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SPELDEWINDE v. WARD.P. C., Nuwara Eliya, 16,017.
Criminal trespass—Penal Code, s. 438—Ejectment under writ of District Court—Re-entry of person ejected—Intention to annoy the owner—Unoccupiedland.
The Fiscal, in pursuance of a writ of execution, ejected A froma land decreed to he the property of B, and put B's agent C inpossession. C occupied it for a few days and went away, when Are-entered.
Held, that A. was rightly convicted of criminal trespass. –
HE complaint against the accused was that on the 15th May,1902, the Fiscal, in pursuance of a decree pronounced in the
District Court of Kandy in cue 'No. 12,924 and of the writ ofpossession issued thereon, delivered over the land mentioned inthe writ, which was a plot of patana and scrub land of about
February 28and 26.
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1903.8 acres in extent, to a representative of the Secretary of State for
February^ S3 War (who was the plaintiff in the District Court case), after remov-aw<* ^ ‘ ing therefrom the accused, who was the defendant in the said case;
that Sergeant Hannan, who took charge of the land on behalf ofthe Secretary of State for War, was in possession till the 18thJune, 1902, when he left, the property; that on the 20th Junethe aocused re-entered the premises with his family and cattle, andhas continued there with intent to annoy the Secretary of Statefor War, and that thereby he has committed criminal trespasspunishable by section 433 in the Penal Code,
The accused did not wish to cross-examine any of the witnessesfor the prosecution, nor call any witnesses on his own behalf, butcontended that, as Sergeant Hannan quitted the premises andthere was no one in occupation thereof, he went in and stayed inthe house, having no other place to go to, and that merely remainingon the property without right or title was not criminal trespass,because ho had no intent, nor was any intent proved on his partwhen he entered the property or after such entry, “ to intimidate,insult, or annoy any person,’’ as set forth' in section 427, whichdefines the nature of criminal trespass.
The Police Magistrate held that, after the ejectment of theaccused and the letting in of the Secretary of State for War, theproperty must be taken to be in the possession of the Secretary ofState for War, and that the re-entry of the accused was initself evidence of intent to annoy the Secretary of State forWar.
The Magistrate found the accused guilty and sentenced him topay a fine of Bs. 50.
The accused appealed.
The case was argued before Moncreiff, J., and Middleton, J., onthe 23rd February, 1903.
Domhorst, for appellant.—The offence laid must be proved.There is no evidence of criminal intent. Mayne’s CriminalLate of India, 734 (1896); Starling’8 Indian Criminal Law, 531(1893); re Qovind Prasad, I. L. R. 2 All. 465, where Mr. JusticeStraight said: “I cannot agree in the argument that where anentry upon property is in itself illegal, that is sufficient to establishone of the criminal intents required by section 441. Becausean act is illegal in the sense that it is a breach of a man’s duties andobligations under the CiviTTjaw to obey and submit to any processthat is sought to be enforced against him by executions orotherwise, it does not follow as a necessary consequence that thatact is criminally unlawful and therefore punishable. The intent
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with which the act is done, must be established by clear and 1003.convincing evidence of such character and description as the parti-03
oular nature of the case requires. ” Pulle v. Chinasekere (1 S. C.
R. 77); Smith v. Ahamado (1 G. L. R. 17). The accused, havingno other house to go to, found the land unoccupied and enteredit. His intention was not to annoy any person, but only to find ahabitation for himself.
Elliott, for respondent.—The War Office is the owner of theproperty, and it was in occupation at the time of the re-entry ofthe accused. Stroud’s Judioial Dictionary, s: v. “ occupation,”and cases quoted thereunder. Annoyance was intended, becausehe went knowing that the land not his. In view of the opinionexpressed by Lawrie, J., in Dasanayaka v. Tamby Ghetty (1 8. 0.
R. 257), that the penal provision of section 326 of the CivilProcedure Code does not apply to the offence of hindering ajudgment-creditor from taking complete possession after the officerhas delivered possession, it did not seem advisable to moveunder section 326. Abeyedire v. Marikar (2 N. L. R. 19). Ifnecessary the charge may be laid under section 326 and theconviction affirmed.
Cur. adv. vult.
26th February, 1903. Moncreiff, J.—
I think this conviction should be affirmed. The appellant wasejected from premises situated at Nuwara Eliya, and belongingto the Secretary of State for War. This was done in pursuance- of a decree, which was affirmed on appeal by this Court on the29th October, 1901. In that case the appellant had no merits, andthe law was held to be against him. I think his action wasintentionally vexatious.
On the 16th May Sergeant Hannan was, in pursuance of thedecree in No. 12,924, D. C., Sandy (reported in 2 Browne, 256),put into possession of the premises on behalf of the Secretary of8tate for War. He quitted the premises on the 18th May, andshortly thereafter the appellant resumed possession. The appellantnever had any shadow of title to remain on the land or to re-enterit. He knew he would be ejected, but he also knew that theprocess of law is slow; and, having remained on the land until thehearing of this appeal was approaching, he again left it.
He was convicted and sentenced to pay a fine of Bs. 50, or indefault of payment to undergo one month’s rigorous imprisonment,on a charge of committing criminal trespass, within the meaningof section 483 of the Penal Code.
It was urged (1) that although he did .enter upon the premisesshortly after Sergeant Hannan left them, they were not in theoccupation of anybody : (2) that he did not enter with intent toannoy or insult any person in occupation of the premises. Fromthe circumstances of the case, I have no doubt of the intention toannoy, nor do I see any reason for the pretence that, the landwas unoccupied. It is useless to contend that land is unoccupiedbecause, for their own reasons, the owners of it leave it without acaretaker, and without making any use of it for some months.The land belongs to the Secretary of State for War, and was leftas it was because there was an intention of building upon it. Anynumber of illustrations might be given to show the absurdity ofthe contention that the land was unoccupied. While affirmingthe conviction I remit the fine, and send the case back in orderthat the Magistrate may bind the appellant over to keep the peaceon such terms as he may think advisable.
I would add that I am not disposed to think that the complain-ant could not proceed under sections 825 and 326 of the CivilProcedure Code.
Middleton, J,—I agree.
SPELDEWINDE v. WARD