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Fakirbhai Chhaganlal Vs. Ranjit Ratilal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1982CriLJ2261; (1982)2GLR718
AppellantFakirbhai Chhaganlal
RespondentRanjit Ratilal and anr.
Cases ReferredSouza v. Edward A.L. Gameiro
Excerpt:
.....aggrieved by that order of conviction as well as the order for restoration, the accused went in revision to the sessions court by filing criminal revision application no. the facts of that case also clearly show that the accused did not question their conviction and order of sentence in that revision. therefore, these facts clearly show that revision application was maintainable, and that decision was very much before the learned sessions judge and in spite of that, he could be led away in holding that the entire revision application was not maintainable. therefore, precisely, this finding of the learned additional city sessions judge, that revision was not maintainable is also not justified. this again has led him to an error because the decision of this court in case of yashinkhan..........the complainant. the case was filed for offences under sections 451, 341, 426 of the indian penal code. accused nos. 2 to 5 were acquitted of all the offences, while accused no. 1 fakirbhai was acquitted for the offences under sections 451 and 426 of the indian penal code, but he was convicted for the of* fence under section 341 of the indian penal code and sentenced to suffer simple imprisonment for one day and to pay a fine of rs. 200/-, and in default of payment of fine to undergo further simple imprisonment for 20 days.10. under the provisions of section 376(b) of the. code no appeal lies if a metropolitan magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees. therefore, as this was an order of sentence.....
Judgment:
ORDER

V.V. Bedarkar, J.

1. Both these petitions arc filed challenging the same order passed by the learned Additional City Sessions Judge, Ahmaedabad, on 27-5-1981, by which he dismissed Criminal Revision Application No. 42 of 1981, holding that the revision application does not lie. While dismissing the said revision application, though he held that revision application is not maintainable observed that point No. 2 raised by him, 'Whether the learned Metropolitan Magistrate has erred in ordering the restoration of possession (under Section 456 of the Cr. P.C.) to the complainant', does not survive for consideration, and if necessary, in the affirmative.

2. Being aggrieved by the said order of the learned Additional City Sessions Judge pertaining to point No. 2 raised by him, in the affirmative, original complainant Ranjitbhai Ratilal has come to this Court by way of Criminal Revision Application No. 449 of 1981, and original accused Fakirbhai Chhaganlal Bhagat, who had filed the revision application before the learned Additional City Sessions Judge, has come to this Court by way of Special Criminal Application No. 695 of 1982 with a grievance that the learned Sessions Judge has erred in holding that the revision was not maintainable.

3. So far as the grievance of original complainant Ranjitbhai Ratilal in the revision petition is concerned, I must say that it is quite justified. If the Court comes to the conclusion that it has no jurisdiction to hear a particular matter, it is not open for that Court to give a finding on a particular disputable point wherein the party against whom that finding is given has no scope to approach any higher Court except by way of present type of revision petition with a request to expunge the finding. It is, therefore, necessary that when a Court is having no jurisdiction to any particular type of proceeding, it should desist from giving a finding on a particular disputable point. If the matter would have been this much, I would have allowed Criminal Revn. Appln. No. 449 of 1981. But the matter does not rest here.

4. Likewise, I also find that the grievance of Fakirbhai Chhaganlal Bhagat (original accused) who has come by way of Special Criminal Application No. 695 of 1982, is also justified. The learned Additional City Sessions Judge has committed a mistake in holding that the revision was not maintainable.

5. In order to consider the maintainability or otherwise of the revision petition, it seems, the learned Sessions Judge merely considered that the revision application would not be maintainable since appeal would lie under Section 454 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') and, therefore, he concluded that as under the provisions of Sections 399 and 401(4) of the Code where an appeal lies, and no appeal is brought, no proceeding by way of revision would be entertained at the instance of a party who could have appealed.

6. Mr. K. B. Padia, learned Advocate appearing on behalf of original accused Fakirbhai Chhaganbhai Bhagat in both the matters, rightly drew my attention to the provision of Section 454 of the Code which is as follows:

454. (1) Any person aggrieved by an order made by a Court under Section 452 or Section 453, may appeal against it to the Court to which appeals ordinarily lie from convictions by the former Court.

(2) On such appeal, the appellate Court may direct the order to be stayed pending disposal of the appeal, or may modify, alter or annul the order and make any further orders that may be just.

(3) The powers referred to in Sub-section (2) may also be exercised by a Court of appeal, confirmation or revision while dealing with the case in which the order referred to in Sub-section (1) was made.

Now, though under this Section 454 of the Code no mention is made of Section 456 of the Code, provisions of Section 456 are made applicable to Section 454. Section 456 is as follows:

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 to 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 or 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.

It must be noted that the main dispute before me is on the strength of the provision of Sub-section (1) of Section 456 of the Code, as to whether the offence for which the original accused was convicted was an offence attended by criminal force or show of force or by criminal intimidation. I shall discuss that aspect at a later stage.

7. In Section 456(3) of the Code there is a provision that where an order has been made under Sub-section (1) (i.e. passing of an order of restoration of possession), the provisions of Section 454 of the Code shall apply in relation thereto as they apply in relation to an order under Section 453. Under Sub-section (3) of Section 454 of the Code, powers referred to in Sub-section (2) thereof may be exercised by a Court of appeal, confirmation or revision while dealing with the case in which the order referred to in Sub-section (1) of Section 454 of the Code has been made.

8. Now, under Sub-section (1) of Section 454 of the Code, an appeal is provided against the orders under Section 452 or Section 453 of the Code. Under Sub-section (2) of Section 454 of the Code the Appellate Court has power to direct the order to be stayed pending disposal of the appeal and also to modify, alter or annul the order and make any further orders that may be just. Therefore, under Sub-section (3) of Section 454 of the Code there is power with the Court exercising the jurisdiction of appeal, confirmation or revisional Court to pass an order under Sub-section (2) of Section 454 of the Code.

9. It is not in dispute that the Sessions Court was exercising the powers of a revisional Court. It should be noted that so far as the facts are concerned, complaint was filed by Ranjitbhai Ratilal against some five persons. After hearing the case, the learned Metropolitan Magistrate, 5th Court Ahmedabad, acquitted four persons, but convicted original accused Fakirbhai, who is the landlord of the complainant. The case was filed for offences under Sections 451, 341, 426 of the Indian Penal Code. Accused Nos. 2 to 5 were acquitted of all the offences, while accused No. 1 Fakirbhai was acquitted for the offences under Sections 451 and 426 of the Indian Penal Code, but he was convicted for the of* fence under Section 341 of the Indian Penal Code and sentenced to suffer simple imprisonment for one day and to pay a fine of Rs. 200/-, and in default of payment of fine to undergo further simple imprisonment for 20 days.

10. Under the provisions of Section 376(b) of the. Code no appeal lies if a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees. Therefore, as this was an order of sentence passed by the learned Metropolitan Magistrate, appeal did not lie against the order of conviction and sentence, but revision was permissible and, therefore, revision application was filed. The entire revision application was filed in a composite way against the order of conviction and sentence as well as against the order of restoration of possession because after the pronouncement of order of sentence, the learned Metropolitan Magistrate also passed the final order by the last line that the complainant should be handed over possession of Census No. 1420/1, which was the property in dispute.

11. The learned Additional City Sessions Judge also in the initial introduction of facts has specifically observed that the revision application is directed against the conviction of Fakirbhai Chhaganlal Bhagat (original accused) under Section 341 of the Indian Penal Code and the order of restoration of possession under Section 456 of the Code. Therefore, the revision application was maintainable because it was a revision against the order of conviction and sentence. At the time of argument before the learned Sessions Judge, the point of' conviction and sentence was not pressed, but only the point of restoration of possession was pressed. However, as the order of conviction and sentence was not pressed, the learned Sessions Judge was persuaded to believe that now the revision would not lie. Even though I am going to refer to the decision of this Court in Yashinkhan Ahmedkhan v. Hushanbhai Rajabbhai (1978) 19 Guj LR 175 in details at a later stage. I must observe that that decision was cited before the learned Sessions Judge also and if he would have applied his mind to the facts of that case, he would have known that such a revision application would be maintainable even after the Advocate for the accused did not press the point for conviction and sentence of the accused.

12. The facts in the case of Yashinkhan (supra) were, that an order was passed by the Metropolitan Magistrate restoring the possession to the original complainant under Section 456 of the Code. As per the facts mentioned in para 2 or that case, being aggrieved by that order of conviction as well as the order for restoration, the accused went in revision to the Sessions Court by filing Criminal Revision Application No. 55 of 1976. In that case the learned City Sessions Judge by his order dated 20-9-1976 allowed that revisional application in so far as the order for restoration of possession passed by the learned Magistrate rate under Section 456 of the Code war concerned. The facts of that case also clearly show that the accused did not question their conviction and order of sentence in that revision. Still, however, that revision was entertained and the learned City Sessions Judge set aside the order of restoration. Therefore, these facts clearly show that revision application was maintainable, and that decision was very much before the learned Sessions Judge and in spite of that, he could be led away in holding that the entire revision application was not maintainable.

13. It should be noted that under Section 454(3) of the Code, read together with Section 454(2) & Section 456(3) of the Code, power to modify, alter or annul the order under Sub-section (1) of Section 456 of the Code is there to the Court who is exercising the power of revision while dealing with the case in which the order referred to in Sub-section (1) of Section 454 of the. Code was made, meaning thereby, even under Section 456(1) of the Code by implication as per the provisions of Sub-section (3) of Section 456 of the Code. Therefore, the Sessions Court being a Court of revision, had the jurisdiction to modify, alter or annul the order passed under Section 456(1) of the Code, and when a composite revision application was filed, the Court had jurisdiction to consider the question of restoration of possession also in that revision application. Therefore, precisely, this finding of the learned Additional City Sessions Judge, that revision was not maintainable is also not justified.

14. In the impugned order at one stage by considering the decision in case of Yashinkhan 1978-19 Guj LR 175 (supra) in para 8, the learned Sessions judge rightly considered that in that decision it has been held that dispossession does not become complete till the complainant appears on the scene and has to go away in spite of his protest because his entry has been prevented by use of criminal force, show of force or criminal intimidation. He also observed that it has been further held that it is at this stage that the dispossession would become complete. Then he also considered the decision of this Court in Criminal Revn, Appln. No. 466 of 1979 reported in (1981) 22 Guj LR 374, which followed the case of Yasinkhan (supra). Still, however, in para 9, again he was led away to believe that at the time of the incident complainant was not present, and it appears from the deposition that threats were given by the accused not at the time of committing trespass or dispossessing the accused, but thereafter. This again has led him to an error because the decision of this Court in case of Yashinkhan (supra) clearly shows that the real dispossession will be at the time when threats are given or complainant is restrained when he actually goes after the first act of trespass is committed. In Yashinkhan's case (supra) it has been specifically held, disagreeing with the observations of this Court in Hemaji Tarsanji v. State (1961) 2 Guj LR 240, and Manubhai Ishverrai Trivedi v. Shantilal Ram-chandra, Criminal Revn. Appln. No. 71 of 1969, decided on 22-4-1969, that trespasser preventing true owner from re-entering property will amount to use of criminal force, etc., (use of force) should be against a person and not against property. A person can be said to be dispossessed from the time when he is 'restricted' from re-entering the property. The offence of wrongful restraint by criminal force, etc., can be said to be committed when such restriction is made, and dispossession does not start from the time the trespasser takes the possession. The learned Additional City Sessions Judge, in para 9, while making the above referred observations put 'dispossession' and 'trespass' on the same footing, which is not correct, as held by this Court in Yashinkhan's case (supra), The facts before this Court in Yashinkhan's case were, that one Roshanbibi (complainant) had obtained, possession of the property in execution of the decree on 18-4-1973. She remained in possession thereafter, but on 4-3-1974, when the property which was a house was locked, was entered upon by opponents Nos. 1 and 2 in that case (who were the accused in that case). 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. Of course, it was after the actual trespass took place. Still, however, this Court held that mere dispossession would be when she was prevented,

15. In Yashinkhan's case 1978-19 Guj LR 175 (supra) this Court considered the decision of the Bombay High Court in Francis D'Souza v. Edward A.L. Gameiro AIR 1960 Bom 139 : 1960 Cri LJ 459, wherein the complainant had locked and left the room on 16-1-1958, and came to know for the first time on 22-2-1958 that the petitioner (original accused) had broken open the lock and occupied the room. According to the Bombay High Court, offence of wrongful restraint took place on the next day, i.e., on 23-2-1958, when the complainant tried lo enter the room but was obstructed by the petitioner from doing so. Thereafter, the Bombay High Court held that 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 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 relinquished the possession which he had physically lost, then he can properly be held to be dispossessed. This shows that dispossession would occur not at the time when simple trespass is committed, but at the time when the original person in possession attempts to effect his own entry and at that time he is restrained, then that would be dispossession.

16. to 19. x x x x x x x x xx

20. In the result, therefore, both these petitions Criminal Revision Application No. 449 of 1981 and Special Criminal Application No. 695 of 1982 are allowed. The orders of both the Courts below are set aside, and the matter is sent back to the learned Metropolitan Magistrate, 5th Court, Ahmedabad, to decide the matter afresh on the evidence already led after hearing the arguments of the parties, and then come to the conclusion whether ingredients of Section 456(1) of the Code are established even if conviction of original accused No. 1 Fakirbhai Chhaganlal Bhagat is confirmed. Rule issued in each of the petitions is made absolute.


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