Citations: Abdul Kader and Anr. Vs Abdul Kasim, AIR 1932 Cal 459

Date of Judgment: 24 February 1932

Equivalent Citations: AIR 1932 Cal 459, 137 Ind Cas 872

Case No: N/A

Case Type: Criminal Appeal

Appellant/Petitioner: Abdul Kader

Respondent: Abdul Kasim and Anr

Bench: Hon’ble Justice Patterson

Court:  Calcutta High Court

Statutes Referred:

  • Indian Penal Code, 1860; Section 297

Cases referred:

  • Jhulan Sain Vs Emperor [1913] 40 Cal 548


  • The petitioners were the owners of the land in question which is a graveyard.
  • The complainant’s father and aunt were buried in this graveyard on which certain structures were built over their graves.
  • Since the petitioners since in Khas possession of the land as held by the Civil Court they damaged the structures built.

Issues Involved:

  • Whether the petitioners are liable under Section 297 of the Indian Penal Code for trespass?

Contention of Appellant/Petitioner:

The counsel for Appellant/Petitioner contented that:

  • The petitioners were in Khas possession of the land in question by the Civil Court and that the grave of the complainant’s father was not a, real grave but a mock structure created during the pendency of the civil suit and as such they are entitled to break and demolish the mock grave.
  • In the case of Jhulan Sain Vs Emperor [1913] 40 Cal 548 the word “trespass” as used in Section 297, Indian Penal Code, has not the same meaning as that attached to the expression “criminal trespass” as defined in Section 441 of that Code.
  • Section 297 the term “trespass” means: any violent or injurious act committed in such place and with such knowledge or intention as is defined in that section.

Contention of Respondent:

The counsel for Respondent contented that:

  • The petitioners damaged the structures with the knowledge that the complainant’s feelings were likely to be wounded and that in damaging the said structures with such knowledge the petitioners committed an offence under Section 297, Indian Penal Code.


The High Court held that the judgment given by the Trial Court was rightly given. The petitioners were convicted and compensation was awarded to the complainant.

Thus, dismissing the order.

Ratio Decidendi:

  • Although the petitioners have been found by the Civil Court to be the owners of the land in question, and although they have been given Khas possession thereof by the civil Court, that does not entitle them to disturb any graves that may be found existing in that land or to damage any structure that may have been raised over such graves, if by such act or acts the feelings of any person interested in the graves are likely to be wounded.


To conclude, the fact that the petitioners are the sole owners of the land in question does not justify their action in damaging the structures that had been built over the graves of the complainant’s father and aunt, therefore it is a “trespass” within the meaning of Section 297 of the Indian Penal Code, even though the petitioners have been placed in Khas possession of the land by the civil Court.

Drafted By: Kimi Kantak, Govind Ramnath Kare College of Law

Edited by: Aashima Kakkar, Associate Editor, Law Insider

Published On: November 1, 2021 at 11:57 IST

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