004-NLR-NLR-V-73-S.-VEERIAH-Appellant-and-V.-SELVARAJAH-Respondent.pdf
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Vceriah v. Sdvarajah
Present: G. P. A. Silva, J.
S.VEERIAH, Appellant, and V. SELVARAJAH, RespondentS. G. 1413166—M. O. Badulla, 17113
Criminal trespass—Estate labourer—Refusal by him to leave his line room after noticeto quit?—Intention to annoy—Proof—Penal Code, es. 433, 434.
The accused-appellant, who was an estate labourer, was charged with criminaltrespass in that he did not leave his line room after he had been given noticeby the Superintendent of the estate to quit the line room upon the terminationof his services. The Superintendent stated in evidence that the accused hadmade'An application for reinstatement to the Labour Tribunal and that theinquiry on that application was still pending. But he did not state that thenotice to quit the line room was independent of the notice of termination ofthe accused’s services or of the offer made by him to reinstate the accused oncertain conditions. ICor did ho state that the notice to quit was intended totake effoct irrespective of the result of the inquiry pending before the LabourTribunal or of aDy action that may be taken by the Labour Deportment onbehalf of the accused. The position token up by the accused was that he hadno. intention to annoy the Superintendent and that if the Labour Tribunal 'decided against him he was prepared to leave the estate.
G. P. A. SILVA, J.— Vetriah v. Selvarajah
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• Held, that there was reasonable doubt os to whether the accused’s dominantintention in not leaving tho lino room was to cause annoyance to theSuperintendent. It was also highly probable that he remained in tho lineroom while making a bona fido endoavour to sccuro reinstatement througha Tribunal set up by law for the purpose. The accused was therefore entitledto bo acquitted.
Ar
PEAL frotn a judgment of the Magistrate’s Court, Badulla.
JR. K. Thevarajuh, for the accused-appcallant.
M.Kanakaratnam, for the complainant-respondent.
Cur. adv. vult.
May 27, 19G7. G. P. A. Silva, J.—
The accused-appellant in this case was employed as a labourer on01i3-amandi Estate and was given a line room for liis occupation. Some-time in 1965 his services were terminated by the Superintendent of theestate and he was granted time till 28.2.1966 to vacate the line room.The appellant did not leave the line room on 2S.2.1966 and he was there-after charged with having committed (1) criminal trespass by unlawfullyremaining o.i the said estate and (2) house trespass, by unlawfullyremaining in the said line room, with intent to annoy the Superintendent,and with having thereby committed offences punishable under section433 and 434 of the Penal Code. Apart from the facts set out aboveit transpired in the evidence of the Superintendent of the estate duringthe trial that the accused had made an application for reinstatementto the Labour Tribunal and that the inquiry on that application hadbeen partly heard and was still pending. It was also admitted bythe Superintendent that tho Labour Department took up the matterof the accused’s discontinuance in January 1966 and that theSuperintendent was prepared to reinstate him if he signed a bond forgood behaviour. The Superintendent however did not state at anystage of his evidence that the notice to quit the line room issued to theaccused was independent of the offer to reinstate the accused or of anydecision which may have been taken by the Labour Tribunal. Therewas not even a suggestion that tho notice to quit was intended to takeeffect irrespective of the result of any action by the Labour Departmentou behalf of the accused or of the inquiry by the Labour Tribunal onthe application of the accused. The position taken up by the accusedat the trial was that his services were wrongly terminated and that hehad made an apjilicatiou to the Labour Tribunal for redress and thathe wras awaiting its decision. He further stated in evidence that ifthe Labour Tribunal decided against him lie was prepared to leave theestate and that he was not staying there to annoy the Superintendent.The learned Magistrate, holding that the accused had no right in lawto remain on the estate and that his remaining there caused annoyanceto the Superintendent, convicted the accused of both the charges.
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G. P. A. SILVA, J-—Vceriah v. Selvarujah
It was contended on behalf of the accused that the absence of a legalright did not necessarily render his act of remaining in the line roomafter notice to quit one of criminal trespass or house trespass if he believedin good faith that he had a right to do so pending the decision of theLabour Tribunal. Secondly, it was argued that the annoyance to theSuperintendent resulting from the act of the accused in remaining inthe line room did not nevertheless constitute criminal trespass unlessthere was proof that the dominant intention of the accused was to annoyhim.
The question whether a person committed criminal trespass insomewhat similar situations has come up for consideration before thiscourt and before the Privy Council on earlier occasions. In the case ofForbes v. Rengasamy1, where an Indian labourer, who was employedon an estate and who was allowed free housing accommodation wasgiven notice by the Superintendent terminating his contract of serviceand was warned several times that he must leave the estate on theexpiration of the notice, refused to leave the estate, it was held that theaccused remained on the estate with the intention of causing annoyanceto the Superintendent and was guilty of criminal trespass. The noticeto quit in this case having been given on 2nd December, 1939, it wassought to be argued that the accused was a monthly tenant of the lineroom in which he lived and that he was entitled to notice to quit the roomgiven before the commencement of the month and terminating at theend of the month. Keuneman J. took the view, with which I respect-fully agree, that the accused was not a tenant of the premises but thathis residence in the room was in his capacity as a servant and that evenif he was a tenant, his tenancy terminated when his contract of servicewas legally ended. He therefore considered the conduct of the accusedin continuing to reside in the line room to be a criminal trespass as hisintention, confirmed by his refusal to accept the discharge ticket, wasto cause annoyance to the Superintendent.
In the case of The King v. Selvanayagam2, even though certainfactors bearing on some elements of the offence of criminal trespass,other than the one arising in the instant case, arose for consideration,the principles enunciated by the Privy Council in regard to the element.of causing annoyance are of great assistance to me. Their Lordships inthat case assumed on the facts that the accused’s occupation of the pre-mises after the terminal date of notice to quit was unlawful but were notprepared to affirm the conviction of the accused as they were not satisfiedinter alia that the dominant intention of the accused in remaining in thelino was to cause annoyance to the person. They dismissed as unaccep-table the view that, in considering the question, the intent to annoy canbe presumed where anno3'ance is the natural result of the act, unless itcould also be shown that the causing of annoyance was the primarymotive. This view was crystallised in the following passage:—
• “ Entry upon land, made under a bona fide claim of right, howeverill-founded in law the claim may be does not become criminal merely-1 (1940)41 N. L. R. 294.* (I960) 51 N. L. R 470. .
u. r. a. silva, J.— veertan v. aeivaraja/t
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because a foreseen consequence of the entry is annoyance to theoccupant. To establish criminal trespass the prosecution must prove thatthe real or dominant intent of the entry was to commit an offence orto insult, intimidate or annoy the occupant, and that any claim ofright was a mere cloak to cover the real intent, or at any rate constitutedno more than a subsidiary intent. ”
In a more recent case, Angamuttu v. The Superintendent ofTangakelle Estate1, T. S. Fernando, J. affirmed the conviction of alabourer who, having been dismissed for misconduct and asked to quitthe estate, remained on the estate contumacious^- in circumstanceswhich could not but annoy the Superintendent. The decision wasstrongly relied on by the counsel for the respondent. The case of Kingv. Seh'anayagam does not appear to have been cited to Fernando, J. inthe course of the argument. However, even if it had been cited I donot think that it would have made a difference to Fernando, J.’s decisionwhich has not departed from the principles laid down by the Privy Councilin that case. For, the conduct of the accused as disclosed by. his ownevidence when he stated that even if he was given his discharge ticket,his pay, his wife's discharge ticket and her pay, he would not leave theestate, left no room for' any other conclusion than that, his dominantintention was to annoy the Superintendent. The same observationwould apply to the case of Forbes v. Kengasaing, referred to earlier, as,in the circumstances of that case too, it was reasonable to infer thatthe primary motive of the accused in remaining on the estate andrefusing to accept his discharge ticket was to cause annoyance to theSuperintendent.
The essential requirement that annoyance should be the dominantintention in the offence of criminal trespass has been unmistakablyreiterated by the Privy Council in the very recent case ofAzeez v. The Queen2. Although this pronouncement was made ona set of facts very different from those of the three cases referred toabove, the principle laid down is not affected thereby. It ma3r be statedwith justification that this case went much further than rill the earliercases in its emphasis on the requirement of causing annoj’ance as thedominant intention. Whereas the earlier cases dealt with accusedpersons who were already on the premises with the leave of the occupantsand the charges were based on alleged wrongful continuance in thepremises, in the case of Azeez v. The Queen, thclstaccusedwasacompleteoutsider, the President of a Trade Union called the Democratic Workers’Congress, who had no right to enter the estate and in fact entered theestate after the clear refusal by the Superintendent to grant himpermission to do so. The act of entering was therefore in undoubteddefiance of the authority of the Superintendent and therefore with thefull knowledge that it would cause him annoyance. Yet the PrivyCouncil set aside his conviction for criminal trespass making the followingobservations:—
1 (10oC) 5S N. L. R. 100..-(1064) 61 X. L. It. 73.
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G. P. A. SILVA, J.— Vccrich v. Sclvarajah
“ In their Lordships’ view the evidence in this case did not suffice toestablish either directly or by inference beyond- reasonable doubt thatthe object of trespassing on the estate was to annoy Mr. RasanayagamThey also confirmed the view expressed by Their Lordships in the earliercase of King v. Selvanayagam that every trespass did not come withinthe ambit of criminal trespass contemplated in section 427 of the PenalCode and that the commission of civil trespass too caused annoyance inthe majority of coses to the occupants of the property trespassedupon.
When I examine the facts of t lie instant case in the light of the principleslaid down in the above cases, there seems to be no escape from thoconclusion that the conviction of the accused cannot stand. As I havealready stated, there is no evidence to show that the notice to quit tholine was independent of the not ice of termination of services. If thereforehis services were not terminated he would in the normal course havecontinued in residence in his line room and he may well havereasonably entertained the hope that there was further room fornegotiating with the Superintendent through the Labour Departmentparticularly because the Superintendent at one stage offered to reinstatehim on certain conditions. This offer is a relevant consideration indeciding the question of bona tides or mala tides on the part of the accusedas the conduct of the Superintendent in these circumstances justifiedthe bona fide belief in the accused that the notice of termination ofservices was not irrevocable and that if it was revoked, his continuancein the line room was a matter of course in which event it would havebeen most imprudent for him to leave the line room before all effortsat reinstatement had failed. Further, the application for reinstatementto the Labour Tribunal was admittedly one recognised by law and thefact that the Superintendent participated in the proceedings showedthat the application was maintainable, whatever the final outcomemight have been. Having made the application, it is but natural thatthe accused would have expected a favourable decision in which eventthe Superintendent would have been compelled by law to reinstatethe accused and, in the absence of any evidence to the contrary, there,is no reason to think that the Superintendent would, despite thereinstatement, have insisted on the accused quitting the line room which heoccupied. While these facts are by themselves sufficient for a reasonabledoubt to arise a3 to whether the accused’s dominant intent in*notleaving the line room was to cause annoyance to the Superintendent,there are various items of evidence in favour of the accused which appearto contain a ring of truth. His evidence was that he was not stayingon the estate to annoy the Superintendent and not even an attemptwas made in cross-examination to contradict that assertion. He alsostated that he was prepared to leave the estate if the Labour Tribunaldecided that his dismisssal was justified and no suggestion was made in .cross-examination that the application was a frivolous one or that hehad already secured employment elsewhere having abandoned aDyhope of success before the Labour Tribunal. These are items of evidence
Brohicr v. Munidaaa
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which, if contradicted, would have weighed on the side of a dominantintention to cause annojance and the failure of the prosecution tocontradict them must necessarily enure to the benefit of the accused.The material consideration in relation to the charge is the state of mindof the accused. Can it be said in these circumstances that the accusedwas acting mala fide and indulging in the unrewarding pastime of causingannoyance to the Superintendent or bona fide in an endeavour to securereinstatement by recourse to a Tribunal set up by law for redress ofhis grievances although, without doubt, his conduct would have hadconsiderable nuisance value and resulted in annoyance to theSuperintendent. It seems to me that the answer to this question, doesnot merely remain in the field of a reasonable doubt, which would havebeen sufficient for an acquittal of the accused, but ascends to the levelof high probability on the side of his bona fides and necessarily negativesa dominant intention to annoy the Superintendent by his conduct.These reasons compel me to the conclusion that the learned Magistratetook too narrow a view of the law, having regard to the interpretationthat it has received, and misdirected himself when he found the accusedguilty of the offences on the ground that he had no right in law to remainin the estate and that his remaining in the estate caused annoyance tothe Superintendent. I therefore set aside the conviction and sentenceand acquit the accused.
Appeal allowed.