Patna High Court
Rajbanshi Thakur vs Chandey Jha And Ors. on 12 September, 1950
Equivalent citations: AIR1951PAT307, AIR 1951 PATNA 307
ORDER Sarjoo Prasad, J.
1. This is an application filed by the petitioner, who was the complainant in the case, for setting aside the order o£ the lower appellate Court in regard to the direction made by the trial Court for restoration of certain property under Section 522, Criminal P. C. The dispute in question related to plot No. 1529, on which, it is alleged, stands the residential house of the petitioner, be having no other place of abode except the house in question. The petitioner's case is that he had been coming in possession of the house and the land since long and bad been residing therein with his two minor nephews. On 31-5-1949, when the two minor nephews were away to their nanihal and the petitioner himself had gone to the local Registry Office at Balsand in order to register certain deed after locking the house, the opposite party, in the absence of the petitioner, along with one Loknath Thakur raided the house with deadly weapons, broke open the lock of the house and forcibly entered and occupied the house and looted the articles therein. One of the prosecution witnesses, prosecution witness 2, who saw the occurrence, informed the petitioner about it. On receiving the information, the petitioner rushed back to his house and found the accused persons there sitting armed with deadly weapons. He says that he attempted to go inside the house, when the accused persons threatened to assault him. The petitioner then lodged the first information report and, after investigation, the accused were put on trial under Sections 380, 448 and 464, Penal Code.
2. The defence of one of the opposite party and Loknath Thakur was that they had nothing to do with the land or the house and had taken no part in the occurrence whereas the defence of two other accused persona, Chandey Jha and Taranand Jha, was that plot No. 1529 claimed by the petitioner and plot NO. 1530 as also the house standing on them belonged to the opposite party and, by partition, plot No. 1529 and the house standing thereon were allotted to the share of opposite party Chandey Jha and that he was in possession of the house accordingly. The accused denied the occurrence as alleged by the prosecution and, on the other hand, stated that the petitioner had forcibly tried to enter the house and committed assault and looted all the properties. There was a counter ease also started on the allegations made by the accused opposite party, but it was found to be fake and a proceeding under Section 211, Penal Code against Chandey Jha is pending, arising out of that counter case.
3. In regard to the trial of the accused per. sons based upon the information lodged by the petitioner, the trial Court found that the prosecution case had been fully established, and convicted the accused opposite parties under Sections 380, 454 and 448, Penal Code. The trial Court, however, acquitted Loknath Thakur giving him the benefit of doubt. The trial Court further directed that, as the complainant petitioner had been deprived of his house by criminal force, ha should be put in possession under Section 522, Criminal P. C. Against that order of sentence and conviction passed by the trial Court, there was an appeal to the learned Additional Sessions Judge, who confirmed the order of sentence and conviction passed by the trial Court, The Court of appeal below held that:
"There was no reason to interfere with the finding of the trying Magistrate regarding the forcible entry by the appellants before him."
And he, therefore, came to the conclusion that the order of sentence and conviction passed against the accused must be upheld. The Court of appeal below, however, relying upon certain decisions of the Lahore High Court thought that, as the possession of the house had been taken in the absence of the petitioner, it was not, there, fore, a case for the application of Section 522, Criminal P. C. He accordingly set aside the order of the learned Magistrate passed under Section 522 of the Code under which the trial Court had directed restoration of possession of the property to the petitioner, It is against this portion of the order of the Court of appeal below that the present application is directed.
4. Counsel for the petitioner his rightly con-tended that the order of the Court below setting aside the order passed by the trying Magistrate is clearly misconceived and proceeds upon a misapprehension of the principles laid down in the decisions referred to in the judgment of the Court below. He contends that, if at the time of forcible entry the act of the accused is attended with criminal force or show of criminal force, the provisions of Section 522, Criminal P.C. would be attracted. The force may be not only in regard to the complainant, who may be absent at the time, but it may be against the complainant or his men or it may be directed against a neighbour who protests against the conduct of the accused. He also contends that, after the petitioner had been dispossessed of the property in his absence when the petitioner went back to recover possession of the property, if he was forcibly prevented from doing so, even then the provisions of Section 522, Criminal P.C. would be attracted to the case. For this purpose, he relies upon the statement of prosecution witness 2 about the occurrence, which is as follows:
"About two months ago on a Tuesday in the morning I saw all the four accused at the door of P. W. 1 breaking his look. I protested. They broke the look and entered the house. They had, on protest, threatened to assault me and I raised bulk, People came including P. Ws. I saw them removing boxes, etc. from the back door. . , .
I then went to Balsand and informed P. W. 1 whom I met at the Registration Office. The others also had intervened and the accused had abased and threatened them."
Learned counsel for the petitioner laid special emphasis on the statement that, when the witness protested, he was threatened with assault and so were the other persons who intervened. He says that this evidence quite clearly indicates that the offence of which the accused were convicted was attended by criminal force or show of criminal force and, by such force or show of criminal force, the petitioner had been dispossessed of the immovable property in question. He also relies upon the statement made by the petitioner himself at the time of trial, the relevant portion of which runs as follows :
"I ran to my house with him and found Chandey Jha, Loknath Thakur, Ram Lal Gope, all sitting at my darwaza. Chandey was armed with garasa, Ram Lal Gope had bhala and Loknath Thakur had lathi. I found look broken. I attempted to go in when the three persons aforesaid moved to assault me and I then moved away and approached the Mohalla people. The informant had told me that with P. Ws. he had rebuked the accused persona but they had threatened to assault."
Here, it is stated that, even when the petitioner wanted to regain possession of the property, he was threatened with assault and these people were sitting there at the darwaza armed with deadly weapons. It is true that the Court of appeal below has not approached the evidence from this point of view. That Court proceeded to decide the matter merely on the footing that, because the dispossession happened during the absence of the petitioner therefore, Section 522, Criminal P.C. had no application to this case. But the trial Court had considered all this evidence, though, of course, the specific passages had not been referred to in the judgment of the trial Court. It must be assumed that, when the trying Magistrate directed restoration of possession of the property under Section 522, Criminal P.C., he had in mind those features of the evidence. It must be remembered that both the Courts below have fully relied upon the evidence of these prosecution witnesses in coming to their findings in favour of the petitioner's possession and in asses-sing the guilt of the accused. At one stage, I was inclined to remand the case for a finding on this point, but I think it would be unnecessary to do so, because both the Courts below have accepted the evidence of these witnesses to be correct. In that view, it would now be sheer waste of time to send back the case for a consideration of the case afresh. These materials being there, it cannot but be held that the opposite party accused in this case were convicted of an offence attended by criminal force or show of criminal force, and, as a result of their conduct, the petitioner was deprived of the house and the land in question. I would very briefly refer to the decisions which have been relied upon in support of the case of the petitioner. The two cases relied upon by the Court of appeal below are Bihari Lal v. Emperor, A. I. R. (21) 1934 Lah. 454 : (36 Cr. L. J. 59) and Narain Singh v. Panna Lal, A. I. R. (27) 1940 Lah. 460 : (42 Cr. L. J. 160). These two cases are merely an authority for the proposition that criminal force contemplated by Section 522, Criminal P. C. must refer to force applied to a human body and not to any inanimate object. In Bihari Lal's case, (A. I. R. (21) 1934 Lah. 454 : 36 Cr. L. J. 59) what happened was that the accused had taken possession of a certain house by breaking open the lock in the absence of the person in possession. It was argued that the mere fact that the accused had broken open the lock was sufficient to amount to criminal force as required by Section 522 of the Code. This contention was naturally not accepted by the learned Judge who decided the case. The decision in Narain Singh's case, (A. I. R. (27) 1910 Lah. 460; 42 Cr. L. J. 160) also, is to the similar effect. These decisions nowhere said that, if at the time of taking forcible possession of the property the accused threatened to assault the complainant or, in his absence, any of his men or even his neighbour, that would not amount to criminal force or show of criminal force as required by Section 522, Criminal P.C. The decision in Rame-shwar Singh v. Emperor, 4 Pat. 438 : (A. I. R. (12) 1925 pat. 689 : 27 Cr. L. J. 137) quite clearly shows that the criminal force may be either against the complainant or against big party, and, if there is such criminal force or show of criminal force, then the trying Magistrate would be justified in taking action under Section 522 of the Code and direct possession to be restored to the person dispossessed. On the other proposition, 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 P. C.; there are also a number of authorities. Reference may be made to Mt. Chhabiav.Ram Charan, A.I.R. (30) 1943 ALL. 7: (44 Cr. L. J. 164) and Makdbir v. Rex, A. I. R. (36) 1949 ALL. 228: (50 Cr. L. J. 338). In this latter case, their Lordships observed as follows :
"Use of criminal force or show of force, or criminal intimidation must all be with reference to a person and not with reference to property.
Use of criminal force means actual use thereof; criminal intimidation connotes a threat of use of force to another person. Show of force, therefore, must be something different from these two. It may fall short of the use of force or of a threat to use force. Where 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 to by 'show of force Show of force may consist in the physical presence of the accused, his servants or 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 be met by force.
In such a case the dispossession of the true owner is not complete till he appears on the scene, pretests and has to go away. The case is coveted by Section 522 and an order for restoration of possession can be passed by the Court."
As I have shown from the evidence discussed above, all these elements were present in this ease. It would be useless to multiply authorities on the point, because the principles appear to be well settled and in consonance with the right interpretation of the provision of the law.
5. On behalf of the opposite party Mr. Sahi has very strongly submitted that it is not open to this Court in revision to pass an order of restoration. According to him, there is on application pending before this Court against the order of sentence and conviction passed against the accused and, therefore, it was not open to this Court to entertain an application merely against that part of the order of the Court below which set aside the decision of the trial Court directing the restoration of possession under Section 522, Criminal P.C. In other words, Mr. Sahi's contention amounts to this that this application is in the nature of an independent application made to this Court for taking action under Section 522, Criminal P.C. Mr. Sahi relies for this contention on several decisions but it would cot be necessary for me to refer to those eases in detail, because I do not regard this application as an independent application under Section 522, Criminal P. C., filed before this Court. Here, the order under Section 522 was passed by the same judgment by which the accused wore convicted by the trial Court. Against that order of conviction as also against the order passed under Section 522, Criminal P. C., the accused had preferred an appeal to the Court of appeal below, and the Court of appeal below, although affirming the order of sentence and conviction passed against the accused, interfered with this part of the judgment of the trial Court. In my opinion, there is absolutely no reason why the petitioner should not be allowed to move against this part of the order of the Court below. Section 522, Clause (3) of the Code is quite clear on the point that the High Court can exercise its power of revision in regard to such an order. The decision on which Mr. Sahi has strongly relied is the decision in Ashwini Kumar Das v. Shashanka-mohan Basu, 59 Cal. 1153 : (A. I. R. (19) 1932 Cal. 750 : 33 Cr. L. J. 868). Now, this decision, in my opinion, does not help Mr. Sahi and has no application at all. This was a case where the application under Section 522 was made beyond the period of limitation provided in that section. Their Lordships pointed out that such an application could not be entertained by the Magistrate, as the section specifically limits the powers of the Magistrate to do so to the time when he convicts an accused person or to any time within one month from the date of such conviction. The other case on which reliance has been placed by him is Abdul Mannan v. Raiyab Ali, A. I. R. (34) 1947 Cal. 390 : (48 Cr. I. J. 908), The observations made in this case it taken outside the context might lead to an impression that the observations help the contention of the learned counsel. But, if one remembers the facts of the case, then the observations cannot be invoked to the assistance of the contention raised by Mr. Sahi. In that case, neither the Court of first instance nor the Court of Session had passed any order under Section 522, Criminal P. C., when disposing of the appeal on when convicting the accused. Subsequently, the complainant in the case moved the learned Additional Sessions Judge who had heard the appeal and prayed for an order under Section 522 of the Code. The learned Additional Sessions Judge at first referred the matter to the trial Court, but, in the meantime, the presiding officer had been transferred and the officer who succeeded him returned the case to the Additional Sessions Judge observing that he was not the appellate Court and more than one month had elapsed. Thereafter, the Additional Sessions Judge passed the order directing the restoration of possession of the property. This was clearly a wrong order passed by the Additional Sessions Judge, and it is in respect of this order that Lodge J. observed :
"In my opinion, the occasion for the exercise of the power conferred upon the Court of appeal, confirmation, reference of revision by Section 522 (3) arises only when an appeal or reference or revision against the order of conviction is pending before that Court. . . . But it seems to me that the Court of appeal, confirmation, reference or revision is subject to the same limitation as the Court of first instance, and the Court of appeal, confirmation, reference or revision must pass the order of restoration of possession when upholding the conviction or at any time within one month from the date of the order in appeal, confirmation, reference or revision upholding the order of conviction. I am unable to accept the view that a Court of appeal, confirmation, reference or revision can pass an original order under Section 522 at any time whatsoever."
This case is clearly beside the point and, in my opinion, does not support the contention advanced on behalf of the opposite party. Mr. Sahi then contended that there was no finding of the Court of appeal below as to whether the possession in question was attended by force or show of criminal force and, therefore, this Court should, at any rate, remit the case to the Court of appeal below for such a finding. I have already said that it is not necessary to do so in view of the fact that the evidence of witnesses, relevant passages from which I have quoted above, was relied upon by the Courts below, and it was on their evidence that the order of sentence and conviction was upheld by the Court of appeal below. Learned counsel also contends that, at any rate, it was a matter of discretion and with this exercise of discretion I should not interfere. In my opinion, this argument is also without any substance. I have pointed out above that the decision of the Court of appeal below interfering with the order of the trial Court was based upon a misapprehension of the law as laid down in the two Lahore decisions. If the Court below had appreciated the law aright, I have no doubt it would not have interfered with the decision of the trial Court, and the circumstances of the case are such that if the matter is further delayed the petitioner would be deprived of the use of the residential house, which it is alleged by the petitioner is the only residential house for him and his two minor nephews, in the circumstances.
I see no reason why the order of the Court of appeal below setting aside the order of the trial Court under Section 522, Criminal P.C. should not be set aside.
6. I would accordingly make the rule absolute and restore the order of the trial Court passed under Section 522, Criminal P.C.