135-NLR-NLR-V-14-SUPPAIYA-v.-PONNIAH-et-al.pdf
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Present: Wood Renton J.SUPPAIYA v. PONNIAH et al>P. C. Matale, 31,154.
Criminal i espass—Intention to intimidate or annoy—Bona fide claim ofrPenal Code, s. 433.
An unlawful act of trespass committed with an intention tointimidate or annoy is criminal trespass, even if the trespasser hadsome ulterior object in committing it. Intention to intimidate orannoy will be presumed from foreknowledge that intimidation orannoyance will be the natural result of an act.
Wood Benton J.—When once an act of unlawful interferencewith the possession of property, under circumstances disclosing areal intention to intimidate or annoy the possessor, has beenestablished, the offence of criminal trespass has been committed;and in such a case I should not be disposed to whittle away theeffect of the law by curious refinements as to whether an ulteriorobject that the trespasser may have had in view constituted hispritnary or only his secondary intention. Nor do I see why, inregard to criminal trespass alone, the ordinary rule of law and ofcommon sense, that a man may fairly be held to have intended thenatural consequences of his acts, should be excluded.
rjAHE facts are fully set out in the judgment.
Bawa, for accused, appellants.
Hayley, for respondent
…Cur. adv. vult.
September 8, 1909. Wood Renton J.—
This case offers a typical illustration of a far too common sequelto a land action in Ceylon. The appellants, Ponniah and Dora-kannu, together with three others, were convicted in the Police
1 This report is taken over from Balasingham's Report (Vol. 4, p. 157),where I had reported it before I was appointed Editor of the New Law Reports.
Sept. 8, 1909
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Sept. 8, 1909
Wooi>
Renton J.
Suppaiyu v.Pmmiah
Court of Matale of criminal trespass. Ponniah was sentenced to paya fine of Rs. 100, and to give security in Rs. 250 for good behaviourfor six months. Dorakannu to pay a fine of Rs. 10. The facts asfound by the learned Police Magistrate, are these. In 1904 Kirigal-pottewatta, the land on which the criminal trespass was effected,was sold to Ponniah by one Boulton. At the time of, and for someyears previous to, this sale the compliant had been in possession.Ponniah thereupon instituted an action against the complainantand some others in the District Court of Kandy (S. C. 238 D. C. F.Kandy, No. 17,343) claiming a declaration of title to the land inquestion. After two trials and several appeals to .the SupremeCourt the case dismissed. Ponniah thereuopn obtained a deedfrom one Muttiah, an added party in the case (D. C. Kandy,No. 17,343), for an undivided half of the land, and proceeded to asserthis alleged title otherwise than with the sanction and assistance ofthe courts of law. On January 29 in the present year he com-menced tentative operations. He came to the land with a party often or twelve others, did a little weeding, and plucked some coco-nuts, in spite of the protest of the complainant, who was in possessionof the land, and had a right to possess it as the result of the civillitigation, and went away. The complainant obtained a report fromthe Arachchi, but, on his advice, took no immediate proceedings, aslittle damage had been done. Emboldened by the success of hispreliminary foray, Ponniah returned to the land on February 5with a gang of ten or fifteen men, including the second appellant,Dorakannu, who is apparently his servant, and the third, fourth,and fifth accused. The gang was armed with sticks and guns. Atthe time of the raid the complainant, his wife Papathie, and severalcoolies were working on the land. Ponniah pushed the woman, andtold her to stop working. When the complainant protested,Ponniah said : “ I have purchased the land ; if you have any right,you had better go to Court.” The complainant offered no resist-ance, being intimidated, as he said, by the presence of the armedgang, but went direct to the Police Court and filed the informationin the present case. On February 8 Ponniah reaped the fruits ofhis victory. He came back to the land with a cart, plucked about1,200 coconuts, and took them away.
The defence of these high-handed proceedings that has beenurged in appeal is the familiar plea of a bona fide claim of right.From a careful examination, both, of the evidence in this case andof the record in D. C. Kandy, 17,343, which I have called for andpersued, I*think that the learned Police Magistrate was fully justifiedin concluding that Ponniah knew that he had, in any event, nopresently enforceable right to the possession of the land in dispute,or of its produce, as against the complainant, and that he intendedto take unlawful possession of it by intimidation. I should myselfbe disposed to put the case against him much higher, as the result of
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my own examination of the evidence. But I purposely leave it on thelevel of the findings of the Police Magistrate, as I desire to answerthe question, which is constantly coming before us in the AppealCourt, whether under such circumstances a plea of bom fideclaim of right is available. I put aside at once as irrelevant to theissue such cases as Sourjah v. Fernando.5 I had occasion recentlyin 406, Municipal Court, Colombo, No. 3,464,1 2 to call for the recordin that case. It was a prosecution by the Municipal Council foralleged encroachment. The defendant adduced evidence raising astrong primd facie case of title, and the Supreme Court naturallyand, if I may say so, properly, held that the matter- was not onefor adjudication before a criminal tribunal. It is obvious that thatdecision can find no application here. Of the second group of caseswith which I was pressed in appeal, Queen Empress v. Rayapadayachi3may be taken as an example. These are cases of house trespassby night for the purpose of prosecuting an intrigue, and the ratiodecidendi is that, as the real primary motive of the trespasser issomething quite different from an intention to annoy, his offence,whatever else it may be (and under the Indian Penal Code suchhouse trespass does, under certain circumstances, amount to acriminal offence—see Balmakand Ram v. Ghansan Ram,4 PermanundoShaha v. Brindabun Chung6), is not criminal trespass with intentto annoy under section 441, even if annoyance may, in fact, be insome measure foreseen as a possible or probable result of it. It isunnecessary to discuss these authorities here, where we have apositive finding—and ample evidence to support it—of an intentionto intimidate.
I come now, in the last place, to the Indian cases bearing directlyon the plea of bona fide claim of right. I have examined all of thoseto which I could obtain access here. In my opinion they showconclusively that the plea of bom fide claim of right is not open to anaccused person in the position of Ponniah. I will give an illustrationfirst of the class of circumstances under which that plea is, and thenof the class of circumstances under which it is not, recognized bythe Indian Courts. In In re Gobind Prasad,6 Gobind Prasad, Chaw-rasi his wife, and his brother Kalika had jointly mortgaged certainundivided property to Ram Datan Das. The mortgagee foreclosed.Chawrasi and Kalika appealed. The appeal succeeded, but thedecree held good against Gobind Prasad, and the property wasdelivered to the mortgagee in the execution of that decree. Chaw-rasi remained in possession in bom fide assertion of her rights, andGobind Prasad did likewise, honestly believing that the grounds ofChawrasi’s successful appeal applied equally to him, and also that,as the property was joint, he was entitled to remain, so as to assert
1 {1908) 2 Weer n.■> {1894) I. L. R. 22 Cal. 393.
ZS.C. Min., Aug. 24, 1909.5 {1895) lb. 994.
3 {1896) I. L. R- 19 Mad. 240,6 {1879) I, L. R. % All. 465.
16-
Sept. 8, 1909
WoodRenton J.
Suppaiya v.Ponniah
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Sep*. 8,1909 the right of his co-owners. Straight J. held that neither ChawrasiWood nor her husband could be convicted of criminal trespass. UnderRenton j. similar circumstances, no Court in Ceylon would hesitate to applyHuppaiya v. the same rule. But the category to which the present case reallyPonniah belongs is illustrated by the Indian case of Golap Pandey v. Boddam.'
During the pendency of a civil suit against Mr. Boddam, certainpersons, on behalf of the plaintiff, went on to his premises for thepurpose of making a survey, and for getting materials for a hostileapplication against him. They went—some of them armed—without Mr. Boddam’s permission, and in his absence, and when hisservants objected to their action, they persisted in the trespass, andendeavoured to prevent opposition by making false statements asto the authority under which they acted. The High Court held thatthey were guilty of criminal trespass. Trevelyan J. and Beverley J.disposed summarily, and in the following terms, of the plea that nooffence had been committed, as the object of the intruders was onlyto survey the premises :—
No doubt that was their primary object, but when we find themgoing on to the premises in Boddam’s absence, and without his leave,and taking three swords with them, we think it clear that they intendedto intimidate Mr. Boddam’s servants into not opposing their enteringupon the premises, which, from their relation with Mr. Boddam, theymust have known he would have objected to their entering. It is truethat they seem to have to some extent attempted to avoid discovery,but when accosted by Mr. Boddam’s servants they persisted in theirtrespass, and endeavoured to prevent opposition by the false statementthat they had been sent by the orders of the Bengal Government. Thetrespass was most unwarrantable, and if it were to be tolerated, thatwhile two persons are litigating as to a property, one may go armed onto the property of which the other is in possession, for the purpose ofgetting materials for an hostile application, breaches of the peace wouldbe frequent.
I know of no Indian case that in any way conflicts with thisdecision. On the contrary, there are authorities that go further.In Reg. v. Ram Dyal Mundla,2 Markby J. held that forcible entry on• land in the possession of another is criminal trespass, although theaccused claim the land irrespective of the question in whom the titleto the land is ultimately found to be. In Emperor v. LakkshmanRaghunath3 accused No. 1, who held a decree against a judgment-debtor, went with his son, accused No. 2, and a Civil Court bailiff toexecute a warrant. Finding the door of the judgment-debtor shut,they entered his compound by passing through the complainant’shouse, without his consent and notwithstanding his protest. TheHigh Court of Bombay held that they were guilty of criminaltrespass, for when they entered the complainant’s house in spite ofhis protest, they must have known that they would annoy him.
> (1889) 1. L. B. 16 Cal. 715.* (1867) 7 W. R. Crim. 28.
* (1902) I. L. R, 26 Born. 558.
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“ It cannot be disputed,” said Fulton J., “ that mere knowledgeof the possibility of annoyance resulting from an act of trespass is notsufficient to bring the case within the definition, but at the sametime it must be remembered that the word ‘ intent ’ cannot be read asif it were identical with ‘ wish ’ or ‘ desire *. There may be no wish toannoy, but if annoyance is the natural consequence of the act, andif it is known to the person who does the act that such is the naturalconsequence, then there is an intent to annoy. Most acts in thecommon course of natural events and human conduct lead to a seriesof results, and if these results are foreseen by the person doing theacts, they cannot be said to be caused unintentionally. The ultimateobject may be something different, but the person intends all theintermediate results, which he knows will happen in the naturalcourse of events, even though he may regret that they should happen.When it is uncertain whether a particular result will follow, there maybe no intent to cause that result, even though it may be known thatthe result is likely. But it seems impossible to contend, when anact is done with a knowledge amounting to practical certainty, thata result will follow, that it is not intended to cause that result.”
I have, in the main, confined my examination of the case law inregard to the plea of bona fide claim of right to Indian authorities,because it is with the supposed Indian law on the subject that on thestrength of one passage in Mayne (Criminal Law of India, 3rd ed.,pp. 794-5) and another in Starling (Indian Crim. Law., 8th ed.,p. 629)we are constantly pressed in appeal. I have endeavoured to show,that under the Indian decisions an unlawful act of trespass—toconfine ourselves to the class of cases now under consideration—committed with an intention to intimidate or annoy is criminaltrespass, even if the trespasser had some ulterior object in committingit : and that foreknowledge that intimidation or annoyance will bethe natural result of an act is treated as equivalent to intention.The current of local judicial authority in regard to the meaning.ofintention is in the same direction. See e.g., Wilson v. Gault,1Rodrigo v. Fernando,2 Veronia v. Pedro Santia,3 and there are un-reported decisions also on the point. When once an act of unlawfulinterference with the possession of property, under circumstancesdisclosing a real intention to intimidate or annoy the possessor, hasbeen established, the offence of criminal trespass has been committed:and in such a case I should not be disposed to whittle away the effectof the law by curious refinements as to whether an ulterior objectthat the trespasser may have had in view constituted his primaryor only his secondary intention. Nor do I see why, in regard tocriminal trespass alone, the ordinary rule of law and of commonsense, that a man may fairly be held to have intended the naturalconsequences of his acts, should be excluded:
1 (1808)3 N. L. R. 211.3 (1899) 1 N. L. R. 176.
3 (1883) 7 S. O. C. 33.
Sept. 8, 1909
WoonRenton J.
HupjKtvja v.Potint'ah
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Sept. 8, 1000
WoodHeston J.
Sup/miya v.Ponniah
I have no doubt but that, in the case of each appellant, theconviction must be affirmed. I have anxiously considered thequestion of the sentences. The case is a bad one in itself, andit belongs to a peculiarly mischievous type. Ponniah was wellaware (i.) that the complainant has a right to the possession ofthe land, and (ii.) that he himself had no right to it under hisdeed from Muttiah. Instead of seeking assistance from the courtsOf law, when he found that his intrusion was resented, he hadrecourse to one of those impudent and dangerous attempts – tosubstitute armed violence for civil litigation as a mode ofacquiring property, which are intolerable in a civilized community.If his operations had been resisted by the complainant, the almostinevitable sequel would have been a trial for grievous hurt ormurder in the Assize Court; and then, when a prosecution isinstituted, he falls back on the well-worn defence of bom fide claimof right. The plea is one that, in cases of this character, I regardwith profound distrust. The ordinary villager knows well thatthe civil tribunal is at his door ; and, as the mass of litigationin the Colony shows, he displays no coyness in invoking its aidwhen he thinks that he has a real grievance against his neighbour.It is for the most part claims that are known to be either unfoundedor exceedingly doubtful that are sought to be enforced in Ceylonwithout due process of law. But whether his claim be good or bad,it is essential to the orderly administration of justice, and to thesafety of human life in this Colony, that the villager should be taughtthat he must look for its enforcement to the arm of the law alone.The imposition of a fine on people of the stamp of Ponniah is of littlevalue as a deterrent to them or to others. They regard it merelyas the result of an untoward turn in the wheel of a civil or quasi-civillitigation, with which every man who goes to law must reckon, andwhich is amply made up for by the annoyance that they havesucceeded in causing to their opponents. What is needed in suchcases as this is punishment—punishment extending both to theprincipal offender and to his henchman, whosejine is invariablypaid by his master, and whp, if only a fine is imposed, enjoys theluxury of taking part in a fray, and of gratifying incidentally anyprivate grudges of his own with absolute impunity. The originalnon-summary proceedings in this case were abandoned on thedirection of Crown Counsel. It remains, however, a most seriouscase of criminal trespass. I set aside the entire sentences passed onthe appellants. The fines must be returned. Ponniah will undergothree months’ and Dorakannu one month’s rigorous imprisonment.It might serve a useful purpose if the proper authorities should seefit to direct that the result of this appeal should be made widelyknown in all the country districts through the agency of the PoliceCourts and the superior headmen.
Conviction affirmed; sentence enhanced.