Patna High Court
Sheo Nandan Sahu vs State Of Bihar Etc. on 31 March, 1988
Equivalent citations: 1988(36)BLJR469
JUDGMENT R.N. Prasad, J.
1. This application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has been filed for quashing the order dated the 8th of June, 1985 whereby the IInd Additional Judicial Commissioner of Ranchi has directed the petitioner to deliver possession over a portion of the house bearing Holding No. 1126, within Ward No. '1' of Ranchi Municipality, and the subsequent orders dated 28-3-1983 and 20-7-1987 passed by the said Judge for implementation of the said order.
2. The facts leading to this proceeding are as follows :
Oopposite party No. 2 Ajit Kumar Ghosh had obtained a decree for delivery of possession against Chhotan Lal Sabu and others in respect of a portion of the aforesaid holding and had put the same in execution vide Execution Case No. 56 of 1975. Petitioner Sheo Nandan Sahu, who was not a party to the said decree, filed an objection under Section 47 of the Code of Civil Procedure but the same was dismissed. Subsequently he filed Title Suit No. 14 of 1979 for declaring the said decree as not binding on him but he lost this suit also upto the stage of this Court, Ultimately delivery of possession was given to the said opposite party No. 2 through the processes of the Court in presence of a Magistrate on 19-6-1980. On the same evening, however, this petitioner and one Dwarika Sahu made forceful entry into the said portion of the building after breaking open the lock in the absence of opposite party No. 2 and started living therein. Opposite party No. 2 lodged information with the police and eventually petitioner Sheo Nandan Sahu and Dwarika Sahu were prosecuted for an offence punishable under Section 457 of the Indian Penal Code Ultimately, the Trial Court convicted both of them under Section 456 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for one year each. Both these convicted persons preferred separate criminal appeals before the learned Judicial Commissioner, Ranchi, which were numbered as Criminal Appeal No. 71 of 1982 and 79 of 1982. Both these appeals were heard together by the IInd Additional Judicial Commissioner of Ranchi who dismissed both the appeals by his judgment dated 26th of March, 1985. Both these convicted persons have preferred separate criminal revisions in this court which have been numbered as Cr. Revision Nos. 120 and 125 of 1985. These two revision applications have been admitted by this Court only on the question of sentence which would indicate that their conviction has been upheld by this Court and revision applications stand dismissed so far they relate to their conviction. The only question which now remains to be decided in these revision applications is the question of sentence.
3. It is said that Dwarika Sahu vacated the house while this appeal was still pending before the learned Additional Judicial Commissioner and so that was the end of the matter so far he is concerned.
4. The present petitioner Sheo Nandan Sahu, however, did not vacate the premises and as such opposite party No. 2 filed a petition before the learned Appellate Court for an order under Section 456 of the Code and by order dated 8th June, 1985 the learned Additional Judicial Commissioner directed the present petitioner to deliver possession over the said premises to opposite party No. 2 Ajit Kumar Ghosh. This order has been reiterated by him in the two subsequent orders dated 28-3-1987 and 20-7-1987. It appears that the petitioner had filed an appeal in this court against the first order dated 8-6-1985 but that appeal was dismissed as not maintainable since no appeal could lay against, the said order. Thereafter the petitioner tried his luck before the learned Additional Judicial Commissioner but when he did not succeed, he filed the present application for quashing these orders.
5. The submission of the learned Counsel for the petitioner is that Section 456 of the Code could not be attracted on the facts of the present case inasmuch as there is nothing to show that the offence which the petitioner committed was attended by criminal force or show of force or by criminal intimidation. It was contended that unless any of these three elements is there, the Court could have no jurisdiction to pass an order under Section 456 of the Code.
6. Section 456 is as follows :
456. Power to restore possession of immovable property. -(1) When a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and it appears to the Court that, by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the Court may, if it thinks fit, order that possession of the same be restored to that person after evicting by force if necessary, any other person who may be in possession of the property :
Provided that no such order shall be made by the Court more than one month after the date of the conviction.
(2) Where the Court trying the offence has not made an order under Sub-section (1), the Court of appeal, confirmation or revision may if it thinks fit, make such order while disposing of the appeal, reference or revision, as the case may be.
(3) Where an order has been made under Sub-section (1), the provisions of Section 454 shall apply in relation thereto as they apply in relation to an order under Section 453.
(4) No order made under this section shall prejudice any right or interest to or in such immovable property which any person may be able to establish in a civil suit.
A bare perusal of this Section would indicate that this section can be attracted only when the person concerned is convicted for an offence attended by criminal force or show of force or by criminal intimidation. So, no court can pass an order under this section unless the conviction is attended by either criminal force or show of force or criminal intimidation. Conviction is, of course, the pre-requisite but it alone is not enough for exercising jurisdiction under this section. The jurisdiction under this section can be exercised only if the conviction is for an offence which was committed either by criminal force or show of force or criminal intimidation. At least one of these three conditions must be fulfilled for exercising power under this section besides conviction. The Court cannot pass an order under Section 456 if the conviction is simple and was not attended by any of these three elements.
7. Evidently, there is no rinding in this judgment to the effect that the offence which has been committed by the petitioner was attended by criminal force or show of force or by criminal intimidation. I have gone through the evidence also but do not find anything therein to show that the petitioner had used any force or show of force or be committed by criminal intimidation against any person while committing house-trespass and house-breaking for which the petitioner has been convicted. The only witnesses who claimed to have seen the occurrence are P.Ws. 1, 2 and 3. The evidence of these three persons is simply that they saw the petitioner and Dwarika Sahu breaking open the lock of the house and committing trespass thereinto. Admittedly, nobody objected to their doing so and the opposite party No. 2 himself or anybody of his family or anybody on his behalf was not present in the house at that time and the house was practically vacant then although it was locked. The evidence of opposite party No. 2, who was examined as P. W. 5, is that he was not present at the scene at the relevant time and was informed about it by P, W. 2 on telephone. On the circumstances it cannot be said that any criminal force or show of force was used by the petitioner against any person in committing the offence of house-trespass and house-breaking. It may be said that he used force against the door but what "criminal force" really implies is use of force to a person and not to an inanimate object. Criminal force has been defined in Section 350 of the Indian Penal Code and is as follows :
330. Criminal force.- Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.
A bare perusal of this section shows that for coming within the ambit of this definition the force must be against a person and not against an inanimate object.
8. The expression "show of force" in Section 456 of the Code would also indicate the "show of force" refers to any person and not to an inanimate object. "Force" has not been defined in the Code but it has been defined in Section 349 of the Indian Penal Code which is as follows:
349. Force.-A person is said to use force to another if he cause motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feel-lings ; provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described :
Firstly.-By his own bodily power.
Secondly.--By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.
Thirdly.-By inducing any animal to move, to change its motion, or to cease to move.
Undisputedly, there is nothing in the evidence to indicate use of such force as defined in this section. It has also been conceded by the learned Counsel appearing for opposite party No. 3 that there is absolutely no allegation of criminal intimidation in the present case and, so, it is not necessary to consider this element.
9. Thus, it is apparent that although the petitioner has been convicted for house-breaking it cannot be said that the offence committed by him was attended by criminal force or show of force or by criminal intimidation and, that being so, Section 456 of the Indian Penal Code cannot be attracted in the present case and no order thereunder could have been passed in favour of the opposite party No. 2 and against the present petitioner by the learned Additional Judicial Commissioner.
10. This view finds support from the series of the decisions of this Court as also of Calcutta High Court. The earliest decision on the point is in the case of Mohesh Sahu v. Emperor A.I.R. 1919 Pat. 26. It may be pointed out here that the corresponding section of present Section 456 was 522 under the old Code of 1898. The following observation of Jwala Prasad, J. in this decision makes the position clear :
The order under Section 522, Cr. P. C., dated 22nd January, 1918, passed by the Sub-divisional Magistrate of Sasaram directing that the house in question be restored to the possession of the Mussamat, was also bad inasmuch as mere conviction under Section 448, I.P.C., would not justify an order under Section 522, Cr. P. C., unless it was found that the offence was attended by criminal force as is expressly mentioned in the latter section....
This view was reiterated by the same Hon'ble Judge in the case of Balram Sahu v. Chamru Sahu A.I.R. 1921 Pat. 391. In this decision the Hon'ble Judge has gone further and has laid down that "It is, therefore, clear that a conviction for an offence of criminal trespass will not necessarily entitle the complainant to seek his remedy under Section 522 of the Code of Criminal Procedure, unless there was a clear finding of the Court convicting the accused that the offence with which the dispossession happened was attended with use of criminal force. This is now the accepted view of the Courts in Indian". (Underlining has been done by me).
11. The aforesaid view was of Jwala Prasad, J, was reiterated by K. Sahai, J. in the case of Jagdish Rewani v. Dr. Rajendra Nath Sarkar . In this case there was evidence to indicate that the complainant had protested whereupon the accused was said to have taken defiant attitude and to have asked the complainant to go to Court and seek his remedy there. Even then it was held that such a conduct of the accused did not amount to use of criminal force or show of force,
12. The same view has been expressed by a Division Bench of the Calcutta High Court in Nani Gopal v. Bhima Charan , in this case their Lordships observed that if entry by the accused was made in the absence of any person Section 522 was not attracted as entry was not attended by criminal force or show of force or by criminal intimidation. The decisions is also to the same effect
13. The learned Counsel for the opposite party No. 2 has, however, referred to a Single Bench decision of the Madras High Court in the case of N. Abdul Hadi v. Maiu Bi and Ors. 1973 C.L.J. 725, in which it has been said that if the accused effected trespass upon the house belonging to the complainant by breaking open the door of the complainant in his absence he clearly committed a crime using violence and, as such, Section 522 of the Code would be attracted in this case. This decision, undoubtedly, is in favour of opposite party No. 2 but it has to be critically examined as it goes against the series of decisions of Patna High Court and other High Courts referred to above,
14. A close reading of the Madrais decision would show that the bench came to the aforesaid decision as, according to him, it was wrong to interpret the language of 522 in the light of the definitions given in the Indian Penal Code. The learned Judge was of the view that since the expressions "criminal force" and "show of force" have not been defined in the Criminal Procedure Code, one should go by their dictionary meaning and not by their definition given in the Indian Penal Code. It has been observed that there is nothing in the Code to show that when the legislature used these expressions in Section 522 it intended to given them the conotations and meaning which the authors of the Indian Penal Code had given for the purposes of that Code, After interpreting these expressions of the basis of the meaning of 'force' as given in Chambers Twentieth Century Dictionary and Shorter Oxford English Dictionary on historical principles, it was held that the expression 'force' means only strength and power exerted upon an object which way include an inanimate object. It is, however, not possible to agree with this line of reasoning as Section 2 (Y) of the Code was not brought to the notice of the Bench otherwise such a view could not have been expressed. Section 2(Y) is as follows:
Words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1960) have the meaning respectively assigned to them in that Code.
So, it is evident that the words and expressions which have been defined in the Indian Penal Code shall have the same meaning under the Code of Criminal Procedure if those words and expressions have not been defined therein. Since the Madras decision proceeds on the erroneous assumption that the definitions and the expressions given in the Indian Penal Code cannot be available for interpreting the words and expression used in the Code of Criminal Procedure, it cannot be accepted as laying down the correct law and with deepest respect regret, I would express my dissent with this view. Indeed, the decisions of this Court and other High Courts referred to above, which are indirect conflict with this decision, have not been considered in this decision. Hence I would like to follow the established view taken by this Court and other High Courts in the decisions referred to above.
15. For the reasons given above, I have no hesitation in holding that no order under Section 456 of the Code could be passed in the present case when there was no allegation against the petitioner of using criminal force or of showing of force or of committing an act of criminal intimidation against anybody in the criminal trial in which he has been convicted. The impugned orders, which are manifestly not in conformity with the requirements of Section 456, have therefore, got to be quashed.
16. The application is, therefore, allowed and the impugned orders are quashed.