Patna High Court
Rameshwar Singh vs Emperor on 15 January, 1925
Equivalent citations: 91IND. CAS.809, AIR 1925 PATNA 689
JUDGMENT Jwala Prasad, J.
1. The Magistrate by his order of the 6th November 1924, directed the Sub-Inspector, Tikari Police, to see that possession of the house, for entering which the petitioners were in another case convicted under Section 448, Penal Code, was restored to the complainant. The order is objected to on two grounds: first, that the mere conviction under Section 448 does not justify an order for restoration under Section 522 of the Cr.P.C. The complainant's case under Section 448 was that the accused persons in large numbers came armed and forced themselves into the house in spite of the remonstrance made by the complainant. The accused succeeded in taking possession of the house by means of criminal trespass threatening to use force to the complainant and his men. Therefore, their act would clearly come under Section 522 which says:
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 anytime within one month from the date of the conviction) order (the person dispossessed) to be restored to the possession of the same.
2. The case cited on behalf of the petitioners Mahesh Sahu v. Emperor 50 Ind. Cas. 30 : 20 Cr.L.J. 270 does not apply to the present case, and the amendment of Section 522, as it then stood, by adding the words "show of criminal force" puts an end to the present contention. Section 522, previous to the amendment of 1923, had only the words "by criminal force." By the amendment the words "or show of force or by criminal intimidation" have been added. In the present case the finding of the Magistrate is that the accused were members of an unlawful assembly under Section 143, Penal Code, and they have been convicted under that section though, no separate sentence has been passed; so the conviction in the present case is not merely under Section 448, but under Sections 448 and 143. The contention must, therefore, be overruled.
3. Next it is contended that the order of the Magistrate in the present case passed on the 6th of November, more than six weeks after the conviction of the accused by him on the 23rd September 1924, is illegal. In this connection also the recent amendment may be usefully looked into. Under the old section the Magistrate was required to pass an order of restoration immediately upon the conviction of an accused, and it was held that the order of restoration must have been passed simultaneously. In view of those decisions one month's time is now given to the Magistrate to pass an order of restoration after the conviction of the accused. The order in the present case is, no doubt, more than six weeks after the conviction of the accused. Strictly speaking, therefore, the order will be beyond the power of the Magistrate. But Clause (3) of the section is a new provision added in 1923 whereby an order under the section may be made by any Court of Appeal, confirmation, reference or revision.
4 Thus, the order may be passed by the Courts of Appeal, confirmation, reference or revision at any time howsoever long after the conviction by the Magistrate. The matter has come to this Court in revision. This Court is, therefore, competent to pass an order restoring the property to the complainant of which he has been dispossessed by forcible criminal trespass committed by the accused. In the circumstances of the case I exercise my power to pass an order under Section 522 of the Cr.P.C., which virtually is confirmation of the order passed by the Magistrate.