@JUDGMENTTAG-ORDER
Padmini Jesudurai, J.@mdashThe above appeal is by the complainant in a private complaint against the respondents before the 17th Metropolitan
Magistrate, Saidapet, Madras, taken on file by him as C.C. No. 6605 of 1982 for offences under Ss. 448 and 427, I.P.C. and is directed against
the judgment of the above court acquitting the respondents herein of the above offences.
2. The appellant preferred a private complaint against the four respondents on the allegation that from P.W.2, who is the husband of the first
respondent and father of respondents 2 to 4, be purchased a house in door No. 22 North Boag Road, T Nagar, Madras 17 by a registered sale
deed dated 16.7.1982 and that the property, having been purchased by P.W.2, was the exclusive property of P.W.2 and that the respondents had
no manner of right, or title to it and on 16.7.1982 after the execution of the sale deed Ex.P3, P.W.2 took him to the scene house at about 4:30
p.m. and put him in possession of the house and P.W.2 asked the respondents to vacate the house, which the respondents refused and the
respondents flew into rage and intimidated and caused criminal annoyance and also showed criminal force and had thereby committed an offence
punishable under S. 448, I.P.C. There was a further averment that on 24.7.1982, the appellant came to know that on the previous day a mango
tree in the premises had been cut and removed by the respondents, and had, therefore, committed an offence under S. 427, I.P.C.
3. During trial, on behalf of the appellant, P. Ws.1 to 3 were examined and Exs.P1 to P6, were marked. The respondents, when questioned,
contended that they did not commit any offence and that they were not aware that the scene house had been sold. The respondents did not
examine any witness on their behalf and no documents was marked on their side.
4. The trial court, on the evidence placed before it, found that though the respondents had abused P. Ws.1 and 2 and had asked them to leave the
scene house, yet their conduct did not attract S. 448, I.P.C, and that, therefore, they were not guilty under that section. The trial court also found
that here was no material to show that the respondents had cut the mango tree and hat, therefore, the offence of S. 427, I.P.C. also had not been
made out. All the respondents were acquitted of all the charges. The aggrieved complainant has preferred this appeal.
5. Thiru N. Natarajan, learned Counsel or the appellant, contended that the trial court, having specifically found that the respondents, who were in
occupation of he scene house, had abused P. Ws.1 and; and had sent them out and had also refused to vacate the house, should have also found
that the ingredients of S. 448, I.P.C were made out. According to the earned counsel the offence would fall under he second limb of S. 441,
I.P.C, which is the definition section, in that the respondents, though their initial entry in the scene house was lawful, had unlawfully remained there
with intent to intimidate, insult and annoy. P.Ws.1 and 2. Learned counsel also submitted d that the complainant had clearly provided that scene
house belonged exclusively to. P.W.2, having been purchased by him from out of his own funds the respondents had to right of their own. The
suggestion put to P.W.2, that the second respondent had made some improvements and had, therefore, come claim over the scene house had not
been suggested to P.W.1, and should, therefore, be rejected.
6. Per contra, Thiru Ashok Kumar, learned counsel for the respondents, submitted that on the day of the occurrence it was the appellant who had
forcibly tried to take possession of the scene house by throwing the respondents out of it and for that purpose the appellant had brought two of his
brothers and the quarrel that ensued was the subject matter of a criminal prosecution against the brothers of the appellant in which the said brothers
had admitted the guilt and had paid the fine and that, therefore, the prosecution case that it was the respondents who committed the offence could
not be accepted.
7. The question that arises for consideration is whether the acquittal by the trial Court could be justified?
8. Taking the offence under S. 448, I.P.C, it is seen that in the complaint P.W.1 has stated that on 16.7.1982, at about 4:30 p.m. P.W.2 took him
to the scene house and put him in possession of the said house and that at that time the respondents were occupying the house. It is also stated
that, shortly after the appellant was put in possession of the house, P.W.2 the previous owner, removed all his belongings and vacated the
premises. The offence under S. 448, I.P.C. is an offence not against ownership or title but is an offence against possession and occupation.
Considerations like exclusive title to the property, claims, counter claim, are alien to S. 448, I.P.C. In the instant case, it is the evidence of P.W.1
that even P.W.2 was not occupying the scene house at the time of the occurrence. It follows, therefore, that it is the respondents who had been in
actual possession of the scene house at the time of the occurrence. No doubt in the complaint, an averment is made that the premises owner
P.W.2 put P.W.1 in possession of the said house. This could not be actual physical possession since the house was really in the possession of the
respondents and P.W.2 had no possession which he could give to P.W.1. Even if the statement that P.W.2 handed over possession to P.W.1
could be taken as true, it could only mean symbolic or constructive possession which can have no significance in an offence under S. 448, I.P.C.
The appellant has not established that either P.W.2 or P.W.1 was in actual possession of the scene house so as to attract S. 448, I.P.C.
9. A reading of S. 441, I.P.C, makes it clear that either entry into or continuance of stay in a property in the possession of another would constitute
an offence under that section if the same is with an intention to commit an offence or intimidate, insult or annoy any such person in possession of
such property. The use of the word ''such person'' in the second limb of S. 441, I.P.C. clearly indicates that the intention to intimidate, insult or
annoy must be with reference to the person in actual possession. I have already found that the persons in actual possession are the respondents.
No offence, therefore, can be committed by them under S. 448, I.P.C. with reference to either P.W.1, who had not been put into actual
possession, or P.W.2, who was not in possession on the date of the occurrence. The facts, even if taken to be true, would not constitute an
offence under S. 448, I.P.C. The acquittal by the trial court, though on a slightly different reasoning has, however, to be confirmed.
10. It is also stated that appellant, examined as P.W.1 went to the scene house on 24.7.1982, and learnt that a mango tree that had been in the
scene house, had been cut by the respondents the previous day. In the first place, it is not known how this offence, which is said to have been
committed seven days after the previous offence, could ever be tried in a single trial when there is no averment that these offences were committed
in the course of the same transaction. On facts, the offences under Ss. 448 and 427, I.P.C. ought not to have been tried together. That apart, there
is absolutely no evidence to show that the respondents ever cut a tree. P. Ws.1 to 3 are silent on this aspect. The acquittal by the trial court for the
above offence has also to be confirmed.
11. In the result, the criminal appeal is devoid of any merit and is dismissed.
