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JEYARAM AND ANOTHER
COURT OF APPEALYAPA. J.,
C.A. NO. 279/90M.C. HATTON 54045JULY 24TH. 1996MAY 7TH, 14TH, 1997
Penal Code – S. 427, 433 – Criminal Trespass – Occupation within the meaningof S. 433 is not actual physical possession – conduct – causingannoyance.
The Superintendent of the Estate had directed his assistant to hand over the lineroom in question to one P., after the handing over the appellants had forciblyoccupied the said line room, and refused to vacate though ordered to do so bythe Superintendent, the appellants were charged under S. 433 and convicted.
On appeal, it was contended that the charge was defective as P was in occupationof the line room whereas the charge stated that the Superintendent was inoccupation and in control of the line room and it was further contended that therewas no evidence that the appellants entered the line room with the intention ofannoying the Superintendent.
It is clear that for the purpose of S. 427, the occupation can be by oneselfor by an agent and the Superintendent of the estate as an agent of theowner is said to be in occupation of the line rooms.
The Superintendent is in paramount occupation not only of the estate withinwhose confines the line rooms are situated but also of the line rooms.While a labourer on an estate is in occupation of his line room, theSuperintendent who resides on the estate is in occupation of the entireestate including the line rooms.
It is a primary requirement of liability for criminal trespass that the accused'sact of entering or remaining in the line room in the occupation of theSuperintendent should be unlawful, the act of continuing to remain in theline room without authority, the action taken by the Superintendent tosuspend the appellants from work untill they left the line room, all go toshow inferentially that the conduct of the appellants had been to causeannoyance to the Superintendent.
CA Jeyaram and Another v. Bagawantalawa Police (Hector Yapa, J.)83
Cases referred to:
Selvanyakam Kangany v. Henderson – 47 NLR 337 at 345.
Abraham v. Hume – 52 NLR 449.
King v. Seivanayagam – 51 NLR 470.
Nandoris v. Inspector of Police, Warakapola – 77 NLR 304.
Selliah v. D. C. Kretser – 70 NLR 263.
Forbes v. Rengasamy – 41 NLR 294.
APPEAL from the magistrate's Court of Hatton.
S. Mandaleswaram with D. Dharmatileke for acused appelant.
A. H. M. D. Navaz SC for Attorney-General.
Cur. adv. vult.
November 12, 1997.
HECTOR YAPA, J.
The two appellants in this case were charged under section 433 ofthe Penal Code, for committing criminal trespass. After trial bothappellants were convicted and thereafter they were sentenced to aterm of three months rigorous imprisonment. The Superintendent ofthe Estate, Premaratne, Assistant Superintendent, Sugathadasa andone Periyasamy gave evidence for the prosecution. Premaratne in hisevidence stated that on 07.05.90 he directed the assistant superin-tendent, Sugathadasa, to hand over the line room in question toPeriyasamy. Later Sugathadasa informed him that after the handingover of the line room to Periyasamy on 09.05.90, the two appellantshad forcibly occupied the said line room. He further stated that eventhough the appellants were ordered to vacate the said line room, theyhad failed to do so. Sugathadasa in his evidence stated that on09.05.90, Periyasamy had informed him that the two appellants hadforcibly entered the line that was allocated to him and he thereforeinformed the Superintendent who ordered the appellants to vacate theline room. Sugathadasa further said that since the appellants hadrefused to vacate the line room, he took action to inform the police.This witness had also produced a document marked P1, accordingto which a decision had been taken by the management of the estate,to allocate the said line room to Periyasamy. Periyasamy in hisevidence stated that he was given the line room and the key by theKanakapulle of the estate on 09.05.90 and thereafter he said that he
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cleaned the line room and went to bring his family and on his returnhe found that the appellants had broken the padlock and had occupiedthe line room. Thereafter, he said that he informed the assistantsuperintendent and then made a complaint to the police. After theprosecution case, when the defence was called, the 1st accused-appellant gave evidence and denied the charge and took up theposition that the line room in question was handed over to him bythe Kanakapulle of the estate.
At the hearing of the appeal, one of the matters raised by thelearned Counsel for the appellants was that the charge in this casewas defective. His submission was that in this case, Periyasamy wasin occupation of the line room, where as the charge stated that thesuperintendent of the estate Premaratne, was in occupation and incontrol of the line room. This argument of the learned Counsel wasbased on the fact that the line room in question was given toPeriyasamy and it was thereafter that the appellants had entered andoccupied the said line room. On this point, some authorities were citedby learned Counsel. However, on an examination of the authorities,it is clear that for the purpose of section 427 of the Penal Code, theoccupation can be by oneself or by an agent and further that thesuperintendent of the estate as an agent of the owner of the estateis said to be in occupation of the line rooms. In the case of SelvanayakamKangany v. Hendersori’» Jayatillake, J. at 345 stated as follows: “theSuperintendent reserved to himself the right to allocate the rooms ashe wished. The reservation of such a predominating right mustnecessarily prevent the occupation of the rooms by the labourers, frombeing exclusive. The only reasonable inference to be drawn from thesefacts is that the Superintendent was in paramount occupation not onlyof the estate within whose confines the line rooms are situate butalso of the line rooms". Similar view was adopted in the case ofAbraham v. HumeP where it was stated that, while a labourer onan estate is in occupation of his line-room, the superintendent whoresides on the estate is in occupation of the entire estate includingthe line rooms. The view expressed in the case of King v.Selvanayagarrf3) that occupation in section 427 is physical occupationappears to be unsound and has not been followed in the case ofNandoris v. Inspector of Police, WarakapolafA) where it was held thatthe occupation of property within the meaning of section 433 of thePenal Code does not mean actual Physical posession.
CA Jeyaram and Another v. Bagawantalawa Police (Hector Yapa, J.)85
In the present case, it is seen from the facts that Periyasamy wasallocated the line room in question with the key. Thereafter he hadtaken action to clean the line room and left the line room in orderto bring his family to occupy the line room and it was at that stagethat the appellants had forcibly entered the said line room and occupiedit. Therefore having regard to authorities referred to above, there isno difficulty in holding that in the present case the superintendent ofthe estate was in occupation and in control of the line room in question.
In the circumstances, I am of the view that there is no merit in thesubmission of learned Counsel that the charge is defective and thereforeI hold that the appellants have been properly charged.
It was further submitted by the learned Counsel for the appellantsthat in this case, there was no evidence whatsoever that the appellantsentered the line room with the intention of annoying the superintendent.
It is a primary requirement of liability for criminal trespass that theaccused's act of entering or remaining in the line room in the oc-cupation of the superintendent should be unlawful. On that matter allthe prosecution witnesses have referred to the unlawful entry of theappellants and their act of continuing to remain in the line room without authority. Thereafter the superintendent had taken action to suspend 'the appellants from work, until they left the line room which they hadforcibly occupied. This action was obviously taken by the Superin-tendent, since he was annoyed with the conduct of the appellants.
In addition, it was the evidence of the prosecution that even up tothe date of the trial before the Magistrate's Court, the appellants hadbeen occupying the line room. All these factors goes to show infer-entially that the conduct of the appellants had been to cause annoy-ance to the superintendent. In the case of Selliah v. De Kretserit was held that where an estate labourer, after his services have beenterminated, remains on the estate unlawfully, contumaciously and indefiance of the superintendent, an intention to annoy must be inferredand he is guilty of criminal trespass. The fact that he has madean application to the Labour Tribunal for re-instatement does not justifyhis remaining on the estate pending the proceedings. Similar viewhad been expressed in the case of Fortes v. Rengasamy"9. Therefore,the submission of the learned Counsel that the prosecution has failedto establish an intention on the part of the appellants to annoy thesuperintendent is with out merit. Further in this case the learnedMagistrate had carefully considered the available evidence and hadfound it impossible to accept the version of 1st accused-appellant and
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had come to the conclusion that the prosecution had established it'scase beyond reasonable doubt. I therefore see no reason to interferewith the findings of fact made by the learned Magistrate. In thecircumstances, this appeal must fail and the conviction should beaffirmed.
The learned Magistrate after convicting the appellants had imposedon each of them, a sentence of three months rigorous imprisonment.However, having regard to the fact that the appellants had also beeninterested in the said line room, I am of the view that the ends ofjustice would be met without imposing on them a custodial sentence.Therefore, I set aside the sentence and impose in place of thesentence of three months rigorous imprisonment a fine of Rs. 100,on each of the appellants, with a default term of three weeks' rigorousimprisonemnt. Subject to the said variation in the sentence, the appealis dismissed.