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Hati Nathubhai Mulubhai Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1955CriLJ838
AppellantHati Nathubhai Mulubhai
RespondentState and anr.
Cases ReferredEmperor v. Amru
Excerpt:
- - the question whether criminal force was used by the applicant has to been reserved by the sessions judge for determination by the trial court and we would not like to prejudice the issue by expressing any opin- ion on it......by the opponent and that the applicant had entered it by either opening or breaking the lock. the learned magistrate passed the order as prayed by the police. the applicant thereupon applied to the magistrate requesting to be heard and alleged that he was on the date of application in possession of the house and prayed that status quo should be maintained.the learned magistrate however dismissed his application on the ground that as an order on the police report was already made, nothing could be done by him. the applicant applied in revision against the order to the court of the sessions judge, junagadh, but his application was rejected. the learned sessions judge held that the magistrate had jurisdiction to pass an interim order of restoration of possession and maintain the status.....
Judgment:
ORDER

Baxi, J.

1. The facts leading to this revision may be briefly stated as under :

2. The opponent filed a complaint with the Sub-Inspector of Police, Junagadh, that he had purchased a certain house in Malia by a registered sale deed dated 16-11-53 and was in possession of the house and had locked it. On 8-12-53 while he was opening the lock and entering the house he thought that the applicant was going to prevent him from entering it and therefore he tried to relock the house but the applicant tried to prevent him from doing so by catching hold OS his hand but he succeeded in relocking the house. The opponent then went home but in his absence the applicant opened the lock and entered the house and began to throw away its contents on the road. On hearing this the opponent came and found the applicant sitting in the door of the house and was prevented by him from entering the house.

During the investigation the police sent a report to the First Class Magistrate wherein they requested for an order that the possession of the house may be restored to the complainant after taking security from him. In this report the police stated that the house was purchased by the opponent and that the applicant had entered it by either opening or breaking the lock. The learned Magistrate passed the order as prayed by the police. The applicant thereupon applied to the Magistrate requesting to be heard and alleged that he was on the date of application in possession of the house and prayed that status quo should be maintained.

The learned Magistrate however dismissed his application on the ground that as an order on the police report was already made, nothing could be done by him. The applicant applied in revision against the order to the Court of the Sessions Judge, Junagadh, but his application was rejected. The learned Sessions Judge held that the Magistrate had jurisdiction to pass an interim order of restoration of possession and maintain the status quo. The applicant had argued before him that no force was used by him but the opponent read a telegraphic notice sent to him by the applicant regarding the house in question and had argued that the Criminal Court must else protection against an act of highhandedness. The learned Sessions Judge however did not give a finding whether criminal force was used or not and reserved it for determination by the trial Court after trial. The applicant has now approached this Court in revision against the Sessions Judge's order.

3. The learned Advocate for the opponent showed us a registered conveyance executed in favour of the opponent and a telegram purporting to have been dispatched by the applicant asking him to deliver possession of the house. On these materials he submitted that it was prima facie established that his client was in possession of the house and the applicant had forcibly dispossessed him. He argued on the strength of - 'Emperor v. Amru', 37 Cri LJ 720 (Nag) (A), that the opponent's possession was not lost by the high-handed action of the applicant and it was the duty of the Court to give protection to persons forcibly dispossessed in this manner. Though he conceded that there was no specific provision in the Criminal P. C. under which in a complaint for house trespass the Court can put the complainant in possession of the property by an interim order, he submitted that the Court should exercise its inherent powers Under Section 561A, Criminal P. C.

Section 522, Cr.PC deals with the powers of the Court to restore the person dispossessed of immoveable property. But they can be exercised only after conviction and if the offence of which the accused is convicted is attended by force or show of force or by criminal intimidation, and if it appears to the Court that the person has been dispossessed by such force or show of force or criminal intimidation. These provisions are mandatory and the Courts cannot invoke their inherent powers to enlarge the scope of that, section and make orders of restoration even before conviction or the question whether the offence was attended by force etc. is decided. If the Court were to make orders of restoration under purported exercise of its inherent powers without complying with the provisions of Section 522, that would be clear contravention of the provisions of that section.

Moreover on the opponent's own admission in his complaint, the applicant had entered the house during his absence and therefore it cannot be said that the criminal trespass was attended by criminal force or show of force or intimidation. The opponent's learned Advocate argued that when the applicant forcibly prevented the opponent from re-entering the house after he came to the house, this trespass must be regarded as having been attended by criminal force end we should exercise our inherent powers. This point is not free from doubt. The question whether criminal force was used by the applicant has to been reserved by the Sessions Judge for determination by the trial Court and we would not like to prejudice the issue by expressing any opin- ion on it. All that we say is that there is no provision in the Criminal Procedure Code which justifies interim restoration of possession of immoveable property to the complainant and there-' fore the order cannot be sustained.

We may add that the learned Magistrate was very wrong in refusing to give a hearing to the applicant against his ex parte order. If he thought fit to rely upon the police representation that the applicant had broken or opened the lock, it was his duty to give a fair hearing to the opponent (applicant?) and allow him to show prima facie that the alleged criminal trespass was not attended by criminal force, show of force or intimidation. It is true that Under Section 522 the Court is not bound to hear any party, but that is because the order has been held to be a party of the original order of conviction against which; the accused had an opportunity of being heard.

4. We wish that the provisions of the Criminal P. C had been consulted before this drastic order was made. The revision is allowed and the learned Magistrate's order is set aside.


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