put the plaintiff to prove his title to theestate.
Learned Counsel for the appellant submitted that as the LabourTribunal has power to reinstate the appellant, the appellant’s continuedstay on the estate is referable to that fact and that, in the circumstancesof this case, it cannot be inferred that his dominant intention is to annoythe complainant. He cited a number of decisions on the question of theintention requisite to be proved in a charge of criminal trespass. I donot think it is necessary to examine those authorities in view of thecircumstances of this particular case. The learned Magistrate’s findingis that the appellant is defying the complainant and his intention isclearly to annoy the complainant. The facts and circumstances whichhave transpired in evidence support the finding of the learned Magistrateand I am, therefore, unable to say that he was not justified in comingto that finding. In fact the appellant appears to be bent on causing tothe complainant as much trouble and vexation as possible.
There was another charge laid against the appellant of committinghouse trespass by remaining in the line room with intent to annoy thecomplainant but the learned Magistrate acquitted him on the groundthat it was not the complainant but the accused himself who had actualphysical occupation of the line room. There is no appeal against theacquittal and I am not, therefore, called upon to consider whether it iscorrect or not. Learned Counsel for the appellant submitted that theacquittal on this charge was relevant to a consideration of the firstcharge : if the occupation of the line room was not criminal remaining onthe estate was not criminal. Had the finding of the learned Magistratebeen that the occupation of the line room was lawful it would follow thatthe appellant’s entry upon and use of land immediately adjacent to theline room for ti;o purpose of ingress and egress would also have beenlawful. But the Magistrate has not found that the occupation waslawful but that actual physical occupation was in the appeliant and notin the complainant. The occupation of the line room by the appellantafter receipt of the notice (P2) was unlawful. The view of the learnedMagistrate that the fact that tlie accused is not guilty of house trespassin respect of the line room of which he was in actual physical occupationdoes not preclude his being guilty of criminal trespass in respect of hisentry onand use of adjacent property in the occupation of the complainantfinds support in the decision reported in 63 Ceylon Law Weekly, page SO.In the result the appeal fails and is dismissed.
M. RENGASAMY, Appellant, and A. R. Mc INTYRE, Respondent