Calcutta High Court
Nani Gopal Deb And Anr. vs Bhima Charan Rakshit on 4 May, 1955
Equivalent citations: AIR1956CAL32, 1956CRILJ214, 59CWN688, AIR 1956 CALCUTTA 32, 59 CAL WN 688
JUDGMENT J.P. Mitter, J.
1.This rule is directed against an order under Section 522(1), Cr. P. C. passed by a learned Presidency Magistrate.
2. The petitioners were found guilty under Section 448, I. P. G. under the following circumstances:
3. In respect of certain rooms the landlord of the premises concerned obtained ex parte decrees in three ejectment suits in the Court of Small Causes, Calcutta. In execution of the said decrees the landlord obtained vacant possession of the said rooms which were then padlocked. In the absence of the landlord or any of his men the petitioners broke open the padlocks and took possession of the rooms.
They were found guilty of trespass and each was sentenced to detention till the rising of the Court and to pay a fine of Rs. 200/- in default to R. I. for three months. By the same order the learned Magistrate directed the present petitioners to restore possession of the rooms to the landlord within a month of the date of the order. It is against this order under Section 522(1), Cr. p. C. that the present Rule was directed.
4. Section 522(1), Cr. P. C. is as follows;
"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 immovable property, the Court may, if it thinks fit, when convicting such person or at any time within on3 month from the date of the conviction order the person dispossessed to be restored to the possession of the same."
It would follow that the offence of which a person is convicted must be attended by criminal force or show of force or by criminal intimidation. It is common case that the entry into the rooms by the petitioners was made in the absence of any person. Clearly, therefore, the petitioners' entry could not have been attended by criminal intimidation. As for criminal force, the same is defined by Section 350, I. P. C. as follows:
"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."
Reference may also be made to Section 349, I. P. C. as to the definition of the word "force". It is clear however that by the words "criminal force" it is intended to mean 'criminal force' as applied to a person and not as applied to an inanimate object. As the dispossession concerned took place in the absence of the landlord or his men, the dispossession was not attended by any criminal force or show of force or by criminal intimidation.
True, the trespass continued but its continuance was not responsible for the initial dispossession which, as I have said before, was not attended by criminal force as defined under Section 350, I. P. C. That being the position, the learned Magistrate's order under Section 522(1), Cr. P. C. was without jurisdiction. That order is accordingly set aside.
5. In the result, this Rule is made absolute.
Renupada Mukherjee, J.
6. I agree.