Madras High Court
Abdul Hameed vs Kanniyammal on 28 July, 2011
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 28.07.2011 Coram THE HONOURABLE MS. JUSTICE K.B.K.VASUKI Crl.R.C.No.1197 of 2005 Abdul Hameed .. Petitioner Vs. 1.Kanniyammal 2.A.Manickam 3.T.Krishnan 4.A.mumuswamy 5.A.Nagappan 6.A.Kandaswamy 7.State by Inspector of Police, R-6, Kumaran Nagar Police Station. .. Respondents Prayer :- Criminal Revision Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 03.06.2005 made in Crl.MP.No.2981 of 2005 in CC.No.2339 of 2001 on the file of the XXIII Metropolitan Magistrate, Saidapet, Chennai. For Petitioner : M/s.V.Karthik, SC for Mr.K.B.Iqbal Ahamed For Respondents : M/s.S.Senthilnathan-R1 to R6 Mr.A.D.Jagadish Chandira, APP ORDER
The Criminal Revision is filed by the defacto complainant challenging the order of dismissal of the petition in CC.No.2339 of 2001 filed by him under Section 456(c) Cr.P.C. directing the 7th respondent/State to remove the respondents 1 to 6/accused from the property in dispute.
2. The few facts, which are relevant herein are as follows :
The petitioner herein filed Ejectment suit No.24 of 1983 against four respondents by name Hemavathy, Dhanbagiyam, Angappan and Kanniammal. Kanniammal is the first respondent herein. The Ejectment suit was filed on 09.02.1983 on the file of IVth Small Causes Court, Chennai and the same was after due contest decreed on 03.07.1990.
3.Angappan and Kanniammal and Hemavathy challenged the correctness of the decree dated 03.07.1990 passed in ejectment suit by way of separate revision. CRP.No.622 of 1992 was filed by Hemavathi and CRP.No.1027 of 1992 was filed by Angappan, Kanniyammal and Dhanabaggiyam, who died during the pendency and his legal heir Chellappan was impleaded. Both CRPs were dismissed by a common order dated 24.4.1992.
4.Thereafter EP.No.70 of 1992 was filed by the decree holder against the judgment debtors for delivery of possession in which Kanniammal filed MP.No.52/92 under section 47 CPC challenging the enforceability and executeability of ejectment decree and the same was dismissed by order dated 13.01.1995. Similar petition was filed in MP.No.248 of 1992 by Angappan and the same was also dismissed. Thereafter, CRP.Nos.1159 and 1160 of 1995 were filed by Angappan and Kanniammal and during the pendency of the same, O.S.Nos.7244 to 7246 of 1992 are filed by one Elangovan, Madurai and Krishnan and Chellappan who is one of the Legal heirs of Dhanabaggiyam against the decree holder in ejectment suit for restraining him from interfering with their possession and enjoyment of the same property and all the suits were commonly tried and after due contest, the suits were disposed of by common judgment dated 19.11.1996.
5.Aggrieved against the same, AS.Nos.74 and 75 of 1997 have been filed by Elangovan and Madurai and Krishnan, who are the plaintiffs in OS.Nos.7244 and 7245 of 1992. The plaintiff Chellappan who was party to earlier proceedings in the revision arising out of ejectment suit did not prefer any appeal against the decree made in O.S.No.7246 of 1992. Both the appeals were allowed by common judgment dated 04.09.1997 and the suits are remanded back for fresh disposal by giving due opportunity to both the parties to adduce additional evidence. The trial court was also directed to appoint Taluk Surveyor as Commissioner to find out as to whether the plaintiffs/Appellants are in possession of S.No.243/1 and 2 part or in New S.No.210/183. While so, injunction IA.No.19699 of 1999 was filed in OS.Nos. 7244 and 7245 of 1992 and the same was dismissed on 17.12.2000 and that order was challenged in CMA.No.32 of 2001 and the same was subsequently dismissed on merits. In the mean while, the judgment debtors in ejectment suit 24 of 1983 were evicted from the suit property on 08.12.2000 with police aid in the eviction proceedings.
6.Thereafter, the respondents herein trespassed into the property in dispute on 12.12.2000 and the same led to the police complaint by the decree holder to the 7th respondent Inspector of Police, Kumaran Nagar Police station, Chennai on 13.12.2000 alleging that the accused therein who are the respondents herein trespassed into the property which was under lock and the same was registered as FIR for the offences under Section 448 IPC and culminated in CC.No.2931 of 2001 on the file of XXIII Metropolitan Magistrate, Saidapet, Chennai. The criminal case was after due contest ended in an order of acquittal of the accused on 26.06.2002 and the order of acquittal was challenged by the defacto complainant in Crl.R.C.No.1802 of 2002 and our High Court by order dated 01.12.2003 set aside the order of acquittal and the same was remanded back for fresh trial. While doing so, the High Court was in para 4 of its order pleased to refer to the suggestion put to PW1 on behalf of the accused as if they are in possession of the premises. The trial court after remand, held fresh trial and by judgment dated 22.06.2004 found all the accused guilty under section 448 IPC and convicted and sentenced them to undergo two months simple imprisonment. Immediately thereafter, the defacto complainant/decree holder filed petition under section 456 Cr.P.C. seeking order of restoration of possession of the premises. During the pendency of the petition, the revision Crl.R.C.No.151 of 2004 was filed by the accused against the order of conviction and was seriously contested and was after due contest dismissed on 18.02.2005 and the order of conviction was confirmed. There is no further proceedings challenging the correctness of order passed in the revision confirming the order of conviction.
7.Thereafter, the petition MP.No.2981 of 2004 filed by the defacto complainant under section 456 of Cr.P.C. to remove the occupants, was contested and was after hearing both sides, dismissed on 03.06.2005 on the ground that the petitioner/defacto complainant failed to seek the relief of restoration of possession from the appellate forum and there is Civil suit pending in the City Ciivl Court, Chennai regarding the title dispute and any order passed in the petition for restoration is likely to prejudice the civil right of the accused in the civil suit. Aggrieved against the same, the present revision is filed by the defacto complainant/petitioner before this court.
8. Heard the submissions made on both sides.
9.It is contended by the learned counsel for the petitioner that Section 456 Cr.P.C is intended not only to punish the offender, but also to redress the grievance of the complainant to undo any act committed by the offender by using criminal force and the trial court, while convicting any person for an offence attended by criminal force or show of force or by criminal intimidation, is required to pass appropriate orders to restore the occupation of the person who since then dispossessed of any immovable property and for the said purpose, the Court may also pass order not only against the convicted person but also against any person who will be in the occupation of the property. When the trial court fails to do so, the court of appeal confirmation or revision is also empowered to make one such order while disposing of the appeal reference or revision, as the case may be.
10.In this case, both the trial court and the revisional court while passing and confirming the order of conviction, omitted to do so. Though the application under Section 456 is filed within one month as specified in the proviso to sub section 1, the petition is rejected by the trial court mainly on two grounds: (i)civil appeal is pending against the suit for ejectment and (ii) the petitioner failed to seek such relief before the revisional court.
11.The rejection of the petition filed by the petitioner on the first ground as if the order of restoration is likely to prejudice the cause of the appellant in the civil suit, is without duly appreciating the legal consequences of one such order of restoration as provided in the relevant provision of law under Section 456(4), as per which, any order made under Section 456 shall not prejudice the right or interest to or in such immovable property which any person establish in the civil suit. The legislature has appropriately included sub section 4 to safeguard the right and interest of all the parties concerned to seek appropriate remedy before the appropriate civil forum. That being the statutory position, thereby rendering any order of restoration subject to any right to be established before civil forum, the rejection of the application on the first ground as referred to above, is contrary to the statutory provision and cannot be allowed to stand.
12.Regarding the next ground, the reading of section 456 (1) and (2) would amply demonstrate that the order of restoration of possession, which is consequential or incidental order depending upon the order of conviction, is to be ordered in appropriate cases by the court concerned without the relief being asked for, either by the trial court or by any Court of appeal, confirmation or revision. If a person has been wrongly dispossessed by use of force and once that condition is fulfilled, the possession must be restored under Section 456 Cr.P.C., from whomsoever found in possession and the same does not only bind the accused, but also binds any other person including the legal representative of the accused, who may be in possession of such property. Though there is no specific provision of law, which enjoins the duty upon the trial court to pass an order of restoration simultaneously with the conviction of the offender, there is no prohibition, to pass an order of restoration either simultaneously or independently with the conviction of the offender, as the same is only consequential in nature. The object of enacting Section 456 is to serve the ends of justice that no one should thrive on his criminal and wrongful acts. Further, when there is forcible dispossession of complainant immediately after possession was delivered to him by civil court, the restoration of possession is but just and proper to serve the ends of justice. As the jurisdiction vested under Section 456 is discretionary in nature, the same shall be always judicially and reasonably exercised to redress the grievance of the complainant and the trial court by driving the petitioner to agitate his right in the civil appeal and thereafter to get an order of restoration of his possession, amounts to failure or improper exercise of jurisdiction vested upon the trial court. Both the trial court and the revision court committed gross error in not only passing an order of restoration simultaneously with order of conviction, but also the trial court has again reiterated its erroneous stand by rejecting the petition on flimsy grounds.
13.The facts above referred to would reveal that the petitioner herein having effected ejectment suit as early in 1983 and having obtained ejectment decree on 03.07.1990 is yet to enjoy the fruits of the decree. All the legal steps taken by the petitioner herein/decree holder both through civil and criminal forum ended favourable to him and the persons/judgment debtors in the unlawful occupation of the property were evicted through process of law, that too with police aid from the disputed property. Thereafter, some of the judgment debtors who faced the execution proceedings and were evicted through process of law, have along with the other accused, again forcibly trespassed into the property in question by breaking open the lock put up by the petitioner and faced criminal prosecution for the offence under Section 448 IPC and suffered an order of conviction and the same was also confirmed by the appellate court and remained unchallenged and is thus allowed to become final.
14.In this context, it is but relevant to refer the observation laid down by the Supreme Court and our High court in the following judgments cited on the side of the petitioner viz.,(i) 1982 LW (Crl.) 157 (Manickammal, In re), (ii) 1964 (5) SCR 916 at 927 (Mathuri and others v. State of Punjab), (iii) 1975 LW (Crl.) 77 (Palani Pannadi v. Nanjammal), (iv) 1948 MWN (Crl.) 156 (Berankutti Haji v. C.I.Raman and others) and (v) 1973 LW (Crl) 2 (N.Abdul Nadi v. Maju Bi).
15.In all the cases referred to above, the Supreme Court and our High Court are always in favour of exercise of jurisdiction vested upon the court under Section 456 Cr.P.C simultaneous with order of conviction. The Apex Court and our High court in 1948 MWN Crl.156 observed that "the object of Section 456 Cr.P.C (Old Section 522 Cr.P.C) is to prevent any person gaining wrongful possession of a property by his own unlawful and forceable acts and it is envisaged to thwart "might is right" theory and to show that the arm of law is long enough to reach the man who flouts it and relies upon physical force to achieve his ends and there is no reason why it should be interpreted in a manner favourable to the criminal". In 1973 LW (Crl) 77 case, it is observed by our High court, following the observation of the earlier case in ILR 1943 Mad 900 (Narayana v. Muniappa) "it was not confined to the scope of 'use of force' as defined in Section 350 IPC to the person dispossessed only, but also against the person dispossessed in his absence". In 1973 LW (Crl) 77 case, it is held that "where the accused has broken open the lock and entered the house, though no criminal force was used against the person in the occupation of the house, still Section 522 (1) Cr.P.C., corresponding to the new section 456 Cr.P.C is applicable". In 1973 LW (Crl) 2 case, our High court has observed that "when the respondents/accused effected trespass in the house belonging to the complainant in his absence, they clearly committed a crime of which, they have been convicted; and they committed the same using violence, that is to say, by breaking open door and effecting entry there into". Our High court has after referring to the earlier judgments cited above, observed the definition of "criminal force" or "show of force" and in para 10 held as follows: According to chamber's Twentieth century dictionary, "force" means-"strength, powers, energy, efficacy, validity, influence...and" "criminal" means "relating to crime, ...of crime, violating laws" and hence held that "the application of criminal force means application of power or strength for a purpose which is criminal in character, regardless of the fact whether it is used against a person or a thing" and was not inclined to interfere with the order directing restoration of possession of the house to PW1/complainant.
16.Applying the same ratio, this court is inclined to hold that the conduct of the respondents in effecting forceable entry i.e. entering into the property by breaking open the lock amounts to criminal trespass by using criminal force which is a pre-condition to invoke the power of the Court under section 456 Cr.P.C and the complainant is hence entitled to have his possession, which is obtained through process of law, to be restored. This Court is hence, having regard to the facts discussed above, inclined to order restoration of possession of the property in question bearing new no.46, old no.72B, West Jones Road, Saidapet, Chennai-15 to the petitioner/defacto complainant.
17.The question nextly arises before this court is as to what is the mode of execution of the order of restoration of possession. The learned counsel for the petitioner convincingly argued this aspect by relying upon the relevant provisions of law and also upon the unreported judgment of Bombay High Court dated 7.11.2009 made in Crl.R.A.No.75 of 2000. It is argued that as per Section 456 Cr.P.C, the Court is empowered to order restoration of possession to the aggrieved person, after evicting by force, if necessary, either the accused, his legal representatives or any other person who may be in possession of the property. In the judgment referred to above, the Bombay High Court is pleased to order restoration of the property to the complainants after evicting the occupant with the police aid through Inspector of the concerned police station within whose jurisdiction the property situated. Similar mode through the 7th respondent/Inspector of Police may be adopted for execution of the order of restoration of possession granted herein.
18. In the result, the Criminal revision is allowed by setting aside the order dated 03.06.2005 made in Crl.MP.No.2981 of 2005 in CC.No.2339 of 2001 on the file of the XXIII Metropolitan Magistrate, Saidapet, Chennai and Crl.M.P.No.2981 of 2005 is ordered by directing restoration of the property bearing Old No.72B, New No.46, West Jones Road, Saidapet, Chennai-15 to the petitioner herein after evicting the respondents or any other occupants therein through 7th respondent i.e. Inspector of Police, R6 Kumaran Nagar Police Station, within four weeks from the date of receipt of the copy of this order.
28.07.2011.
Internet : Yes Index : Yes tsh/rk To The XXIII Metropolitan Magistrate, Saidapet, Chennai.
K.B.K.VASUKI, J tsh/rk Crl.RC.No.1197 of 2005 28.07.2011.