Skip to content


Gadadhar Saharia Vs. Ambika Kumar - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Case NumberCriminal Revn. No. 11 of 1952
Judge
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439 and 522; Indian Penal Code (IPC) - Sections 447
AppellantGadadhar Saharia
RespondentAmbika Kumar
Appellant AdvocateJ.C. Sen, Adv.
Respondent AdvocateP.N. Roy and U. Goswami, Advs.
DispositionPetition dismissed
Prior history
Ram Labhaya, J.
1. The petitioner was convicted under Section 447, Penal Code, for committing criminal tres-pass on the land belonging to the complainant. He was also ordered to restore possession of the land under Section 522, Criminal P. C. His appeal was summarily dismissed. He has now invoked the revisional jurisdiction of this Court.
2. I have heard the learned counsel and I see no reason to interfere with the finding that the petitioner committed criminal trespass by entering on the
Excerpt:
- .....in law. he points out that there is no clear finding that the complainant was dispossessed of the land by force or show of force or criminal intimidation. he has also referred to the statement of the complainant, according to which he received information about the trespass from his servant and it was on the next day that he went to the land and found the petitioner and another person ploughing the land. he protested but was threatened. the learned counsel points out that even according to this statement the dispossession could not be said to have been caused by resort to force or show of force or criminal intimidation. this occurred when criminal trespass was committed on the previous day in the absence of the complainant. 3. the learned magistrate's finding which was not differed from.....
Judgment:

Ram Labhaya, J.

1. The petitioner was convicted under Section 447, Penal Code, for committing criminal tres-pass on the land belonging to the complainant. He was also ordered to restore possession of the land under Section 522, Criminal P. C. His appeal was summarily dismissed. He has now invoked the revisional jurisdiction of this Court.

2. I have heard the learned counsel and I see no reason to interfere with the finding that the petitioner committed criminal trespass by entering on the land belonging to the complainant and preventing him from re-entering on it by show of force, the finding being essentially on a question of fact on which the two Courts below have concurred. The contention which the learned counsel has pressed is that the order directing the restoration of possession of property under Section 522 is not sustainable in law. He points out that there is no clear finding that the complainant was dispossessed of the land by force or show of force or criminal intimidation. He has also referred to the statement of the complainant, according to which he received information about the trespass from his servant and it was on the next day that he went to the land and found the petitioner and another person ploughing the land. He protested but was threatened. The learned counsel points out that even according to this statement the dispossession could not be said to have been caused by resort to force or show of force or criminal intimidation. This occurred when criminal trespass was committed on the previous day in the absence of the complainant.

3. The learned Magistrate's finding which was not differed from by the learned Sessions Judge on appeal based on the statement of the complainant was to the effect that on his protest he was threatened with injury. He was then prevented from entering on his land by show of force at least. This incident no doubt occurred on the second day after the entry of the petitioner on the land.

4. Section 522, Criminal P. C., provides that 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 necessary that the offence should be attended by force or show of force or criminal intimidation and dispossession too should have been caused by such force etc. The question then arises whether it can be said in this case that the offence of criminal trespass of which the petitioner has been convicted was attended by force or show of force and the complainant was dispossessed by such force or show of force. There is no doubt that the complainant has been dispossessed. If dispossession occurred at the time when criminal trespass was committed by entry on the land, there was admittedly no resort to force or show of force or any criminal intimidation. The element of force or show of force comes in if it is held that the offence of criminal trespass was committed or completed on the second day when the complainant tried to enter on the land and was prevented from doing so by threats from the petitioner and his co-accused who has been acquitted. The definition of 'criminal trespass' given in Section 441, Penal Code, provides that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, commits criminal trespass. Similarly anyone who having lawfully entered into or upon such property, unlawfully remains there, with intent there by to intimidate, insult or annoy any such person, or with intent to commit an offence also commits criminal trespass.

5. In this case the entry was in the absence of the complainant. There is no evidence that there was any show of force at that time, nor is there any evidence that the entry or trespass was with the intention required to convert it into an offence. The intention was made known that day when the complainant was prevented from entering on his land by show of force. In the peculiar circumstances of the case I think it may not be wrong to hold that the offence was committed or at Least completed when the petitioner by his conduct made it known that his entry or trespass was with the intent requisite for the offence of criminal trespass. In this view of the matter the offence committed would be attended by show of force and dispossession of the complainant would also be by such force or show of force. It would not, therefore, be wrong to direct restoration of possession to the complainant under Section 522, Criminal P. C.

6. Allsop J. declined to interfere with an order directing restoration of possession under similar circumstances in Mt. Chhabia v. Ram Charan, A. I. R. 1943 ALL. 7. His view was that 'it is open to argument that it was not necessarily at the time when the criminal trespass goes upon the property that dispossession takes place. It may perhaps be said that it sometimes takes place when he prevents the rightful possessor from coming upon the property.' This case was followed by a Division Bench of this Court of which I was a member in Lalit Mohan Pal. v. The State, cri. Revn. No. 71 of 1951 (Assam). This view may be justified on the 'ground where entry is peaceful and in the absence of the person in possession who is prevented from re-entering, and thus becomes aware of the entry or trespass by a stranger, the prevention of his entry by force or show of force or without it brings about his ouster. His possession may be deemed to continue at least in legal construction till he is so ousted.

7. Even if there may be some doubt as to the legality of the direction for restoration of possession I have no doubt that the order is just. The complainant was put into possession of the property by government officials. He got a settlement for it. The petitioner has claimed that he was in possession of the property before the settlement and there was no dispossession at all. This version has not been accepted by the Courts below. There is no doubt, therefore, that he has dispossessed the complainant and also by show of force. Interference in revision would not be desirable in these circumstances. Every technical error of law does not make interference obligatory. Normally the High Court interferes to prevent injustice which would be otherwise irreparable. The petitioner has another remedy available to him. As held in Loke Nath v. Nidu Biswas, 6 cal. W. N. 469, the High Court should not interfere when a remedy can easily be obtained from a civil Court.

8. For reasons given above I decline to interfere. The petition is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //