(CRIMINAL REVISION)

SUDAN GOVERNMENT v. HASHIM MUKHTAR EL SHUKAIRI

AC-CR-REV-2 1966

 Principles

·  Criminal Law—Trespass—Penal Code. s. 386—interference with goods or luggage does not constitute the offence of trespass as defined under Penal Code, s. 380

Accused, landlord, refused to deliver to the complainants, tenants of one room of his house, their luggage because they failed to pay rent due. He was convicted of trespass on the luggage under Penal Code. s. 386.
Held: According to the definition of criminal trespass given by Penal Code, S. 380, interference with goods or luggage does not constitute the offence of criminal trespass under Penal Code. S. 386. Therefore finding is quashed.

Judgment

Salah E. Hassam I. (By authority of the Chief Justice), September 13, 1966: —Trespass is an usurpation, however slight, of dominion over pro perty, it is criminal when it is committed by entry with the object of committing some other offence or causing annoyance to the person in possession.

The property in respect of which the offence is committed must be corporeal property. It is generally assumed in India that it can be com mitted in respect of immovable property, but the better opinion would seem to be that it can be” committed in respect of any property of such a nature that it is possible to enter upon it, and having entered upon it remain upon it. By Sudan Penal Code, ss. 400 and 401, special penalties for breaking a closed receptacle indicate that property was not intended to extend to goods and chattels generally.

I have summarised this part of the law because it seems to me from the reasons for finding written by the trial magistrate that he is not aware of the law in this respect. The first question in the reasons for finding was (1) did accused commit criminal trespa&c in respect of complainant’s luggage? —The rest of the reasons g arguing the of aecused w the luggage as cons eriminal Code, s. 386. As I pointed out above any meddling and interference fth goods and chattels does not come within the province of criminal trespa as indicated in Penal Code, ss. 380 and 386. The facts of this case are very simple:

Accused is the landlord and complainants are tenants of one room inside his Hosh. By the end of the month he asked theni to leave because they failed to pay the rent due which was £S.4.000m/ms. They agreed and actually left the premises leaving some of their belongings behind with a view to collect it later. Accused entered actual possession of the room, he having already constructive possession being the landlord. When complainants came to collect the rest of their belongings he demanded the rent, which they again failed to pay. He exercised his iight of lien upon their property insisting upon payment of the rent lawfully due.

Whether he is entitled by law to exercise a right of lien or not is not very important in this case, a he was acting under a bona fide claim of right. Entry under such a claim, though ill-founded, is not crimin on the ground that annoyance was foreseen. I therefore quash the proceedings, as accused did not commit any offence. Fine if paid should be refunded to him.