063-NLR-NLR-V-77-M.-NANDORIS-et-al.-Appellants-and-INSPECTOR-OF-POLICE-WARAKAPOLA-Respondent.pdf
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Nandoris v.—Inspector of P o'ice, Waral apo'.a
1969Present: Samerawickrame, J.
M. NANDORIS et dL, Appellants, and INSPECTOR OF POLICE,WARAKAPOLA, Respondent
S. C. 909—925/68—M. C. Kegalle, 66868
Criminal trespass—Occupation ofproperty—•Meaningof term
“ occupation ”—Penal Code, s. 433.
In a prosecution for criminal trespass, occupation of propertywithin the meaning of section 433 of the Penal Code does not meanactual physical possession.
.AlPPEAL from a judgment of the Magistrate’s Court, Kegalle.
V. Kumaraswamy, with Miss S. M. Senaratne and V.Sachithanandan, for the accused-appellants.
Shibly Aziz, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
SAMERAWICKRAME, J.—Nandoris v. Inspector of Police, Warakapola 305
October 15, 1969. Samerawjckrame, J.—
The appellants appeal from their convictions for the offenceof criminal trespass upon a land vested in the Basnayaka Nilameof the Maha Vishnu Devale, Kandy.
It appears that the land had been leased to one Herath-appuhamy but that the lease was surrendered and the landhanded over to the Basnayaka Nilame on 28th November, 1965.Panawala who was the Basnayaka Nilame went to the land on28th November, 1965, took possession of the land and handed itover to witness Dabilinsingho whom he was placing in charge ofit. Dabilinsingho went to the land on 5th December, 1965, andfound the appellants in forcible occupation of the land and doingvarious acts such as tapping the rubber trees, plucking coconutsand putting up sheds. He requested the appellants to leave andthey promised to do so, but on a later date when he went tothe land the appellants said, they would not leave the land andif anybody came to the land he would be killed. The positiontaken up by the first accused-appellant who gave evidence wasthat the appellants had been in possession for a long period oftime. The learned magistrate has carefully considered theevidence in the case and has found it impossible to accept theversion of the 1st accused-appellant and, on a careful examina-tion of the facts, has held that the version of the prosecutionis true and established to his satisfaction. I, therefore, do notfind it possible to act otherwise than on the findings of factmade by the learned magistrate.
Learned counsel for the appellants submitted that the offenceof criminal trespass was not made out because it could not besaid that the complainant Dabilinsingho was in occupation ofthe land within the meaning of s. 433 of the Penal Code. Dabilin-singho was not in actual physical occupation of the land. In
K.Chandrasekera v. Jayanathan1 68 C- L. W. 66, Manica-wasagar, J., considered the position and stated “ In Ward‘s case *reported in 6 N. L. R. 317, a decision by two Judges of thisCourt, the Fiscal ejected the accused from a plot of patna andscrub land and delivered it to an agent of the Secretary of Statefor War, who took possession ; after a month the agent leftleaving no one in occupation ; the accused re-entered, and hisconviction for criminal trespass was affirmed. Maartensz, J., inthe later case of Silva, ’ reported in 10 C. L. R. 107, quoted Ward’scase with approval, holding that occupation does not meanactual physical possession; with respect, I agree with thisopinion. ”
1 (1964) 68 G. L. TV. 66.* (1903) 6 N-L.R. 117.
8 (1929) 10 C.b.R. 107.
305 SAMERAWICKRAME, J.—Nandoris v. Inspector of Police, Warakapola
Dabilinsingho had been placed in charge of the land and hewas, though not resident on it or physically present at the time,in occupation of it within the meaning of s. 433 of the PenalCode.
Learned counsel for the appellants also pointed out that theintention referred to in the charge of criminal trespass was tocommit mischief but that the appellants had been acquitted oncount 2 in which they were alleged to have committed mischief.The learned magistrate has made it clear that he was acquittingthe appellants on count 2 because no satisfactory evidence hadbeen led to assess the extent of the damage caused to the landand the evidence on that point was scrappy. In count 2 it wasalleged that the appellants had caused damage to the extentof Rs. 3,000. The learned magistrate has also stated, “ Furtherit is clear that the motive in committing trespass into this landwas to commit mischief and enjoy the produce of the land andto reside there. ” It is also alleged that the appellants weretapping the rubber trees, plucking coconuts, cutting down treesand putting up huts. The trees were cut presumably for thepurpose of putting up the huts. The police officer who went tothe land corroborates the evidence of the other prosecutionwitnesses. He says that some huts were being constructed.
Learned counsel for the appellants raised certain othermatters which however I do not consider to have muchsubstance. On the findings of fact arrived at by the learnedmagistrate the convictions are right and must be affirmed.
The learned magistrate has imposed on each of the appellantsa fine of Rs. 50 and in default six weeks’ rigorous imprisonment.The maximum term of imprisonment which may be imposedfor the offence under s. 433 of the Penal Code is three months.and accordingly the maximum default sentence the learnedmagistrate could have imposed was one of three weeks’ rigorousimprisonment. The sentence in default of payment of fine istherefore altered in the case of each of the accused-appellants tothree weeks’ rigorous imprisonment. Subject to this variationin the default sentence, the appeals are dismissed.
Convictions affirmed.Sentence varied.