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Prem Chand Sharma Vs. State (Delhi Admn.) and Another - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtDelhi High Court
Decided On
Case NumberCrl. R. No. 129 of 1984
Judge
Reported in1985CriLJ374; 1985(1)Crimes1060; 1985(8)DRJ236; 1985RLR142
ActsIndian Penal Code (IPC), 1860 - Sections 34, 411 and 448; Code of Criminal Procedure (CrPC) , 1973 - Sections 456 and 456(2)
AppellantPrem Chand Sharma
RespondentState (Delhi Admn.) and Another
Advocates: A.S. Vir and; Gurdial Singh, Advs
Excerpt:
.....not passed.; that once the court finds that a person has been wrongfully dispossessed by use of force, possession of the premises must be restored to him irrespective of the fact as to who after dispossession is found to be is possession. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice,..........criminal force or show of criminal force or intimidation. once such dispossession is proved, the person dispossessed must be put back in possession. 10. the expression used in the provision is 'order that possession of the same be restored to that person after evicting by force, if necessary, any other person who may be in possession of the property'. obviously, the expression used connotes that the possession has to be restored even if persons other than the one convicted is in possession of the property. what is significant is the finding that the person has been wrongfully dispossessed by use of force and once that condition is fulfillled possession must be restored from whosoever found in possession. this, in fact, has to be like this, and after the finding that a person has been.....
Judgment:
ORDER

1. This petition, in fact, is yet at admission stage but it figured at No. 1 in the list of regular cases. This has, perhaps, happened because on 23-8-84 when Mr. L. D. Adlakha Advocate appeared for respondent 2 the court directed the case to be listed for hearing in the second week of October 1984. In any case, it is now admitted. Since a notice was given to the other party and appearance was put in on 23-8-84. I am deciding the matter after hearing the counsel for the petitioner.

2. This petition calls for examination of the scope of S. 456, Cr.P.C. and the ambit of that power. However, for proper appreciation, I find it necessary to make a reference to brief facts.

3. The petitioner is the owner of premises No. 267 Kucha Ghasi Ram, Delhi. He filed eviction proceedings before the Addl. Rent Controller Delhi in which a decree was passed and the Addl. Rent Controller issued warrant of eviction directing that any person bound by the decree may be dispossessed and the possession restored to the petitioner. Consequently, the petitioner was restored possession on 9-8-73 of the whole of the premises by the bailiff and other staff of the court who were accompanied by police officials for providing assistance in the execution of the decree. After this was done on 9th August, 1973 the petitioner locked the premises and went away to his house. Thereafter, the petitioner found on the next day that the persons who were made to vacate the premises in execution of the decree had re-entered the premises and taken possession of the house. The petitioner made a report in writing to the Police Station Lahori Gate in pursuance of which a case under Ss. 448, 411/34 IPC and other relevant sections was registered. This case was tried by Smt. Aruna Suresh, Metropolitan Magistrate who believed the entire execution proceedings to be in order but observed that the prosecution has not been able to make out any case against the accused persons other than Jawahar Lal and his brother Nathu Ram. This was done entirely on technical reading of the matter after believing that the other accused persons such as Urmila, Nirmala, Kamla Devi and Champa Devi were also dispossessed. Conviction was recorded against Jawahar Lal and Nathu Ram under S. 448/34 IPC. The accused Tara Devi and Badri Parshad were also acquitted. Both the convicted accused were, however, dealt with under the Probation of Offenders Act and some of the accused were acquitted after compromise. This order of the learned Metropolitan Magistrate came to be recorded on 12-2-1981 and an application for restoration of possession of the premises was preferred on 17-2-1981 before the learned Metropolitan Magistrate. The learned Magistrate, however, refused to pass any order on this application on the ground that an appeal has been preferred against the conviction.

4. During hearing of the appeal before the learned Addl. Sessions Judge, Shri T. S. Oberoi, again a petition was moved under S. 456 sub-section (2), Cr.P.C. During the pendency of appeal one of the convicted persons Nathu Ram died and the learned Addl. Sessions Judge by his order dated 13th February, 1984 maintained the conviction of Jawahar Lal.

5. It would thus be seen that the fact that petitioner has been dispossessed of the premises by resort to a criminal act has also been upheld in the appeal. The learned Addl. Sessions Judge, however, in respect of the petition under S. 456(2), Cr.P.C., in his order has made the following observations :-

'However, keeping in view that some other accused, including wife of Jawahar Lal, have been acquitted in the case, and also that there is no evidence, on record, regarding any distinct portion of the house being with appellant Jawahar Lal, or the persons claiming through him, it is not possible to pass any effective order, with regard to restoration of possession of any portion of the house to the complainant.'

6. It is actually against this order that the petitioner has now made a grievance. Mr. Avtar Singh, learned counsel for the petitioner has urged before me that the learned Addl. Sessions Judge has fallen into a grave error in as much as he had failed to appreciate that all that he was required to show was that he has been dispossessed of immovable property by force and in that view of the matter he had to be put in possession under the process of law and in doing so any other person who may be found to be in possession was to be meted out the same treatment or else there would neither be an end to litigation nor would it serve the ends of justice. Learned counsel for the petitioner urged and rightly so that it was not necessary for him to show which particular person is in possession and of which portion and all that he had to show was that the possession was lawfully delivered to him and he was thereafter deprived of the possession by resort to a criminal force and by illegal means. His further contention is that the bailiffs report has clearly stated as to which particular portion was in possession of which particular accused and that there was no justification for learned Addl. Sessions Judge to observe that 'there is no evidence, on record regarding any distinct portion of the house being with appellant Jawahar Lal, or the persons claiming through him.' Mr. Avtar Singh, counsel for the petitioner, thereforee, urged before me that about 11 years back the petitioner was given possession and thereafter he is suffering for want of justice.

7. I have carefully considered the facts and circumstances of the case and have also examined the arguments advanced by Shri Avtar Singh. As already stated, this calls for consideration of the scope of S. 456, Cr.P.C. and the ambit of that power. Section 456, Cr.P.C., confers a jurisdiction of quasi civil nature on a criminal court. This is done on grounds of general public policy and general convenience and the criminal courts have been empowered by legislature in certain cases to deal with the question of possession of property which otherwise falls within the exclusive province of civil courts. It would thus be seen that the criminal courts are so empowered to ensure that no man flouts law and relies upon physical force to achieve his ends. Thus the object of law manifestly is to prevent any person from gaining wrongful possession of the property by resort to unlawful means and forcible act. Thus this provision enables a criminal court by summary order, to restore the state of things which existed at the time of dispossession by the convicted person or other persons. If a person, who has been put in possession by a civil court in pursuance of a decree, is dispossessed by show of force or by resort to a criminal act, he should and is entitled to receive assistance from a criminal court by an order of restoration under these provisions.

8. The order of restoration passed under this section, however, is not one which the court is automatically bound to pass in every case, but is in the discretion of the court. I would, however, like to caution that the exercise of this discretion has to be a judicial one. It can neither be capricious nor arbitrary nor whimsical. The discretion essentially has to be exercised to achieve the object for which legislature in its wisdom has carved out the provision. The discretion in that view of the matter, thereforee, has to be exercised like any other judicial discretion. The provision envisages existence of two main conditions for its application which are :-

(i) Commission of an offence attended by criminal force or show of criminal force or criminal intimidation;

(ii) A finding that a person is dispossessed of an immovable property by such criminal force or criminal intimidation.

9. The foundation for an order of restoration is that it must appear that a person in whose favor the order is made has been dispossessed of specific immovable property by use of criminal force or show of criminal force or intimidation. Once such dispossession is proved, the person dispossessed must be put back in possession.

10. The expression used in the provision is 'order that possession of the same be restored to that person after evicting by force, if necessary, any other person who may be in possession of the property'. Obviously, the expression used connotes that the possession has to be restored even if persons other than the one convicted is in possession of the property. What is significant is the finding that the person has been wrongfully dispossessed by use of force and once that condition is fulfillled possession must be restored from whosoever found in possession. This, in fact, has to be like this, and after the finding that a person has been dispossessed by force the persons other than the convicted one who may be in possession cannot be said to be in lawful possession. If that were not so, it would virtually defeat the legislative policy and there can be no vindication of justice if such persons are not dispossessed while ordering restoration. The policy of the legislature manifestly seems to be that nobody should be allowed to thrive on his criminal and wrongful acts. What is material, thereforee, is that the immovable property wrongfully taken away has to be restored irrespective of the fact as to who after wrongful dispossession is found to be in possession.

11. Adverting to the facts of this case, it would be seen that both the courts have believed that possession of the premises was lawfully delivered to the petitioner in pursuance of a court decree on 9th August, 1973. It has also been found that he has been wrongfully dispossessed by resort to a criminal trespass in his absence on the next following day and two of the accused were convicted; some compromises while others were acquitted. In short, the crux of the finding is that the complainant petitioner has been dispossessed by resort to a criminal force and criminal act after he was put in lawful possession by an order of the court. That obviously, is the end of the road for the other side. Under the circumstances there cannot be a better case than the one with which I am dealing and in which the court below should have exercised its discretion in ordering restoration of possession from any person, whosoever to be found in possession including the convicted person. That alone could serve the ends of justice. It is an outrage on law that the petitioner who was put in lawful possession under orders of the court about 11 years back has been refused the benefits of his property because certain miscreants thought of taking resort to a criminal act and dispossessing the complainant. With these remarks I find sufficient force in the petition.

12. I may, however, place on record my regrets that I have been deprived of the privilege of assistance by Mr. L. D. Adlakha, Advocate, who failed to appear for respondent 2, the real contesting respondent.

13. The petition is accordingly accepted and it is directed that the petitioner shall be delivered possession of his premises No. 267, Kucha Ghasi Ram, Delhi, forthwith from whosoever may be found in possession. The trial court shall in this regard issue appropriate directions.

14. Petition allowed.


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