022-NLR-NLR-V-18-MEDDUMME-APPU-v.-WEGUNDAHAMY.pdf
( 73 )
1*14,
Present ; Pereira J.
MEDDUMME APPU u. WEGUNDAHAMY.
628—P. C. Matale, 2,063.
Criminal /re«j?a««—Intention to commit an offence or to intimidate, insult,or annoy—Unlawful assembly.
In the offence of criminal trespass, unlike that of unlawfulassembly, the Intention of the alleged offenders to commit anoffence or to intimidate, insult, or annoy the person in occupationof the property trespassed upon is an essential ingredient.
fjpHE facts appear from the judgmeut.
A. St. 1'. Jayetvardene, for accused, appellant.—The learnedMagistrate convicts theaccused as he trespassed on a land in thepossession of .the complainant, and considers the plea that theaccused acted in the assertion of a bona fide claim of right as nojustification. The entry on a land to assert a bona fide claim ofright has always been held to afford a valid defence to a chargeof criminal trespass. See P, C. Panadure, 36,529/ where the ChiefJustice, while convicting the accused of hurt to the complainant whowas in possession, acquitted them of criminal trespass, as they wereasserting a bona fide claim of right. See also 2 8. C. D. 17, 3 S. 0.
47.
The facts in Suppaiya v. Pohniah2 negatived the possibility ofthere being a bona fide claim of right, as the accused had lost alltitle to the land in some cases to which he was a party, The facts> in this case clearly show that the accused has a good and valid titleto the land, and that he acted bona fide.
Wadetvorth, for respondent, relied upon Suppaiya v. Ponniah. 1It is clear from the findings of the Police Magistrate that the accuseddid not act in the bona fide assertion of his right. The Penal Coderefers to occupation, and not to possession, in defining criminaltrespass.
Cur, adv. vult.
July 31, 1914. Pereira J.—
In this case the appellant (the first accused) has been found guilty,along with the second, of criminal trespass. His defence was thatthe land said to have been trespassed upon belonged to him, and thathe entered it and cut the branches of certain cocoa trees in the bonafide assertion of his right to the land. The Magistrate says .that the
1 s. C. C. Min., April 3, 1012.* {1900) 14 N. L. R. 475.
( 79 ).
whole question is one of possession, not o 1 title, tl&t if the com-plainant showed that he was in possession of the land, it is immaterialwhether the accused had any bona fide right or not, and that theyentered the land and did acts of interference which constitutedcriminal trespass. This, in my opinion, is hardly a correct viewto take. In a charge of unlawful assembly against five or morepersons, on .the ground of their common object having been to takepossession of property by means of criminal force or show ofcriminal force, the fact that their intention was the bona fide assertionof a right would be no defence, but in the case of criminal trespass,the intention to commit an offence or to intimidate, insult, or annoyany person in occupation of the property trespassed upon is anessential ingredient. In the case of Suppaiya v. Ponniah 1 it washeld that an unlawful act of trespass committed with an intentionto intimidate or annoy was criminal trespass, even if the trespasserhad some ulterior object in committing it, and that the intention tointimidate or annoy would be presumed from foreknowledge thatintimidation or annoyance would be the natural result of an act.The case, so far as I understand it, does not go beyond laying downthat the nature of the actual acts of the accused on the land tres-passed upon, and his manner of entry into the land, and other similarcircumstances, may be taken as fair indicia for the detection of hisreal intention. In case No. 36,529 of the Police Court of Panadure 2bis Lordship the Chief Justice observed as follows:" I am fully
alive to the importance of suppressing with a strong hand attemptsto take possession of property by force. But the principle of‘lawis well settled, that when the entry into the land is with the bonafide intention of asserting what is believed to be a legal right, theoffence does not amount to an act of criminal trespass." My ownviews on the matter will be found in my judgment in the case ofKanthappu v. Arumugam.* Dealing with the case as against thefirst accused in appeal, and as against the second accused in revision,I set aside the conviction, and remit the case to the Court below fora definite finding on the question as to whether the accused enteredinto the land referred to above in the bona fide assertion of a right,or with any of the intentions mentioned in section 427 of the PenalCode, and conviction or acquittal accordingly. Each party may beallowed to call further evidence.
Sent back.
i (2909) 14 AT. L. R. 475.* 5. C. C. Aftn., April 3, 2929.
3 (2923) 17 N. L. R. 259.
1914.
Pbbeik* J*
MeddvmmeAppu v.Wtgundcbhamy