Patna High Court
Jagdish Rewani vs Dr. Rajendra Nath Sarkar on 7 May, 1964
Equivalent citations: AIR1964PAT553, 1964CRILJ710, AIR 1964 PATNA 553
ORDER K. Sahai, J.
1. The petitioner, Jagdish Rewani, is alleged to have broken, 911 the night of the 10th. 11th November, 1960, four locks put upon the doers of two rooms in the possession of the opposite party, Rajendra Math Sarkar, and to have taken possession of them On these facts, the petitioner was convicted by a first-class Magistrate of Jamtara for an offence under Section 456 of the Penal Code, and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs 100/-or, in default, to undergo rigorous imprisonment for a further period of one month An appeal against the conviction and sentence was dismissed. The petitioner then filed the present criminal revision in this Court, and, by my order dated the 13th February, 1964, I dismissed the application with some modification in the sentence The opposite party has now filed the present application under Section 522 of the Code of Criminal Procedure for restoration of his possession of the rooms
2. Section 522 (1) reads:
"Whenever 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 criminal intimidation, any person has been dispossessed of any immoveable property, the Court may, if it thinks fit, when convicting such person or at any time within one month from the date of the conviction order the person dispossessed to be restored to the possession of the same,"
It is manifest that, on the words of the section, it comes into operation only if an accused is convicted of an offence attended by criminal force or show of force or by criminal intimidation. 'Criminal force' has been defined in Section 350 of the Penal Code, and it is obvious that such force must necessarily be directed towards a person and not towards an inanimate object. 'Criminal intimidation has been defined in Section 503 and it is quite clear that Ibis offence also must be committed against a person. Mrs. Seth, who has appeared on behalf of the opposite party to support of the present application, admits that this is not a case in which the accused can be held to have used criminal force or criminal intimidation. She has however, argued that this is a case in which the offence committed by the accused-petitioner was attended by show of force. It is necessary to consider whether this argument is correct,
3. The prosecution ease was that the accused broke open the locks, put upon the doors of the rooms at night in the absence of the complainant. Rajendra Nath Sarkar. It is also the prosecution case that Sarkar went to the place next morning, found Jagdish Rewani and his associates occupying the rooms and asked Jagdish Rewani who took a defiant attitude and referred' him to Court, Mrs. Seth's argument is that, though there may not have been any show of force at the time of breaking of the locks, there was a show of farce at the time when Sarkar went to the place in the morning of the 11th November, 1960 She has relied in this connection upon two decisions The first decision is that in the case of Mahabir v. rEX, AIR 1949 All 228. In that case, the accused persons started forcibly ploughing the disputed plots, and, when the complainant went, protested and tried to stop the accused from ploughing the field, they did not listen to him On these facts, they were convicted under Section 447 but were acquitted of the charge under S. 352 of the Penal Cede. Tbe question which arose for consideration was whether an order under Section 522 of the Code of Criminal Procedure was justified in the facts and circumstances of that case Wanchoo, J.. who delivered the judgment of the Bench, observed:-
"In our opinion criminal force or show of force or criminal intimidation as mentioned in this section need not necessarily be an ingredient of the offence at all. The words 'attended by' should include an act done simultaneously with or immediately after another act we speak of evil consequences attending a course of conduct There the evil consequences follow the course of conduct. So, if the commission of an offence is immediately of shortly after followed by force or show of force or criminal intimidation the case will be covered by this section."
He has further observed:-
"We think if the accused or his accomplices having entered upon the land do not quit the land when the true owner protests against such unauthorised entry and are ready to fight, the offence can be said to have been attended by 'show of force'. Show of force may consist in the physical presence of the accused, his servants of companions in such a way that the true owner is put to the fear that if he tried to regain possession by force he will he met by force."
The other decision which Mrs. Seth has referred to is that of a single Judge in Raj Baushi Thakur v Chandey Jha. AIR 1951 Pat 307. His Lordship has stated:
". .... .... where a criminal trespasser enters upon property and prevents the rightful possessor from coming into possession of it, dispossession is said to have taken place, and if the trespasser was guilty of some force or intimidation when he prevented the other party from entering upon the property, a Magistrate would be justified in taking action under Section 522, Criminal Procedure Code."
One of the cases relied upon by him was that of AIR 1949 All 228 at page 310
4. It seems to me that the correct legal position is that, if the accused takes possession of an immovable properly in the absence of the person in possession and if the accused uses criminal force, criminal intimidation of show of force at the time when the person in possession comes to protest for the first time, the provisions of Section 522 of the Code of Criminal Procedure will become attracted.
5. The difficulty in this case, however, is that all that is said in the evidence is that accused Jagdish Rewani took a defiant attitude and referred the complainant to Court. He cannot be said to have shown force simply by asking the complainant to go to Court and seek his remedy there. What exactly he means by the words "took a defiant attitude is not at all clear It may be that Jagdish merely said to the complainant to go to Court and this was taken by him to be a defiant attitude In any case, there is no evidence of the presence of weapons with Jagdish or his associates, not is there any evidence that the complainant was put to fear of physical hurt. That being so, I am unable to hold that there was any show of force even when the complainant first went to the reems in question and spoke to accused Jagdish in this view of the matter it is not possible for me to pass an order for restoration of possession of the reams to complainant Rajendra Nath Sarkar
6. The application is rejected