GUNASEKAHA, J.—Emanis Singho v. Inspector of Police, Dompe
Present :Gunasekara, J.
EMANIS SINGHO and another, Appellants, and INSPECTOR OF
POLICE, DOMPE, Respondent
S.C. 395-39G of 1961—M. G. Gampaha, 60931jB
Criminal trespass—An ingredient of the offence-—Framing of proper charge—Penal
Code, s. 433.
Sentence—Conviction of accused—Order of conditional discharge—Illegality—Criminal
Procedure Code, s. 325 (1).
The offence of criminal trespass can be committed by a person only in respectof property in the occupation (not merely possession) of another. Tho chargeof criminal trespass would itself be defective if it contains no avermont thattho property was in tho occupation of a person.
An order of conditional discharge under section 325 (1) of the Criminal Proce-dure Code cannot bo made in a case where tho accused is convicted of an offence.
Appeal from a judgment of the Magistrate’s Court, Gampaha.Frederick TV. Obeyesehere, for the Accused-Appellants.
P. Nagulesicaram, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 14, 1961. Gunasekajra, J.—
The two appellants were tried before the Magistrate’s Cour t of Gampahaon charges of criminal trespass and mischief, alleged to have been commit-ted on the 22nd November 1960. After the magistrate had heard theevidence for the prosecution and the defence he made the followingorder on the 16th March 1961 :
" I find the accused guilty on both counts and convict them. Reasonsand sentence on 21/3. ”
GUNASEKAHA, J.—Emanis Sing ho v. Inspector of Police, Dompe
On the 21st March, instead of passing sentence, he made the followingorder :
“ Under Section 325 (2) both accused bound over for 1 year inRs. 200/200.
Under Section 325 (3) each accused to pay compensation of Rs. 10/-to complainant Sava riel Singho within one month from today. ”
The section referred to in the latter order is section 325 of the CriminalProcedure Code. The magistrate’s court had no power to make an orderunder subsection (2) of this section, for such an order can be made onlywhere a person “ has been convicted on indictment ”. If the magistrate’sreference to subsection (2) is a mistake for subsection (1), what he intendedto do under this subsection was to discharge the appellants conditionallyon their entering into recognizances to be of good behaviour and toappear for conviction and sentence when called on at any time duringa period of one year. But it was not open to him to make such an order,for he had already convicted the appellants, and the orders that a courtmay make under subsection (1) are orders that it may make “ withoutproceeding to conviction Whether the order purports to be madeunder one subsection or the other, it is not a final order, being a condi-tional discharge, and is therefore not appealable. As it appeared to boan obviously erroneous order, however, I considered the case in theexercise of the powers of revision vested in this court.
The charge of criminal trespass relates to a piece of land, about £ acrein extent, that was allotted to one Ago Nona on the 1st February 1956by the final decree in a partition action. The subject of the action wasa land of about 5£ acres. It was partitioned into 5 lots, of which lots2 and 3 (which adjoin each other) were allotted to the appellants, lot 4(which adjoins lot 3) to Ago Nona and lot 5 (which adjoins lot 4) to oneSavariel and his wife Rosalin. While the action was pending Ago Nonahad conveyed to Savariel, on the 6th October 1954, whatever rights shemight become entitled to under that decree. On the 12th December1956 Savariel transferred to one Mai Singho his right, title and interestin an extent of J acre out of lot 4. He claims that he was in possessionof the rest of lot 4 from the time of the final decree in the partition actionuntil the day in question, the 22nd November 1960.
On that day, according to the case for the prosecution, Savariel andthree others went to lot 4 and were planting coconuts there, when thetwo appellants arrived, the 1st accused appellant armed with a swordand the 2nd with a kitchen knife, and uprooted and threw away some 20coconut plants. Evidence to this effect was given by Savariel and aman named Jacobs, who is said to have been one of those who helpedhim in the planting. Savaiiel complained to the pobce. A policesergeant who visited the land on the next day to invesiigate the com-plaint said in evidence that he found about 20 coconut plants uprootedand scattered about the land. Savariel estimated the resulting damageat Rs. 25.
GUNA.SEKARA, J.—Emanis Singho v. Inspector of Police, Dompe
The 1st accused appellant, who was the only witness called fop thedefence, denied that any such incident as was alleged by the prosecutionoccurred on the 22nd November or that there were any uprooted coconutplants on the land when the police came there on the next day.
It was common ground between the prosecution and the defence thatthe appellants had prevented Savariel from planting coconuts on thisland on the 4th November 1960 and from picking coconuts there on the6th November, and that on each of these occasions he complained to thepolice. Savaiiel admitted under cross-examination that after aninquiry into these complaints, at which the appellants produced somedeeds and claimed to be the owners of the land and to be in possessionof it, the police advised him to establish his title in a civil action. There-after he interviewed the local member of Parliament at the latter’soffice and told him what had happened. He then made a third com-plaint to the police. They held an inquiry on the 20th November aridinstructed him to plant the land on the 22nd.
It was suggested on behalf of the defence that before the police heldan inquiry on the 20th November the member of Parliament had, toSavariel’s knowledge, communicated with the police ; but this suggestionwas denied by Savariel.
The 1st accused appellant claimed that Ago Nona’s title to lot 4 baddevolved on him and that he was in possession of that lot. He producedtwo deeds, executed on the 5th December 1958 and the 12th May 1959,by which certain persons who were said to be Ago Nona’s heirs conveyedtheir interests in this lot to one Wijeratne, and he stated that he hadsubsequently obtained a transfer of those interests, but he did not producethe deed by which this transfer was made. Nor was there evidence ofany acts of possession done by him. Quite clearly there was no evidencebefore the magistrate that could support this accused’s claim of title.His assertion that he was in possession of the land was also unsupportedby any evidence.
The learned magistrate states that he accepts the evidence of theprosecution witnesses that from the time of the final decree in the parti-tion action Savariel was in possession of lot 4. But apart from a vaguestatement by Jacolis to the effect that he was “ the person looking afterthe land ”, there is no evidence that Savariel was in possession of this lot.He has asserted that he was in possession of it, and the assertion is repeatedby the village headman, but there is no evidence of any specific acts ofpossession that could prove this assertion.
While the learned magistrate has arrived at a finding that Savarielwas in possession of loi 4 he has failed to address his mind to the questionwhether it had been proved that Savariel (or anyone else) was in occupa-tion of it at the material time. The offence of criminal trespass can bocommitted by any person only in respect of property in the occupationof another. The charge of criminal trespass is itself defective in that
WijeliUeke v. Deen
it contains no averment that the property was in the occupation of anyperson. It only alleges that the appellants did “ commit criminal trespassby entering into the land called Namaluwatta at Helumahara withintent to commit an offence, to wit, mischief, and thereby committedan offence punishable under section 433 of the Pena] Code I set asidethe conviction of the appellants on this count.
I see no reason to interfere with the magistrate’s finding that theappellants committed the offence of mischief with which they werecharged or with his decision to make an order under section 325 of theCriminal Procedure Code in respect of that offence. I therefore set asidethe conviction of the appellants on the count of mischief and substitutefor it an order in terms of section 325(1) of the Criminal Procedure Codedischarging the appellants conditionally on their entering into recogni-zances, each in a sum of Rs. 200 with a surety, to be of good behaviour,and to appear for conviction and sentence when called on at any timeduring a period of one year.
Appeal mainly allowed.
EMANIS SINGHO and another, Appellants, and INSPECTOR OF POLICE, DOMPE, Responde