Skip to content


Silla Ramulu Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1971CriLJ1401
AppellantSilla Ramulu
RespondentState
Cases ReferredRajbanshi Thakur v. Chandey Jha
Excerpt:
.....trespasses into the house and the owner after return from the office is not permitted to enter therein on threat of violence, and even after the trespasser is convicted in a criminal court, the court would be powerless to restore possession of the house to the true owner on the ground that he was absent from the house when the offence was committed and no force was used against him, the very purpose with which sec, 522 has been put in the statute book would be defeated. having regard to this evidence, i am satisfied that the petitioner had trespassed into the house by show of force and that by such show of force he dispossessed the complainant p......an immovable property in the absence of the person in possession and if the accused uses criminal force, criminal intimidation or show of force at the time when the person in possession comes to protest for the first time, the provisions of section 522 of the code of criminal procedure will become attracted.no order under section 522, criminal p.c. however was passed in that case because there was no evidence to show that when after the occurrence the real owner came and protested against the action of the trespasser, the latter used any force against the owner. in my opinion, criminal force or show of force or criminal intimidation as mentioned in section 522 need not necessarily be an ingredient of the offence with the commission of which the accused is convicted. the words 'attended.....
Judgment:
ORDER

B.K. Patra, J.

1. This application in revision is directed against an order of Shri G. C. Ray, Magistrate, 1st Class, Berhampur convicting the petitioner Under Section 448, I, P.C. and sentencing him to-pay a fine of Rs. 50/- and in default to suffer simple imprisonment for ten days and further directing Under Section 522,. Criminal P.C. that possession of the disputed house be delivered to the complainant. The disputed house admittedly belongs to one Api Gouduni (P.W. 1). The petitioner was a tenant in that house-for about 14 years and according to the prosecution case he had vacated it about four months before the occurrence as-the house required extensive repairs. The prosecution case is that after the petitioner vacated the house, the complainant almost reconstructed it and had' kept certain articles belonging to her therein under lock and key. On the night of 31-7-1966 at about 2 a.m., the-petitioner is alleged to have broken open the lock of the house and forcibly entered therein and to have kept his grocery articles there. The occurrence was seen by Kundana Gouduni (P.W. 2), the mother of the complainant who protested against the high-handed action of the petitioner, but as she was threatened' she retired from the scene and informed her daughter about it next morning. On the morning following the occurrence, the complainant being informed about the incident by her mother came to the disputed house and questioned the petitioner about it and the petitioner also threatened to assault her. So she reported the matter to the Police who-took up investigation and fearing breach of peace, kept the house under lock and1 key and in due course submitted' chargesheet for an offence Under Section 457, IPC

2. The petitioner denied having1 forcibly entered into the house on the night of occurrence. His case is that he has been a tenant in the house since about 14 years and it is he who had effected extensive repairs to the house and when he wanted that the cost of the repairs incurred by him should be adjusted towards rent due from him, a dispute arose between him and the complainant and this case was filed against him.

3. Ten witnesses were examined-for the prosecution and 11 for the defence and after an exhaustive consideration of the evidence, circumstances and-the documents exhibited in the case, the learned Magistrate believed the prosecution case and held that the petitioner was a tenant in the house, had' vacated it four months before the occurrence, that thereafter it is the complainant who effected repairs to the house and was keeping her articles therein and that on the night of occurrence, the petitioner with the help of two other persons forcibly broke open the lock of the house and entered into it and kept his grocery articles therein. -On these findings, he found that the offence that was committed by the accused-petitioner is one Under Section 448, IPC and convicted him accordingly.

4. Mr. S. Mohanty learned Advocate appearing for the petitioner has not seriously assailed the findings recorded by the learned Magistrate. But he drew my attention to the following passage occurring in the concluding portion of the judgment and argued that in view of this observation, the learned Magistrate ought to have recorded an order of acquittal. This is what the learned Magistrate said:

The accused has committed the crime in a fit of rage and in order to assert his bona fide right of possession over the property. But in doing so, he has taken the law into his own hands and has committed criminal trespass into the house.

It is argued that when the view of the learned Magistrate is that the petitioner entered into the house in assertion of his bona fide right of possession over the property, it rules out the intention which is necessary to constitute an act of criminal trespass.

5. The learned Magistrate has positively found from evidence that although the petitioner was a tenant in respect of the house for a very long period, yet he had vacated it when the complainant wanted to reconstruct the house. The petitioner was out of possession of the house for a period of nearly four months within which time it is the complainant who had effected repairs to the house. It has also been found that it is the complainant who had kept her articles in the house and had locked it. 'Bona fide claim of right' which would prevent a trespass into the house from, being a criminal offence must be a claim with regard to the right to enter into the house. It is the entry into the house which must have been made in bona fide claim of right in order that the entry may not amount to a criminal trespass. It is therefore manifest that the defence of bona fide claim of right will be open to the petitioner only if he has a bona fide belief that he has a right to enter into the house in question. The petitioner has no manner of title to the house and 'he has never claimed any such right. He was only a tenant therein and such tenancy came to an end about four months before the occurrence. There is no evidence to show that during these four months when the house was under repairs he was paying any rent to the complainant. Without there being a fresh tenancy, he cannot possibly have any right to occupy the house. The very fact that he chose to enter into the house at 2 a. m. in the night and that too after breaking open the lock which the complainant had put in the house, disproves that he could have ever entertained a bona fide belief that he had a right to enter into the house. In these circumstances and having regard to the categorical findings recorded by the learned Magistrate, I am not inclined to attach any significance to his observation quoted above. I must, therefore, hold that the petitioner has been rightly convicted Under Section 488, Indian Penal Code.

6. The more important argument advanced on behalf of the petitioner relates to the order passed Under Section 522, Criminal P.C. Sub-section (1) of Section 522, Criminal P.C. runs thus:-

522. Power to restore possession of immoveable property.-(1) 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 one month from the date of the conviction, order the person dispossessed to be restored to the possession of the same.

It is now well settled that the only force that is contemplated Under Section 522 is the force as applied to human body, the use of force as mentioned in Sections 349 and 350 of the Indian Penal Code and not force as applied to any inanimate object. It is therefore argued by Mr. Mohanty that merely because the house was in possession of the complainant when the accused forcibly entered into it by breaking open the lock, the operation of Section 522, Criminal P.C. is not attracted in view of the admitted case of the prosecution that the complainant, who is the owner of the house, was not present at the time of occurrence and no force has been used as against her. The jurisdiction conferred on criminal Courts by this section is based on public policy and general convenience. The principle of civil law that a person in peaceful possession of land should be protected against dispossession by requiring, whoever claims a right to pos- sess against him, to go to a competent Court and dispossess him only in due course of law is sought to be enforced by empowering criminal Courts under this section to direct restoration of possession with a view to see that no man flouts the law and relies upon physical force to achieve his ends. This purpose would be completely defeated if it is insisted that to attract the operation of this section it must be necessary that the person aggrieved should have been present at the time the offence is committed and force should have been used against him. If, for example, a person in peaceful possession of a house has gone to his office after locking the doors and during his absence a person trespasses into the house and the owner after return from the office is not permitted to enter therein on threat of violence, and even after the trespasser is convicted in a criminal Court, the Court would be powerless to restore possession of the house to the true owner on the ground that he was absent from the house when the offence was committed and no force was used against him, the very purpose with which Sec, 522 has been put in the Statute book would be defeated. For these reasons, I am unable to accept the view expressed by a Division Bench of the Calcutta High Court in Nani Gopal Deb v. Bhima Charan Rakshit : AIR1956Cal32 , where their Lordships say that when an entry into the rooms by the accused was made in the absence of the landlord or his men, it cannot be said that the dispossession was attended by any criminal force or show of force or by criminal intimidation. Reliance is placed by Mr. Mohanty on a decision of the Patna High Court in Jagdish Rawani v. Dr. Rajendra Nath Sarkar : AIR1964Pat553 . Apart from the proposition enunciated therein that criminal force referred to in Section 522. Criminal P.C. must be committed against a person and not against any inanimate object, there is nothing in the decision which helps the petitioner. In fact, his Lordship at para 4 of the judgment has observed:

It seems to me that the correct legal position is that, if the accused takes possession of an immovable property in the absence of the person in possession and if the accused uses criminal force, criminal intimidation or show of force at the time when the person in possession comes to protest for the first time, the provisions of Section 522 of the Code of Criminal Procedure will become attracted.

No order Under Section 522, Criminal P.C. however was passed in that case because there was no evidence to show that when after the occurrence the real owner came and protested against the action of the trespasser, the latter used any force against the owner. In my opinion, criminal force or show of force or criminal intimidation as mentioned in Section 522 need not necessarily be an ingredient of the offence with the commission of which the accused is convicted. The words 'attended by' should include an act done simultaneously with or immediately after another act. Hence, if the commission of an offence is immediately or shortly after followed bv force or show of force or any criminal intimidation, the case would be covered by this section. Use of criminal force means actual use thereof. Criminal intimidation connotes a threat of use of force by another person. The expression 'show of force' used in Section 522, must therefore be something different from these two. It may fall short of the use of force or a threat to use force. It, therefore, appears to me that if the accused or his accomplices having entered into the house do not quit it when the true owner protests against such unauthorised entry and are ready to fight, the offence can be said to have been attended by show of force. Show of force may therefore consist in the physical presence of the accused, his servant or companions in such a way that the true owner is put to the fear that if he tries to regain possession by force, he will be met by force. In fact, Saraju Prasad, J. in. Rajbanshi Thakur v. Chandey Jha : AIR1951Pat307 held that if at the time of taking forcible possession of the property, the accused threatened to assault either the complainant or in his absence any of his men or even his neighbour, that would amount to criminal force or show of criminal force as required by Section 522. To sum up therefore (1) Section 522, Criminal P.C. does not require that force or show of force or intimidation should necessarily be one of the ingredients of the offence with the commission of which the accused has been convicted; (2) It is enough that the commission of an offence is attended by force or show of force or intimidation; (3) If at the time of taking forcible possession of the property, the accused threatens to assault the complainant or in his absence any of his men or even his neighbour, that would amount to criminal force or show of criminal force as required by Section 522; (4) Where shortly after the commission of the offence, true owner becoming aware of the commission thereof goes to the spot to regain possession of his property and is prevented from doing so by the accused showing readiness to fight if attempt were made to regain possession, the case would be covered by Section 522, and (5) The commission of the offence and the force, show of force or intimidation must be so connected as to constitute more or less a single event or a single transaction and the dispossession must be a direct consequence of the force, show of force or intimidation.

7. Judged in the light of the principles above-mentioned, there is evidence to show that when the petitioner actually trespassed into the house by breaking open the lock, P.W. 2, the mother of the owner who was sleeping on a verandah near the disputed house questioned the accused about his high-handed action, but the latter threatened to assault her by raising a stick and out of fear she kept quiet and informed her daughter about the incident early next morning. There is also evidence to show that on hearing about the occurrence from her mother, the complainant Api Gouduni P.W. 1 came to the disputed house and questioned the accused about his action, and as she was threatened to be assaulted by the accused, she went and reported the matter at the Police Station. Having regard to this evidence, I am satisfied that the petitioner had trespassed into the house by show of force and that by such show of force he dispossessed the complainant P.W. 1, the true owner therefrom. The learned Magistrate was therefore sustained in passing an order Under Section 522 of the Code of Criminal Procedure.

8. The revision petition is dismissed.


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