ORDER
Somasundaram, J.
1. This revision raises an interesting question of law, viz., whether a person who unlawfully enters into or upon the property in the possession of another so as to be guilty of criminal trespass can be held to be guilty of
the offence if he unlawfully continues to remains there with one of the intentions mentioned herein.
2. The facts of the case are these. House-No. 8, Barbers Bridge, second lane belonged to the accused who had mortgaged it to the complainant. The bank brought the property to sale and itself purchased it in auction. Execution was taken for delivery of possession of the property. On 23-8-1947, bailiff came and delivered vacant possession of the property to the complainant. Subsequently on the same day the accused broke open the lock and occupied the house. A criminal complaint was laid and the accused was convicted on 14-6-1948 for trespass and sentenced to a fine of its. 75. The accused paid off the fine and continued to remain in possession. On 26-6-1948 and 27-6-1948, an attempt was made by the complainant to get possession but it failed as the accused prevented the complainant party from taking possession. On these facts the lower Court convicted the petitioner for house trespass, on the ground that there was a fresh cause of action on 26th and 27th June 1948 when the attempt by the owner was resisted by the accused and what was criminal at its inception does not cease to be so by successful continuance.
3. Mr. Srinivasagopalan contends that after the delivery of possession on 23-8-1948 when. the accused entered upon the property it was criminal trespass for which he has been convicted on 14-6-1948 and the subsequent continuance or remaining on the property is not an offence within the meaning of Section 441, Penal Code. Section 441, Penal Code, is as follows ;
“Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in poses-sion of such property. Or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence is said to commit criminal trespass.”
It consists of two parts, the first part relates to entry into or upon the property in the possession of another. The latter part relates to unlawful remaining, having lawfully entered into or upon the property.
4. In this case the accused has been convicted on 14-6-1948 under the first part for having unlawfully entered into or upon the property on 23-8-1947.
5. His continuing to remain unlawfully will be an offence only if it falls under the second part of Section 441, Penal Code, and for the second part it will be an offence only if he having lawful entry unlawfully remain on the property. Now in this case having unlawfully entered on 23-8-1947 and having been convicted
for it, can he be convicted for continuing to remain, after that unlawfully.
6. In Saiba v Gaffoor, A. I. R. (19) 1932 Nag. 112 : (33 Cr. L. J. 861) it has been held that remaining in possession of property after unlawful entry is not a fresh offence of criminal trespass. This decision lays down that
“to constitute criminal trespass as defined in Section 441, Penal Code, there must either be entry upon the property in the possession of another or unlawful continuance therein after a lawful entry.”
MacNair J. who decided the case refused to follow the decision in Emperor v. Bandhu Singh, 6 Pat. 794: (A.I.R. (15) 1928 Pat. 124 : 29 Cr. L. J. 99) where it was held
“that each time the true owner goes upon the land or makes a claim under circumstances sufficient in law to constitute re-entry and the trespasser opposes him with the intention required by Section 441 a new offence under that section is committed and a new liability arises.”
The decision in Saibaj v. Gaffor, (A. I. R. (19) 1932 Nag. 112 : 33 Cr. L. J. 861) was followed in Anantram v. Emperor, A. I. R. (27) 1940 Nag. 117 : (41 Cr. L. J. 315) where Niyogi J. held
“that the view in Emperor v. Bandusingh ; 6 Pat. 794: (A. I. R. (15) 1928 Pat. 124 : 29 Cr. L. J. 99) cannot prevail in the face of the plain terms of Section 441, Penal Code….It is clear that the offence of criminal trespass is complete as soon as there is unlawful entry. It is a continuing offence only when the entry is lawful and the subsequent possession becomes unlawful.”
In Emperor v. Baldeo, 56 ALL. 33 at p. 37 : (A.I.R. (20) 1933 ALL. 816 : 35 Cr. L. J. 347) Bajpai J. observes :
“The contention of the accused is that the second provision comes into play only when the entry of the accused in the first instance is lawful and the continu.ance in possession unlawful with the intent mentioned in the provision. Ex hypothesi in the present case the entry itself was unlawful and therefore it is submitted on behalf of the accused, the second provision of the section cannot be invoked in aid by the prosecution. A literal reading of the section might lend some support to this argument but a literal interpretation of the same would lend us in an anomaly, because it would then mean that a lawful entry followed by unlawful continuance would be punishable whereas unlawful entry followed by unlawful continuance in possession would not be punishable.”
In this he cites with approval the observations in Emperor v. Bandusingh, 6 Pat. 794 : (A.I.R. (15) 1928 Pat. 124 : 29 Cr. L. J. 99) :
“In my opinion Section 441, Penal Code, substantially reproduces the English law. It provides that if the trespasser having entered lawfully remains unlawfully on the property with intent to annoy he will be said to commit criminal trespass. In my opinion no less punishable is an unlawful entry followed by an unlawful continuance of occupation.”
7. But in Emperor v. Jamuna Das, I.L.R. (1944) ALL. 754 : (A. I. R. (32) 1945 ALL. 26 : 46 Cr. L. J. 211) Mathur J. does not agree with the view of Bajpai J. and says :
“that it would certainly not be punishable under this section. It might be punishable under any other section but not under Section 441 read with Section 448, Penal Code.”
There is no decision of this Court on this point. The section creates only one o;t’ence and it defines what it is. It is committed in one of the ways mentioned and not in both ways. As pointed out in Saibaj v. Gaffoor, A. I. R. (19) 1932 Nag. 112 : (33 Cr. L. J. 861) the offence is complete as soon as there was unlawful entry and it falls within Section 441, Penal Code. He cannot be prosecuted again for remaining there as he has already been convicted under Section 441, Penal Code. The plea of autrefois convict will be open to the accused in such cases and the present conviction is therefore unsustainable.
8. The conviction and sentence are set aside and the petitioner is acquitted. The fine, if paid, will be refunded.
