William Comer Petheram, Knight, C.J. and Beverley, J.

1. On the 7th of April 1894, the Chairman of the MonghyrMunicipality forwarded to the Magistrate of the District a report by Mr. Evans,a Municipal Commissioner, complaining of the conduct of Chandi Pershad, with arequest that he might be prosecuted, if in the opinion of the Magistrate anycriminal offence had been committed by him. On the 12th the Magistrate madethis order: "The applicability of Section 228, Penal Code, is doubtful.But an offence appears to have been committed under Section 448, Penal Code. Idirect prosecution under that section. To the Joint-Magistrate." The trialwas commenced on the 28th, before Mr. Jarbo, a Deputy Magistrate. On that dayMr. Evans himself was examined as complainant, and as for the purpose of whatwe have to say we accept his statement as absolutely accurate, and as his casecannot, of course, be put higher than he puts it himself, we think it best thathe should tell his own story, which is as follows:

On the 6th April, I think it was, I and Mr. Thomas and aNative gentleman, whose name has slipped my memory, were sitting as a RevisionCommittee of the Municipal Board hearing, and deciding petitions. This was in aroom adjoining the public office room. The present accused, Babu ChandiPershad, came into the room uncalled. No one was allowed into the room unlesssent for. I had warned this man on the very first day of our sitting. I believeit was the 18th March, Dr. Vaughan being present. Chandi had entered this roomof ours and interrupted us. He did so ostensibly to present a petition ofrevision of assessment. We told him then that having reconsidered the matter wehad passed orders upholding the assessment, and we would not alter thorn. Herefused to go and we had to turn him out. Ever since then he has been comingworrying us to reconsider our order and prevented our work going on. On the 6thApril he entered our room. He walked round to where the petitions were beingsorted on the floor and began pulling them about. As Chairman of the Committee,I ordered him to leave the room. He took no notice of my order and then Mr.Thomas spoke to him. He took no notice of that order either, and I rose and hadto turn him out. He then said: Yihan hooch insaf nahin hai, sub be-insaf. Iwent back to my chair and resumed work. In the course of ten minutes there wasa hubbub in the east verandah.] went out and saw the present accusedgesticulating to the crowd and stating that no justice could be obtained. Thiswas in the verandah, and I told him to leave it. He Said he had a right to staythere. I called for a constable then every one left. I called for a constableas accuseds manner was insulting to us and exciting to the crowd and I feareda breach of the peace.

2. Some witnesses were examined on the same day, and acharge was framed, after which the trial was adjourned to the 4th of May forthe accused to summon his witnesses. On that day two witnesses were examinedfor the defence, and the Deputy Magistrate gave his judgment, by which heconvicted the accused of an offence under Section 448, and sentenced him to paya fine of Rs. 200, or in default to 14 days rigorous imprisonment. Thisjudgment was afterwards upheld by the Sessions Judge on appeal, and this rulewas obtained from a Division Bench of this Court on the 17th of July to revisethe whole proceeding.

3. In answer to the rule the District Magistrate, Mr.Phillips, has written a letter to the Registrar of this Court which, as weunderstand it to be his wish that his arguments should be made public, we havehad copied here. It is as follows:

Sir, In reply to letter No. 2141, dated 19th July 1894, Ihave the honour to forward the record of the case called for, and to show causeas follows: A letter from the Deputy Magistrate, Mr. Jarbo, is herewithsubmitted.

" Grounds : I. Even if it be admitted for the sake ofargument that the first and original entry of the petitioner was not withintent to intimidate, insult or annoy, it is clear that, after he had beenordered to leave, he remained with one of such intents. The petitionersconduct appears to have been outrageous and most insulting to the MunicipalCommissioners sitting, Mr. Thomas and the Rev. Mr. Evans. He interrupted andobstructed their work, and as Municipal Commissioners are public servants, thepetitioner might have been convicted under Section 186, Penal Code, also.

" II-VII. All these grounds have been dealt with by theDeputy Magistrate and the Sessions Judge on appeal. If this petitioner hadbehaved decently, quietly, and with ordinary respect, probably nothing wouldhave happened. I know of no absolute right to enter a Municipal Office.Accounts are open to the inspection of any tax-payer on a day or days to befixed in each month (Section 711, Bengal Act III, 1884). The budget is open toinspection for fourteen clays at all reasonable times (section 78). Then bySection 117, the Commissioners declare at what hours of each day the officeshall be open for the receipt of money and the transaction of business. Thepetitioner, as a matter of fact, did not want to see accounts or to pay inmoney. The Revision Committee were sitting as a Court in a room, which is setapart for their so sitting. Till quite recently it was used as the Court of theBench of Honorary Magistrates. I was of opinion that probably Section 2282,Penal Code, did not apply, as the Commissioners were not a Court. If they werenot a Court, then the provisions in the Procedure Code as to open Courts wouldnot be applicable, and even supposing they were applicable, that would notprevent the Commissioners from making due arrangements for the propertransaction of the business before them. They were absolutely within theirrights in directing that only those who were called should come in. The room isa small one and not spacious like a Court. The petitioner begs the issue whenhe speaks of his right to enter for a lawful purpose. As regards the fine, Ihave ascertained from the Income Tax Office, that the petitioner pays an incometax of Rs. 143-3-8. He is reputed to be a wealthy man.-I have the honour to be,&c, (Sd.) H.A.D. Phillips, Magistrate.

4. The broad question we have to consider is whether, uponthe facts as stated, the offence of house-trespass, as defined in Section 442,Penal Code, has been committed by Chandi Pershad against Mr. Evans. We sayagainst Mr. Evans, because the offence, if any was committed, was not one forwhich the Commissioners could prosecute and could throw the expenses on therates under Section 352 of the Municipal Act, but was an offence against thecomplainant, Mr. Evans alone, which he could himself compound for anysatisfaction, pecuniary or otherwise, made to himself, under Section 345 of theProcedure Code. Whether the charge is made under Section 4413 or Section 442,the prosecution must prove that the property trespassed upon was at the time inthe possession of a complainant who could compound the offence under Section345 of the Code, and as this is the case, we think the charge must fail, evenif there were no other reason, on the ground that the complainants ownstatement, so far from showing that the room was in his possession, shows thatit was not, but that he was merely sitting in it with other persons at theinvitation and with the consent of the person, whoever he may be, as to whichwe know nothing, who is in possession of the room in the well understood sensethat he is the person to whom the right to immediate possession belongs. Buteven if it were shown that the room was in the possession of Mr. Evans at thetime, or that it was a building used as a human dwelling, a place for worship,or a place for the custody of property, still it would be necessary, undereither section, for the prosecution to prove that the accused trespassed in it,with intent to commit an offence, or to intimidate, insult, or annoy someperson who was in possession of the room, and upon Mr. Evans own statement, itis, we think, apparent that the accused did not enter the room, or remain init, for any or either of such purposes, but his only object in going andremaining there was to endeavour to induce Mr. Evans and his colleagues toreconsider their decision.

5. The appellants grievance was that his appeal against theassessment had been disposed of in his absence, and as we observe from thejudgment that there are sometimes as many as 600 petitions to hear in a day, itmay be possible that some of them may not be as fully heard as the appellantswould wish. Moreover, the verbal insult which the Magistrate finds constituteda part of the offence was, on the evidence, uttered after the petitioner hadleft the room, and was addressed to the crowd outside.

6. We are perfectly well aware that it is extremely annoyingto be compelled, or even persistently entreated, to reconsider a matter whichhas been already disposed of, to the best of the ability of the person who hasdisposed of it, but we must say that this is the first time we ever heard itsuggested, that it is a crime or an insult to present a petition of review,even if it is pressed in such a way as to worry and distress the person to whomit is presented, and if the useless consideration of it prevents him fromattending to his other business.

7. We are of opinion that the rule must be made absolute.The conviction will be set aside and the fine, if paid, must be refunded.

1 Account books to be kept open and quarterly statementpublished.

[Section 71: The account books of the municipality shall beopen to the inspection of any tax-payer at the office of the commissioners on aday or days to be fixed in each month.

An account showing the receipts and expenditure during thequarter, arranged under the proper heads and duly balanced, shall be preparedimmediately after the close of each quarter, and shall, with the account books,be open to the inspection of any tax-payer.

A similar account shall be prepared for each year as soon aspossible after its close, and shall be open to inspection as aforesaid.]

2 Intentional insult or interruption to a public servantsitting in any stage of a judicial proceeding.

[Section 228: Whoever intentionally offers any insult orcauses any interruption to any public servant while such public servant issitting in any stage of a judicial proceeding, shall be punished with simpleimprisonment for a term which may extend to six months, or with fine which mayextend to one thousand rupees, or with both.]

3 Criminal trespass.

[Section 441: Whoever enters into or upon property in thepossession of another with intent to commit an offence or to intimidate,insult, or annoy any person in possession of such property; or having lawfullyentered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult, or annoy any such person, or with intent to commit anoffence, is said to commit criminal trespass.]

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Chandi Pershad vs.Evans (13.08.1894 - CALHC)