047-SLLR-SLLR-1990-V-1-THE-ATTORNEY-GENERERAL-v.CHANDRAN-AND-ANOTHER.pdf
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The Attorney-General. v. Chandran and Another
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THE ATTORNEY – GENERAL
v.CHANDRAN AND ANOTHER
COURT OF APPEAL,
WIJEYARATNE, J.
C. A. No. 753/79 (M.C.) – M. C. COLOMBO 368123.
JULY 5, 12 AND 13, 1990.
Criminal Law – House trespass by erstwhile tenants – S. 434 of Penal Code – Occupation.
Where a husband and a wife who are the tenants of certain premises, owing to maritaldisharmony, decide to vacate the premises and they remove all their belongings and handover the keys by way of symbolic delivery of possession to the landlord's agent, it is clearby the conduct of parties that there is a cancellation of the lease by mutual agreement cfthe parties. Therefore the tenancy comes to an end. They are no longer tenants.
If they re-enter the premises they do so as trespassers without any lawful right and can beconvicted of house trespass under section 434 of the Penal Code.
“Criminal trespass’ as defined in section 427 of the Penal Code is a component of theoffence of house trespass set out in section 434.
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Sri Lanka Law Reports
(19901 1 Sri LR.
As to whether a person is in ‘occupation* within the meaning of section 427 of the PenalCode depends on the (acts and circumstances of each case.
When the landlord's agent, after he was handed the keys by the erstwhile tenants, verifiedthat no one was in occupation and took charge of the premises, it can be said that he cameinto ‘occupation’ of the premises within the meaning of section 427 though he was notphysically residing there.
The word ‘occupation’ does not by any means imply residence.
Cases referred to:
Trie King v. Selvanayagam 51 NLR 470
Chitravelu v. S. I. Police. Kantalai 61 NLR 39
Nandohamy v. Walloopillai 61 NLR 429
Fernando v. Holloway 60 NLR 90
Abeyewardena v. Rev. Siri Nivasa 57 NLR 531
Ukku Singho v. Andiris Silva 11 Times of Ceylon Law Reports 143
The Attorney-General v. Deonis (1909) 1 Weerakoon's Reports 13
Speldewinde v. Ward 6 NLR 317
Silva v. Silva 10 C. L. Rec. 107
Chandrasekera v. Jayanathan, S. I. Police 66 CL W 66
Nandoris v. Inspector of Police, Warakapola 77 NLR 304
APPEAL from order of acquittal of the Magistrate of Colombo.
C. Prematilleke, S. C. for Attorney-General.
Accused- Respondents absent and unrepresented.
Cur. adv. vult.
July 31, 1990
WIJEYARATNE, J.
In this case the 1st and 2nd accused-respondents (who are wile andhusband respectively) were charged with committing house trespassbetween 15.9.1975 and 21.9.1975 by entering into premises No. 50/3,Siripa Road, Narahenpita, Colombo 5, the dwelling of Jeevananda Silva,with intent to annoy him, an offence punishable under section 434 of thePenal Code.
According to the evidence, these premises had belonged to the lateG.P.J. Kurukulasuriya and they were in charge of Jeevananda Silva, whowas the duly appointed caretaker. M.B. Jayasekera (a lawyer) gaveevidence and said that he had arranged to give a portion of thesepremises to the two accused on rent.
According to the evidence, there had been disharmony between the1st and 2nd accused (wife and husband) and consequently they hadvacated the premises. By 14. 9.1975 four keys of these premises had
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been handed to Jeevananda Silva, by these two accused, two of themthrough the medium of M.B. Jayasekera. Jeevananda Silva thereafterhad closed all the doors and windows and verified that no one was inoccupation thereof. He said none of the goods of the accused were thereafter they had vacated the premises. He had then informed Dr. IndraPerera, the daughter of G.P.J.Kurukulasuriya.
On 21.1.1975 when he went there he had seen lights inside and whenhe had questioned who was inside, the 1 st accused had replied “ I am in".Thereupon he went and made a complaint at the Narahenpita PoliceStation on 21.9.1975.
On 22.9.1975 Sarathchandra Dissanayake, a Police Officer attachedto the Narahenpita Police Station, had visited the house for inquiry.The1st accused and another girl were there. He found that the inside of thefront door frame had been broken. The 1st accused had handed him akey.
At the end of the prosecution case the learned counsel for the defence •had made legal submission and cited certain decisions of the SupremeCourt.
Thereafter the learned Magistrate by his order dated 27.06.1978 hadmade order acquitting and discharging both accused.
The learned Magistrate in his order has stated that the possession ofthis house was in Jeevananda Silva, which possession he obtained afterthe keys were handed over by the accused. However, the learnedMagistrate has gone on to say that it was the intention of JeevanandaSilva to place Indrani Perera in occupation, but he failed to do so.Therefore he says that though the property was in Jeevananda Silva’spossession it was not in his occupation. Hence the two accused did notcommit an offence under section 434 of the Penal Code. He goes on tosay that after leaving the premises it appears that both accused hadbecome friendly again and retaken possession. He further states thatbeing tenants they may have re-entered these premises and committeda wrongful act, but they cannot be convicted under section 434. He goeson to say that section 434 cannot be availed of by the complainant as thisdispute should be resolved through an action in the civil court.
The learned Magistrate refers to the decision of the Privy Council inThe King v. Selvanayagam(i), Chitravelu v. S.l.Police, Kantalai (2), andNandohamyv. Walloopillai(3). He goes on to say that Jeevananda Silvadid not have occupation of these premises.
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Sri Lanka Law Reports
(1990] 1 Sri L.R.
From this order of acquittal the Hon. Attorney-General has tiled thisappeal.
At the hearing Mr. Chandana Prematillake, State Counsel, whoappeared fcrthe Attorney-General, made various submissions and citedvarious authorities.
Mr. Prematillake submitted that the learned Magistrate has understood“occupation" to mean actual residence or physical presence. InSelvanayagam's case the Privy Council held that section 427 (dealingwith criminal trespass, which is a component of the offence of house-trespass) was not intended to provide a cheap and expeditious methodfor enforcing a civil right. The Privy Council also held that there must bean occupier whose occupation is interfered with and whom it is intended' Jo insult, intimidate or annoy, unless the intent is to commit an offence. Itwas also held that the section has no application when the fact ofoccupation is constant, the only change being in its character as wherea tenant holds over after the expiration of his tenancy.
The Privy Council also held that the prosecution must prove (hat thereal or dominant intent of the entry was to commit an offence or to insultor intimidate or annoy the occupant. Also there must be proof that thetrespass is one calculated to cause a breach of the peace.
I shall first deal with the question of occupation. As laid down in thecase of Fernando v. Holloway (4), the question as to whether a personis in occupation of any particular premises is a question of fact anddepends on the circumstances of each particular case.-
In this case really both accused had vacated the house because theyhad left the house with all their belongings. They had handed all four keysof the house to Jeevananda Silva who was in charge.
Wille in the well-known book “Landlord and Tenant in South Africa”(1948 Edn.) at pages 253 and 254 states as follows:-
“A lease may be terminated at any time by the mutual agreementor consent of the parties. Being a novation, an agreement for prematurecancellation of a lease requires clear proof. There must be satisfactoryevidence of an unconditional offer by one of the parties to terminate thelease, and of a definite acceptance of the offer by the other party….
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The consent of the parties to a premature cancellation may beinferred from their conduct in treating the lease as being at an end, forinstance, the acceptance of the keys of the premises by the landlord’sagent."
The same principle in converse form was laid down by Sansoni J. inthe case of Abeywardane vs. Rev. Siri Nivasa (5) by which it was heldthat a landlord is not entitled to take possession of rented premisesunless the tenant has vacated them or surrendered ppssession of them.
in this case clearly disagreement had arisen between the two accused-respondents (wife and husband) and they had decided to hand over thepremises to the landlord's agent Jeevananda Silva. ThereuponJeevananda Silva took charge of the house and he became the occupier.
The learned Magistrate has misdirected himself-
by refering to the two accused as tenants when they re-enteredthe premises ;
by holding that Jeevananda Silva was not in "occupation”.
The tenancy was over when the two accused removed all theirbelongings, vacated the premises and handed over the keys by way ofsymbolic delivery of possession. They re-entered the premises astrespassers, without any lawful right.
Thereupon Jeevananda Silva as agent took charge and he came into“occupation” though he was not physically residing therein.
In this connection the case of Ukku Singho v. Andiris Silva (6) isalmost directly in point. In that case it was held that where the complainantkept the key of a certain room and used to visit the place to see that it wastidy, he was held to be in occupation of those premises. Then again in thecase of The Attorney-General v. Deonis (7), it was held by Middleton, J.that the word “occupation” does not by any means imply “residence". Thedecisions in Speldewinde v. Ward (8), Silva v. Silva (9), Chandrasekerav. Jayanathan, S.l. Police (10). and Nandoris v. Inspector of Police,Warakapola (11), also support this view.
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Jeevananda Silva in his evidence said that he was actually annoyedwhen he saw the 1 st accused inside the premises. Undoubtedly this typeof conduct is likely to cause a breach of the peace. Therefore theingredients of the charge have been proved beyond reasonable doubt.
For these reasons I set aside the order made by the learned Magistratedated 27.6.1978 acquitting the 1st accused-respondent.
On the evidence it is clear that the 1st accused had, during the periodbetween 15.9.1975 and 21.9.1975, entered into these premises in theoccupation of Jeevananda Silva with intent to annoy him and I thereforeconvict the 1st accused of the charge under section 434 of the PenalCode.
There is no evidence that the 2nd accused was seen on thesepremises between 15.9.1975. and 21.9.1975. The evidence establishedthat only the 1st accused was inside the premises and not the 2ndaccused. It may well be that the 2nd accused (husband) had also enteredinto these premises at the same time along with the 1st accused (wife).However the prosecution witnesses have not given evidence that the 2ndaccused was also there residing in the same premises at any time duringthis period.
I therefore convict the 1st accused of the charge under section 434.The order of acquittal in respect of the 2nd accused will stand.
The next question that arises is the question of sentence to be passedon the 1st accused. As this is a high handed act by the 1st accused, Isentence the 1 st accused to pay a line of Rs. 1,000/-, in default 3 months'rigorous imprisonment.
Order of acquittal of 1st accused set aside and conviction entered.