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Yashinkhan Ahmedkhan and ors. Vs. Hushanbhai Rajabbhai and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR175
AppellantYashinkhan Ahmedkhan and ors.
RespondentHushanbhai Rajabbhai and ors.
Cases ReferredKamalsing v. State
Excerpt:
- - 2. being aggrieved by this order of conviction as well as the order for restoration of possession, the accused went in revision to the sessions court by filing criminal revision application no. a bare look at the section will make it clear-and about this there is no dispute before us-that the section contemplates three conditions which must be satisfied before a magistrate can pass an order of restoration of possession under sub-section (1). these conditions are: the learned judge said in paragraph 6: when the respondents effected trespass upon the house belonging to the petitioner in his absence they clearly committed a crime of which as i have already said, they have been convicted; in the unreported decision mentioned above as well as the decision of the madras high court in.....d.p. desai, j.1. this matter comes before us on a reference made by our learned brother n.h. bhatt, j. who found that as regards interpretation of section 456 of the code of criminal procedure, 1973 (the code), there is a conflict of opinion as disclosed from the judgment of the bombay high court and two subsequent judgments of this court. in fact, the learned judge found that there is an inherent conflict between the two subsequent decisions of this court also. all the three judgments are by the single judge. the facts leading to this revisional application may now be briefly stated. one roshanbibi, predecessor-in-title of the present petitioners had obtained a decree for possession of property against opposite party no. 1, who prior to the suit in which this decree was passed, was a.....
Judgment:

D.P. Desai, J.

1. This matter comes before us on a reference made by our learned brother N.H. Bhatt, J. who found that as regards interpretation of Section 456 of the Code of Criminal Procedure, 1973 (the Code), there is a conflict of opinion as disclosed from the judgment of the Bombay High Court and two subsequent judgments of this Court. In fact, the learned Judge found that there is an inherent conflict between the two subsequent decisions of this Court also. All the three judgments are by the Single Judge. The facts leading to this revisional application may now be briefly stated. One Roshanbibi, predecessor-in-title of the present petitioners had obtained a decree for possession of property against opposite party No. 1, who prior to the suit in which this decree was passed, was a tenant of Roshanbibi. In execution of that decree, actual possession was taken through the Court by Roshanbibi on April 18,1973. She remained in possession thereof thereafter. However, on March 4,1974, when the property which is a house, was locked, was entered upon by opponent Nos. 1 & 2 herein (who will hereafter be referred to as 'the accused' for the sake of clarity). When Roshanbibi came to know about this, she went to the house and told the accused to go out. Both the accused, however, refused to go out and instead beat Roshanbibi and prevented her from entering the house. The result was that she had to file a complaint in respect of offences punishable under Sections 451, 341 and 323 of the Indian Penal Code in the Magistrate's Court. In that complaint, the learned Magistrate convicted the accused of the offences punishable under Sections 451, 323 and 341 of the Indian Penal Code and passed an appropriate order of sentence, in respect of each of the three offences against both the accused. The learned Magistrate further held that Roshanbibi was dispossessed by the accused by using criminal force; and ordered possession to be restored to her heirs as she had died during the trial of the complaint. This order was passed under Section 456 of the Code. We will be referring to Roshanbibi as the complainant hereafter.

2. Being aggrieved by this order of conviction as well as the order for restoration of possession, the accused went in revision to the Sessions Court by filing Criminal Revision Application No. 55 of 1976. The learned City Sessions Judge, by his order dated September 20, 1976 allowed that revisional application in so far as the order for restoration of possession passed by the learned Magistrate under Section 456 of the Code was concerned. The accused did not question their conviction and order of sentence in that revision. The learned Judge was impelled to set aside the order of restoration of possession because he thought that he was bound by a decision of Raju, J. (as he then was) in Hemaji Taranji v. The State II G.L.R. 240. The aforesaid decision was rendered under Section 522 of the Code of Criminal Procedure, 1898 (the old Code) which is in pari materia with the present provision in so far as the question posed before us is concerned. It is against this order passed by the learned City Sessions Judge that the heirs of the complainant have filed this revisional application. As stated in the beginning of this judgment, the question arising in this revision application pertains to the correct interpretation of the provisions of Section 456 of the Code. Before going to the question of interpretation however, we may take note of certain findings of fact in the present case which will be in the ultimate analysis relevant for the purpose of deciding whether the order passed by the learned City Sessions Judge in the present case was correct and legal. These findings are to be found from the judgment of the trial Magistrate; and we may say that the learned City Sessions Judge has not disturbed any of these findings in the revision application. The learned Magistrate, to quote his words stated in the first instance. 'This offence took place on 4-3-1973 at 9-00 p.m. There is truth in what is deposed by the prosecution witnesses that when Roshanbibi came to know that her lock was broken open, she rushed to that room and when she found both the accused inside the room, she must have commenced quarrel and there is every reason to believe that the accused must have dealt first blows to her and she must have been driven out of the room by the accused person....Roshanbibi was beaten only with a view to prevent her from taking possession of the room.... The prosecution side has proved that accused Nos. 1 & 2 had committed trespass into the room in possession of Roshanbibi. The prosecution side has also proved that accused Nos. 1 & 2 had voluntarily caused simple hurt to Roshanbibi in aid and abetment of each other. The prosecution side has also proved that Roshanbibi was restrained wrongfully by the accused and she was legally entitled to possess.' Section 456 of the Code may now be reproduced. It occurs in Chapter XXXIV titled 'Disposal of property'.

456. (1) When 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 intimidation, any person has been dispossessed of any immovable property, the Court may, if it thinks fit, 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.

Provided that no such order shall be made by the Court more than one month after the date of the conviction.

(2) Where the Court trying the offence has not made an order under Sub-section (1), the Court of appeal, confirmation of revision may, if it thinks fit, make such order while disposing of the appeal, reference or revision, as the case may be.

(3) Where an order has been made under Sub-section (1), the provisions of Section 454 shall apply in relation thereto as they apply in relation to an order under Section 453.

(4) No order made under this section shall prejudice any right or interest to or in such immovable property which any person may be able to establish in a civil suit.

A bare look at the section will make it clear-and about this there is no dispute before us-that the section contemplates three conditions which must be satisfied before a Magistrate can pass an order of restoration of possession under Sub-section (1). These conditions are: (1) that the accused person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, (2) that it appears to the Court that by such force or show of force or intimidation, any person has been dispossessed of any immovable property and (3) that the order is made by the Court within one month after the date of conviction.

3. It must be said that Section 522 of the old Code came to be amended in 1923. Before that, the first condition mentioned above was confined to one contingency only viz. conviction of an offence attended by use of attended by show of force. The other two contingencies viz. conviction of an offence tended by show of force or by criminal intimidation were added by the 1923 amendment. This amendment was probably the result of a decision of the Calcutta High Court rendered long prior to the amendment no doubt-and may be-a decision of the Bombay High Court also. We may first reproduce the amended Section 522 showing in it by brackets the portions added by way of amendment of 1923.

522. (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) older (the person dispossessed) to be restored to the possession of the same.

(2) No such order shall prejudice any right or interest to or in such immovable property which any person may be able to establish in civil suit.

[(3) An order under this section may be made by any Court of appeal, confirmation, reference or revision.)]

In Srihari Shome v. Lal Khan V, Calcutta Weekly Notes, 250, a Division Bench of the Calcutta High Court held that the unamended Section 522 applied only if the dispossession was by actual use of criminal force, and not merely by show of such force. While interpreting the phrase 'an offence attended by criminal force' occurring in Section 522(1) before its amendment, another Division Bench of Calcutta High Court in Ramchandra Boral v. Jityandria XXV, Indian Law Reports Calcutta, 434 held that this phrase means an offence of which criminal force forms an ingredient. It may be mentioned at this stage that this interpretation of the aforesaid phrase by the Calcutta High Court was accepted by the Bombay High Court in Narayan Govind v. Visaji XXIII I.L.R., Bombay, 494. It was also a case arising under Section 522 before its amendment. Ranade, J, speaking for himself and his learned colleague stated at page 501, referring to the aforesaid Calcutta decision that the words 'offence attended by criminal force' mean an offence of which criminal force is an ingredient. He further observed that mere show of criminal force will not suffice to satisfy the requirements of the section. As these two decisions stood prior to the amendment of 1923, dispossession of the rightful owner entitled to possession brought about by an act of trespass committed in his absence would not justify an order under Section 522, because the offence was not committed by use of criminal force in the sense that criminal force was never an ingredient of the offence of criminal trespass as defined by Section 441 of the Indian Penal Code. Even prior to 1923, criminal force was separately defined; and certain offences having criminal force as their ingredient were made punishable, such as Sections 352 to 358 (both inclusive). Therefore, on the basis of this interpretation of the provisions of Section 522 in which the Legislature used the words 'criminal force' only and did not use the words 'show of force or by criminal intimidation', a trespasser could silently walk into the property of another even by breaking open the lock in the absence of a rightful person in possession and can hold possession of that property. The rightful owner even by getting the conviction of that person of the offence of criminal trespass cannot get back possession under Section 522. Possibly this defect was noticed as a result of the afore said judgments of the Calcutta and Bombay High Court; and it was remedied by the Legislature by adding the words 'show of force or by criminal intimidation.' It is after the amendment of Section 522 after the addition of these words in 1923 that the words 'attended by' have assumed material significance. The Legislature wanted to bring in a convicted offender who even by show of force, has dispossessed another person of his immovable property. Similarly, by adding the words 'by criminal intimidation' the offence of trespass was also sought to be covered, because the definition as contained in Section 441 of the Indian Penal Code contemplates, inter alia 'intent to intimidate' as a necessary ingredient of the offence amending this provision, the Legislature was certainly, widening its original scope as interpreted by the Calcutta and Bombay High Courts. In this changed situation, therefore, it would not be correct, legal and proper to bind ourselves to the interpretation put upon the words 'an offence attended by criminal force' occurring in Section 522 prior to the amendment of 1923. As the Legislature widened the scope of Section 522, the words 'attended by' occurring in that provision must, of necessity, receive a wider interpretation. The narrow interpretation put upon it by the Calcutta and Bombay High Courts that criminal force must be an ingredient of the offence of which accused is convicted, would not survive now as a result of the subsequent amendment making the provision of Section 522 wider. It is in this sense that we may say that the view of the Division Bench of the Bombay High Court in Narayan Govind's case (supra) does not hold the field after the amendment of 1923. These words 'attended by' occurring in the amended provision of Section 522(1) came up for interpretation before a Division Bench of the Allahabad High Court in Mahabir v. Rex A.I.R. 1949 Allahabad 228, The Division Bench speaking through Wanchoo, J. (as he then was) stated in paragraph 7 as under:

In our opinion criminal force or show of force or criminal intimidation as mentioned in this section need not necessarily be an ingredient of the offence at all. The words 'attended by' should include an act done simultaneously with or immediately after another act. We speak of evil consequences attending a course of conduct. There the evil consequences follow the course of conduct. So, if the commission of an offence is immediately or shortly after followed by force or show of force or criminal intimidation the case will be covered by this section.

Following the aforesaid Division Bench judgment, a learned Single Judge of Mysore High Court in Senappa v. Stale of Mysore A.I.R. 1960 Mysore 24 also stated that Section 522 does not require that force or show of force or intimidation should necessarily be one of the ingredients of the offence of the commission of which the accused has been convicted. We must therefore start with the first proposition that the phrase 'an offence attended by criminal force or show of force or by criminal intimidation' is a phrase of wider significance and is not restricted necessarily to cases where criminal force or show offeree or criminal intimidation is an ingredient of the offence. It will include cases in which a trespasser upon immovable property succeeds in preventing the true owner from re-entering the property by criminal force or show of force or by criminal intimidation. In such a case the offence of criminal trespass can be said to have been attended by criminal force or show of force or by criminal intimidation as the case may be.

4. Then there is another question to which we must advert. That question is whether use of criminal force or show offeree or intimidation must be with reference to a person or it would also cover the use of force to a thing or property. On this point again, the Division Bench of the Allahabad High Court in Mahabir's case (supra) stated that the use of criminal force or show of force or criminal intimidation must all be with reference to a person and not with reference to property (vide paragraph. 8). This interpretation laid down by the Allahabad High Court was adopted by a learned Single Judge, of Mysore High Court in Andanayya v. lrayya A.I.R. 1966 Mysore, 239. A learned Single Judge of Rajasthan High Court in Gordhandas v. State A.I.R. 1968 Rajasthan 241, also adopted this interpretation by observing that the words mentioned in Section 522(1) mean criminal force as applied to a person and not as applied to an inanimate object. However, we find that in a decision of this High Court, in maintaining the order of restoration of possession, a view was taken which may by some implication, strike a discordant note. This was a case where A.D. Desai J. sitting singly in Manubhai Ishverrai Trivedi v. Shantilal Ramchandra and Anr. Cri. R.A. No. 71 of 1969 decided on April 22, 1969 applied the provisions of the section to a case where all that was done was obtaining of possession by breaking open of the lock of the house of the complainant by the accused. The learned Judge made the following observations which may lead to a discordant note as a necessary consequence:

The accused in committing an offence under Section 453 of the Indian Penal Code had used force as they broke open the lock and took the possession of the premises. Thus, it is evident that the accused were convicted of an offence in which they had used force and forcibly took possession of the premises. The petitioner is, therefore, deprived of the possession of the premises by force.

There, the conviction was for the offence under Section 453 only which is an offence of lurking house trespass or house breaking. The order for restoration of possession was maintained on the basis that the lock was broken open and that is how force was used. A learned Single Judge of Madras High Court in N. Abdul Hadi v. Maju Bi 1973 Cri. L.J. 725 passed an order for restoration of possession under Section 522 of the old Code. That was a case in which possession was obtained by breaking open of a lock. The learned Judge said in paragraph 6:

When the respondents effected trespass upon the house belonging to the petitioner in his absence they clearly committed a crime of which as I have already said, they have been convicted; and they committed the crime using violence, that is to say, by breaking open the door and effecting entry there into.

We must, therefore, examine the proposition whether the use of criminal force or show of force or criminal intimidation contemplated by Section 456(1) would also include use of such force with reference to property, in cases covered by mere breaking open of lock and entering upon the property in the absence of the persons entitled to possession thereof and where no other offence is committed. This will depend on the question whether we should read these words 'criminal force or show of force or by criminal intimidation' occurring in Section 456(1), in the sense in which they have been defined in the Indian Penal Code. Section 349 of the Indian Penal Code defines 'force' and Section 350 'criminal force'. Section 349 begins with the words 'A person is said to use force to another...'. Section 350 begins with the words 'Whoever intentionally uses force to any person without that person's consent... '. The words 'Criminal intimidation' defined in Section 503 of the Indian Penal Code; and the said section begins with the words. 'Whoever threatens another with and injury to his person....' All these provisions, therefore, contemplate use of force to a person or giving of threat to a person. They do not contemplate administration of force or threat to an inanimate object or thing. Now, on this point Section 2(y) of the Code is very material. It is a definition section and Clause (y) thereof reads as under:

Words and expressions used herein and not defined but defined in the Indian Penal code have the meanings respectively assigned to them in that Code.

Of course, this definition is subject to the context to the contrary, because the definition clause starts with the words 'In this Code, unless the context otherwise requires,'. But there is nothing in the context of Section 456 of the Code which would lead us to give a different meaning to the aforesaid words used therein. Now, the learned Judges who took a different view from the decision of the Allahabad and Mysore High Courts, did not refer to the provisions of Section 2(y) of the Code as regards meaning to be given to the words and expressions used in the Code. In our opinion, therefore, the view of the Allahabad High Court on this proposition is the correct view and must be accepted. We say, with respect, that we do not agree with the different view which may necessarily arise from the aforesaid observations of A.D. Desai, J. in the unreported decision mentioned above as well as the decision of the Madras High Court in 1973 Criminal Law Journal, 725.

5. In the present case, house trespass was committed by breaking open of the lock. Therefore, if we had agreed with the aforesaid view of the Madras High Court, in N. Abdul Hadi's case (supra) that in itself would have been sufficient to justify the order under Section 456 in the present case without examining the further question whether the complainant became dispossessed subsequently when she went to the premises and asked the accused to go out. But, in the view that we have taken we have as of necessity, to examine the further question calling for the interpretation of the words 'attended by criminal force or show of force or by criminal intimidation' and the meaning to be given to the phrase 'it appears to the Court that, by such force or show of force or intimidation, any person has been dispossessed of any immovable property.' It must at once be said that the preponderance of opinion of High Courts on this question is in favour of the interpretation put by the Division Bench of the Allahabad High Court in Mahabir's case (supra). The said interpretation as contained in paragraph 7 has been reproduced earlier by us. The other High Courts which adopted this interpretation are Patna High Court in Rajbanshi v. Chandev Jha A.I.R. 1951 Patna 307 and the Bombay High Court in Francis D'Souza v. E.A.L. Gameiro 1960 Criminal L.J 459 which was decided by a learned Single Judge prior to the bifurcation of the bigger bilingual State of Bombay into the States of Maharashtra and Gujarat. The said decision was rendered on April 24, 1959. The Mysore High Court also adopted a similar view in Andanayya's case (supra). A Division Bench of the Assam High Court Lalit Mohan v. State A.I.R. 1952 Assam 107 also took a similar view and observed that the retention of the possession by a criminal trespasser by show of criminal force amounts to factual dispossession in the eye of law for which a relief under Section 522, (of the Code) can be given when the Court thinks it justified. The scope for the contrary proposition arises from the decision rendered by Raju. J. (as he then was) in Hemaji Tarsanji v. State 2 Gujarat Law Reporter 240. In that case the accused were convicted under Sections 453 and 341 of the Indian Penal Code for having broken open the lock of the room in possession of the complainant, for having trespassed upon the said room and for having wrongfully restrained the complainant from entering the room. Inspite of these facts, the order for restoration of possession under Section 522(1) was set aside by the learned Judge by making the following observations as regards the scope of Section 522(1) of the old Code:

It is, therefore, clear that this section applies only to cases where by force or by show of force or by criminal intimidation any person has been dispossessed of any immovable property. It is not sufficient that criminal force or show of criminal force or criminal intimidation were used. To attract this section, a person must have been dispossessed of immoveable property by the use of criminal force or show of force or criminal intimidation. If criminal force had been used after possession of Immoveable property had been taken, Section 522, Criminal Procedure, Code, would not apply, in the instant case, according to the prosecution itself, possession of the room was taken by accused Nos. 2 & 3 in the absence of the complainant and his son, and threats had been used only when the complainant returned to his room and found that it was in possession of the accused. The threats or criminal intimidation or criminal force or show of criminal force were, therefore, after the dispossession and not at the time of the dispossession.

(Emphasis supplied).

The learned Judge held that there being no use of force or show of force at the time the accused broke open the lock and entered in the room, the order under Section 522 would not be justified. This judgment does not refer to the preponderance of opinion of several High Courts referred to earlier, nor does it refer to the decision of the learned Single Judge of the Bombay High Court in Francis D'Souza's case (supra), which speaking with respect, Raju, J. was bound to follow, as he was sitting singly. If he differed from that view, he should have made a reference to a larger Bench. This position of law is well-settled.

6. As against the preponderance of judicial opinion in favour of the interpretation of Section 522(1) by the Allahabad High Court in Mahabir's case (supra) no decision of any other High Court taking a contrary view or similar view as that taken by Raju, J. was pointed out.

7. However, it has been contended on behalf of accused before us that the view of Raju, J. which is implicit in (he observations reproduced above correct view of the provisions of Section 456. We would, therefore, in the first instance try to ascertain the scope of Section 456 independently of the preponderance of opinion in favour of the view which is contrary to the view emerging from the observations of Raju, J.

8. In the first instance, it is clear that the provisions of Section 522(1) of the old Code as a result of the amendment of 1923 gave a wider power to the Court, the Legislative intent being to see that the person who is convicted of an offence attended by criminal force or show of force or by criminal intimidation, does not remain upon the property excluding thereby the person dispossessed by such use of force of intimidation. Secondly, Section 456 as its very terms show, is not confined to cases where offence of trespass only is committed. It generally speaks of an offence attended by criminal force or show of force or by criminal intimidation. Therefore, first of the two conditions calling for the interpretation in the present case need not necessarily be confined to an offence of criminal trespass only. When the section was thus framed in a wider language, we must put a purposeful interpretation on it which would give wider power to the Court against a convicted person who would not part with possession notwithstanding his conviction, and will thus deprive the rightful person of possession of his property and drive him to a Court of law by way of a separate action. The learned Single Judge of Mysore High Court in Senappa's case (supra) stated the object of Section 522 of the old Code in the following words in paragraph (9):.the object of this section is to prevent any person gaining wrongful possession of the land by his own unlawful and forcible acts. In other words the principle of civil law that a person in peaceful possession of land should be protected against dispossession by requiring whoever claims the right to possession 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 Section 522 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.

We respectfully agree with these observations as regards object of his provision. Therefore, this provision has been enacted with a benevolent object and must receive a purposeful interpretation.

9. In the first condition, the Legislature has used the words 'attended by' while speaking of criminal force or show of force or criminal intimidation. It is obvious, therefore, that the use of criminal force or show of force or criminal intimidation may accompany an offence and need not necessarily form an ingredient of the offence. Thus, for instance, when a person is convicted under Section 341 of the Indian Penal Code for wrongful restraint, the wrongful restraint may have been exercised by use of criminal force or show of force or by criminal intimidation. If, therefore, a person rightfully entitled to possession of property upon which another person has entered goes to that property to tell the person to walk out of the property or tries as soon as he comes to know of the trespass, to re-enter the property without committing any breach of peace and if he is wrongfully restrained by use of criminal force or show of force or criminal intimidation, we have a case in which an offence under Section 341 is accompanied by or attended by criminal force or show of force or by criminal intimidation. Similarly, such a person when he goes to re-enter the property or to tell the trespasser to go out, is beaten, the offence can be said to be accompanied by criminal force or show of force or criminal intimidation. Thus it is clear that the first condition does not require that criminal force or show of force or criminal intimidation must necessarily form an ingredient of the offence.

10. This is so far as the first condition is concerned and that brings us to the second condition. It speaks of dispossession of a person of any immovable property by the use of criminal force or show of force or by criminal intimidation. The question is what is meant by the word 'dispossessed' occurring in the second condition? Does it cover the case of a person upon whose property another person has entered and committed trespass and who goes to the property and tells the trespasser to go out in order to re-enter upon the property peacefully and who is prevented from doing so by use of criminal force or show of force or by criminal intimidation? It is clear that in such a case the trespasser has committed an offence under Section 341 of the Indian Penal Code; and when the trespasser is convicted of that offence which has been accompanied by criminal force, show of force or by criminal intimidation, can it not be said that the person on whose property trespass is committed has been dispossessed of such property by criminal force or show of force or criminal intimidation? Can it be said in such a case that the aggrieved person was not dispossessed even though his attempt to re-enter the property was foiled by use of criminal force or show of force or by criminal intimidation and that he was dispossessed at an earlier stage by the mere entry upon his property in his absence. If we take mere entry upon property by the trespasser as amounting to dispossession the consequence of such an interpretation would be startling. To take an example, you lock your house and go out for a stroll; on your return after one hour, you find that another person has broken open the lock and entered upon your property. If you are prevented from re-entering by that person by use of criminal force or show of force or criminal intimidation, can it be said that you are not dispossessed at that stage but were dispossessed at the very point of time when in your absence the intruder bad broken open the lock? In such a case even if you succeed in establishing your case in a criminal court, can it be said that the Court is powerless to restore possession to you under Section 456, on a supposed notion that as soon as trespass took place you were dispossessed? Can it be said that Section 456 was not designed for protection of possession of persons like you? If such a view is possible, every person going out for a stroll after locking his house will have to put a watchman at the house, because the provisions contained in Section 456 will not come to his aid. It can be said without any hesitation that Section 456 was designed with a view to see that in such case a person rightfully in possession is not driven to play a second innings on the same ground, incur expenses and be on the streets till the second round of litigation is finally decided.

11. The fundamental concept of jurisprudence must be borne in mind in this connection. Every person in possession of property who has a right to possession thereof and upon which another person has committed trespass is entitled to go to his own property and try to reenter the same by peaceful means, i.e. in a manner which would not result in breach of peace. If his re-entry is prevented by use of criminal force or show of force or by criminal intimidation, it must be said that the person who had juridical possession of the property vesting in him till then, has been dispossessed of that property. This is because after the prevention, the person rightfully entitled to possession of the property cannot force his entry into the property which would result in breach of peace. Such a person goes to a criminal court having found that two offences have been committed, one of criminal trespass and the other of wrongful restraint and succeeds in securing conviction of the trespasser for these two offences. If such a person shows to the Court that he is dispossessed of the property by use of criminal force or show of force or by criminal intimidation, there is no reason why the Court should refuse him the relief under Section 456 merely on the assumed notion that as soon as the initial trespass was committed, the complainant before the Court was dispossessed of the immovable property. It is common knowledge that the offence of trespass consists of entry into or upon property in possession of another. As soon as that entry is made with the requisite intent, the offence is committed irrespective of the question whether the trespasser has remained upon the property after the entry or has walked out without claiming possession of the property. We must not, therefore, import necessarily the element of taking possession in every act of trespass. Taking of possession, wrongful as it is, must be treated independently of the act of trespass while interpreting the provisions of Section 456. Now, a trespasser having entered upon the property in possession of another, does not deprive that another person of his juridical possession, nor his right to re-enter the property. So long as that other person has a right to possession, juridical possession being vested in him, something further is required to show that he has been dispossessed. We cannot overlook the use of the word 'dispossessed' by the Legislature, which is a word of positive import. It is not synonymous with 'out of possession' only. Something more is required in order to make a person who is merely out of possession dispossessed. If such a person who is out of possession remains passive for a long time and does not exercise his right of re-entry soon after he comes to know of the trespass, he can be said to have been dispossessed as a result of his inaction. If such a person, on the contrary, exercises his right to re-enter upon the property in a peaceful manner, but in doing so, is resisted and his re-entry is made impossible by use of criminal force or show of force or criminal intimidation, it is at that stage that the said person can be said to be dispossessed of the property. Similarly, in another case, if a person upon whose property another person has committed trespass, instead of exercising his right to re-enter upon the property by telling the trespasser to go out goes to the Court and files a complaint of trespass, it is clear that he is a person who is not prepared to exercise his right of re-entry by peaceful means and is, dispossessed but not by use of criminal force or show of force or criminal intimidation. The immediate reaction of a person in possession of the property and having a right to remain in possession thereof, when he finds that another person had entered upon that property, is to go and remonstrate and see that other person walks out of the property. If at that stage he is met with criminal force or show of force or criminal intimidation, it is obvious that he cannot indulge in a duel and has to resort to a Court of law. To say that such a person who is prevented from re-entering his property by criminal force or show of force or by criminal intimidation has already been dispossessed of the property by mere entry upon that property by the offender in his absence, will be to set at naught the benevolent object behind the enactment of Section 456 of the Code.

12. Therefore, having examined the provisions of the section unaided by the decisions of the High Courts mentioned earlier, we find ourselves in complete agreement with the view of the Division Bench of the Allahabad High Court that dispossession does not become complete till the complainant appears on the scene and has to go away inspite of his protest because his entry has been prevented by use of criminal force or show of force or by criminal intimidation. It is at that stage that is possession would become complete. We also endorse with respect, the view of Tarkunde, J. in Francis D'Souza's case (supra) expressed in the following observations in paragraph 2 of the judgment:

A person in juridical possession of any immovable 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 constitutes 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 relinquished the possession which he had physically lost, then he can property held to be dispossessed.

(Emphasis supplied).

With great respect, we would only qualify this observation by reading the words 'after entry upon his property by the trespasser' in place of the underlined words 'after his physical dispossession' in the emphasized portion.

13. It is contended on behalf of the accused that the word 'dispossessed' must be given only the meaning of loss of actual possession; and the concept of juridical possession should not be brought into aid. This contention cannot be accepted in view of the reasons given above and in view of the purpose behind the enactment contained in Section 456. Similarly the contention that entering into possession by a trespasser of property in possession of another by itself amounts to dispossession of the person originally in possession also cannot be accepted. Lastly, it was contended that in Francis D'Souza's case (supra) earlier judgment of the Bombay High Court in Narayan Govind's case was wrongly distinguished. This contention also cannot be accepted. It must be re-emphasized that in the earlier case before the Bombay High Court, there was no charge for an assault committed on the complainant, and consequently no conviction for that offence can be had. The conviction was for simple trespass only effected in the absence of the complainant. In such a case therefore, the offence of trespass of which the accused was convicted was not attended by use of criminal force. Therefore, the first condition in the Bombay decision was not satisfied and there was no question of entering into the satisfaction of the second condition.

14. In the present case, in view of the findings of the learned Magistrate reproduced above, it is clear that the offence punishable under Section 341 of the Indian Penal Code was accompanied by use of criminal force or show of force. In fact, the complainant was beaten. This was done when the complainant went to the property in order to exercise her right of re-entry and the accused prevented her from re-entering. Therefore on the findings given, both the conditions in the present case were satisfied.

14.1 In the view that we have taken of the interpretation of this provision, we say, with respect, that the proposition which may emerge from the observations of Raju, J. in Hemaji's case (supra), is not good law. Our attention was drawn to another decision of this High Court by another learned Single Judge viz. R.B. Mehta, J. (as he then was) in Kamalsing v. State III G.L.R. 993. In that case, no new proposition was laid down and the case can be distinguished on the facts thereof. In that case, possession of the property was parted with by the complainant in favour of the accused initially under a leave and license agreement and the person brought on the property under this agreement refused to vacate. On the complainant asking for possession that person caused wrongful restraint to the complainant from entering upon the property and refused to hand over possession. It is clear in the facts of that case that the complainant cannot be said to be dispossessed of the property by the action of the accused.

15. In the result, the petition must succeed; and it is allowed. The order passed by the learned City Sessions Judge in Criminal Revision Application No. 55 of 1976 is set aside; and in its place, the-order passed by the learned Chief Metropolitan Magistrate, on March 29, 1976 is restored. Rule made absolute in these terms subject to the clarification that Ahmedkhan Hajimohmedkhan, petitioner No. 5 before us, who was one of the heirs of original complainant, having expired during the pendency of this petition, possession will now be restored to the other person mentioned in the learned Magistrate's order viz. Amanullakhan Ahmedkhan.


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