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Hemaji Tarsanji and anr. Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1961)2GLR240
AppellantHemaji Tarsanji and anr.
RespondentThe State and ors.
Excerpt:
- .....possession of his room. therefore, according to the learned sessions judge, this is a case of criminal force being used and also criminal intimidation. therefore, according to the learned sessions judge the case tell under section 522 criminal procedure code. he therefore ordered thai possession of room no. 21 should be handed over to the complainants son. sub-section (1) of section 522 criminal procedure code reads as follows:(1) whenever a person is convicted of an offence attended by criminal force or show of force or 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 wheal convicting such person or at any lime within one month from.....
Judgment:

V.B. Raju, J.

1. In this Criminal revision application, it is urged that the order passed by the learned Sessions Judge of Ahmedabad under Section 522, Criminal Procedure Code, is erroneous and should be set aside. Accused Nos. 2 and 3, who were the servants of accused No. 1, were convicted under Sections 453 and 341, Indian Penal Code.

2. The prosecution case was that on 21-5-59, the complainant Rambhai closed his room No. 21 and went to his son, who was at the College. In his absence, according to the prosecution, the accused broke open the lock of the room and took possession of it, and when the complainant returned, he saw that the lock of his room had been broken open and accused Nos. 2 and 3 were removing household goods from the room and throwing them outside in verandah. When the complainant asked them why they were throwing the goods, the complainant was threatened with violence. He filed a complaint and the prosecution ended in the conviction of accused Nos. 2 and 3 under Sections 453 and 341, I.P. Code, for having broken open the lock of the room and for having wrongfully restrained the complainant from entering his room. The learned Sessions Judge held that accused Nos. 2 and 3 had taken the law into their own hands and threw out the goods, and when the complainant arrived he was threatened and obstructed in taking possession of his room. Therefore, according to the learned Sessions Judge, this is a case of criminal force being used and also criminal intimidation. Therefore, according to the learned Sessions Judge the case tell under Section 522 Criminal Procedure Code. He therefore ordered thai possession of room No. 21 should be handed over to the complainants son. Sub-section (1) of Section 522 Criminal Procedure Code reads as follows:

(1) Whenever a person is convicted of an offence attended by criminal force or show of force or 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 wheal convicting such person or at any lime within one month from the date of the conviction order the person dispossessed to be restored to the possession of the same.

3. 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 immovable property by the use of criminal force or show of force or criminal intimidation. If criminal force had been used after possession of immovable 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 and 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.

4. The learned Government Pleader Mr. Choksi has contended that it must be held that the complainant returned while the act of taking possession was still going on. His contention cannot be accepted. According to the prosecution the accused broke open the lock of the room and entered the room in the absence of the complainant and his son and at the time when the accused broke open the lock of the room and took possession of the property there was no use of force or show of force or criminal intimidation. In these circumstances Section 522 Criminal Procedure Code would not apply because the criminal force or criminal intimidation if any were subsequent to the dispossession of the property. The order of the learned Sessions Judge ordering that possession of the room should be restored to the complainants son is therefore set aside and the revision application is allowed.


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