Skip to content


Francis D'Souza Vs. Edward A.L. Gameiro (24.04.1959 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 403 of 1959
Judge
Reported in(1959)61BOMLR1180; 1960CriLJ459
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 522 and 522(1); Indian Penal Code (IPC), 1860 - Sections 339 and 341
AppellantFrancis D'Souza
RespondentEdward A.L. Gameiro
Appellant AdvocateS.A. Neemachwala and ;N.G. Menon, Advs.
Respondent AdvocateC.R. Dalvi, Asst. Govt. Pleader ;T.V. Mascarenhas, Adv.
Excerpt:
.....it -- complainant coming to know of trespass for first time about a month after his locking the room -- complainant when attempting to enter room next day after receiving information of trespass, obstructed from entering by accused -- accused convicted of wrongful restraint under section 341, i.p. code and further ordered under section 522, cr. pr. code to restore possession of premises to complainant -- whether magistrate competent to pass order under section 522 -- complainant whether dispossessed by show of force employed by accused.;the complainant, who had locked and left his room on january 16, 1958, came to know for the first time on february 22, 1958, that the accused had broken open the lock and occupied the room. next day, i.e. on february 23, 1958, when the complainant..........convicting such person or at any time within one month from the date of the conviction order the person dispossessed to be restored to be the possession of the same'.it will be seen that two conditions are required to be fulfilled in order that possession may be restored under s. 522. the first condition is that the accused must have been convicted of an offence attended by criminal force or show of force or by criminal intimidation. the second is that it must appear to the court that by such force or show of force or criminal intimidation any person has been dispossessed of any immoveable property. in the present case it cannot be doubted that the offence of the petitioner of wrongful restraint was attended by show of force. mr. neemchawala contests this, but the very definition of.....
Judgment:

(After stating the facts and holding that the conviction of the petitioner under S. 341, I. P. C. was justified, his Lordship proceeded.) Mr. Neemachwala then argued that the learned Presidency Magistrate erred in law in passing an order under S. 522, Criminal ProcedureCode, for the restoration of possession of the premises to the complainant. In order to appreciate the arguments of Mr. Neemchawala the terms of S. 522 (1) may be set out :

'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 fir, 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 be the possession of the same'.

It will be seen that two conditions are required to be fulfilled in order that possession may be restored under S. 522. The first condition is that the accused must have been convicted of an offence attended by criminal force or show of force or by criminal intimidation. The second is that it must appear to the Court that by such force or show of force or criminal intimidation any person has been dispossessed of any immoveable property. In the present case it cannot be doubted that the offence of the petitioner of wrongful restraint was attended by show of force. Mr. Neemchawala contests this, but the very definition of 'wrongful restraint' as given in S. 339, I. P. Code, shows that the offence consists of obstructing another person so as to prevent that person from proceeding in a certain direction, and the fact that, according to the finding of the learned Presidency Magistrate, the petitioner personally obstructed the complainant from entering the room implies that the offence of the petitioner was attended by show of force.

(2) The question which is not so easy to decide is whether the complainant was dispossessed of his room by the show of force employed by the petitioner. The complainant had locked and left the room on 16-1-1958, and come to know for the first time on 22-2-1958 that the petitioner had broken open the lock and occupied the room. The offence of wrongful restraint took place the next day, I. e., on 23-2-1958. Mr. Neemchwala urged that the complainant must have been dispossessed some time between 16-1-1958 and 22-2-1958, and not when he tried to enter the room on 23-2-1958, so that his dispossession was not brought about by the wrongful restraint at the hands of the petitioner on 23-2-1958. I do not think that Mr. Neemchwala is right in this contention. A person in juridical possession of any immoveable property cannot be rightly said to be dispossessed as soon as a trespasser occupies that property. When a trespasser enters into the property in the absence of the person in possession, the latter, when he comes to know of the trespass, has still the right without recourse to a court of law to try to secure possession back from the trespasser. In other words, a trespasser cannot merely by the act of trespass constitute himself into a person in possession. If, however, the person in juridical possession, after his physical dispossession, allows a sufficiently long time to pass or adopts some course such as instituting a legal action, from which an inference arises that he has mentally relinguished the possession which he had physically lost, then he can properly be held to be dispossessed. In the present case the complainant came to know of the trespass of the petitioner on 22-2-1958 and immediately on the next day he tried to enter the room as he was in law entitled to do. It cannot, therefore, be said that he was dispossessed earlier than on the occasion when the offence of wrongful restraint was committed.

(3) A similar view was taken by a Division Bench of the Allahabad High Court in Mahabir v. Rex AIR 1949 All 228. In that case Mr. Justice Wanchoo delivering the judgment of the Court observed :

'We think that where shortly after the commission of the offence, the true owner becoming aware of the trespass committed in his absence, goes to the spot to regain possession of his land showing readiness to fight if attempt where made to retain possession, the case would be covered by S. 522, Criminal P. C., and an order for restoration of possession can be passed by the Court'.

(4) For the contrary view, Mr. Neemchwala relied on Narayan v. Visaji ILR 23 Bom 494, which was a decision of a Division Bench of his Court consisting of Persons and Renade JJ. The facts in that case were that rhe accused entered into possession of an agricultural land and sowed it with rice in July 1897. About a month and half thereafter, in September 1897, the complainant went to the land but was turned out by force by the accused. On these facts the accused was convicted of criminal trespass under S. 447, I. P. Code, but it was held by this Court that the order passed by the trial Magistrate restoring possession to the complainant was not justified by law. It is clear from the facts of that case that the complainant was fully aware since the month of July 1897 of the illegal entry effected on the land by the accused and of the sowing operations thereon. It was his case that the trespass had taken place in the month of July 1897. Under these circumstances the Court held that the offence of the accused was not dispossessed by the use of force. Delivering the principal judgment in that case Ranade J. observed :

'In the present case, the illegal entry on the land according to the complainant himself, took place in July, 1897, when Ravlo is alleged to have sown it with rice. Complainant went to the place towards the close of September, and Ravlo refused to vacate or pass a Kabulayat, and pushed out complainant. Complainant did not bring any charge for assault, but complained of the trespass which took place some months before. Under these circumstances, it is clear that the offence complained of was not attended by criminal force, nor did the use of such force cause the dispossession'.

It is obvious that the offence which was held to have been committed by the accused in that case was the offence of trespass which took place in July 1897 and it was at that time that the dispossession of the complainant had taken place. No complaint regarding the assault in the month of September 1897 had been filed by the complainant. It is clear, therefore, that this decision does not come in the way of my holding that the dispossession of the complainant in the present case took place when he was wrongfully restrained from entering the room in dispute on 23-2-1958.

(5) The result is that this revision application fails and is dismissed.

(6) Mr. Nemmchwalarequest that the petitioner should be allowed some time for restroing the possession of he premises to the complainant. Ob behalf of the compainant Mr. Mascarenhas agrees pays to the landlord, without prejudice to the rights of either party, all the arrears of rent due in respect of the period form 22-2-1958 till the date on which the petitioner is allowed to hand over possession the complainant is allowed to hand over possession to the complainant I accordingly order to the complainant for the room and that part of the verandah in which the complainat had his kitchen on or before the 31st August 1959. The petitioner has given an undertaking to the court that he will, without prejudice to the rights of either party, pay the tenant Ramprasad Dhobi by the 1st of June all the arears of rend in respect of the period between 22nd February 1958 and 31st May, 1959, If the petitioner fails to pay the rent according to his undertaking, this part of theorder by which time is given to him for handing over possession to the compainant will be vacated.

(7) Revision dismissed.


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