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Kamalasing Sitalsing and ors. Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR993
AppellantKamalasing Sitalsing and ors.
RespondentThe State of Gujarat and anr.
Cases ReferredNarayan v. Visaji
Excerpt:
- - against this order of conviction and sentence as well as the order under section 522(1) gr. there was a revision application before the learned sessions judge ahmedabad who confirmed both the orders of conviction and sentence as well as the order under section 522(1) cr. against the order of conviction and sentence as well as the order under section 522(1) a revision application was filed before the learned sessions judge ahmedabad. the learned sessions judge ahmedabad dismissed the revision application both in regard to the sentence and conviction of the petitioners as well as in regard to the order under section 522(1) cr. (1) that the offence of which the accused is convicted must be an offence attended by criminal force and (2) that the court must be satisfied that the.....r.b. mekta, j.1. this revision application has been filed by the five petitioners who were charged before the judicial magistrate first class sixth court ahmedabad for offences under sections 341 504 and 506 of the indian penal code. accused nos. 1 to 4 were convicted under section 341 and section 504 i.p.c. and accused no. 5 was convicted under sections 341 and 504 read with section 114 i.p.c. accused no. 1 was sentenced to pay a fine of rs. 100/- in default to suffer s.i. for 7 days; accused nos. 2 3 and 4 were each sentenced to pay a fine of rs. 25/- in default to suffer section i. for 5 days for the offence under section 341 i.p.c. and accused no. 5 was also sentenced to pay a fine of rs. 25/- in default to suffer section i. for 5 days under section 341 read with section 114 i.p.c. no.....
Judgment:

R.B. Mekta, J.

1. This revision application has been filed by the five petitioners who were charged before the Judicial Magistrate First Class Sixth Court Ahmedabad for offences under Sections 341 504 and 506 of the Indian Penal Code. Accused Nos. 1 to 4 were convicted under Section 341 and Section 504 I.P.C. and accused No. 5 was convicted under Sections 341 and 504 read with Section 114 I.P.C. Accused No. 1 was sentenced to pay a fine of Rs. 100/- in default to suffer S.I. for 7 days; accused Nos. 2 3 and 4 were each sentenced to pay a fine of Rs. 25/- in default to suffer Section I. for 5 days for the offence under Section 341 I.P.C. and accused No. 5 was also sentenced to pay a fine of Rs. 25/- in default to suffer Section I. for 5 days under Section 341 read with Section 114 I.P.C. No seperate sentences were passed against any of the accused under Section 504 I.P.C. The learned Magistrate also passed an order under Section 522(1) of the Criminal Procedure Code against accused No I to hand over the possession of the premises in dispute to the complainant Ramnandan Ramharakh. Against this order of conviction and sentence as well as the order under Section 522(1) Gr.P.C. there was a revision application before the learned Sessions Judge Ahmedabad who confirmed both the orders of conviction and sentence as well as the order under Section 522(1) Cr.P.C. and dismissed the revision application. It is against this order of the learned Sessions Judge that the present revision application has been filed.

In this revision application so far as the question of conviction and sentence is concerned the learned Counsel for the petitioners Mr. D.K. Shah has not pressed this question before this Court as the same is a pure question of fact and depends on the appreciation of evidence. The conviction and sentence on the petitioners will therefore stand. Mr. Shah has strongly contended that the order passed by the learned Magistrate under Section 522(1) is incorrect illegal and erroneous and not justified on the facts of this case and that therefore it should be set aside.

The brief facts leading to this dispute are as follows: The complainant Ramnandan Ramharakh who is a mill hand was residing as a tenant in a room in Dr. Manubhais Chawl since more than 15 years. He was serving in Anant Mills. The complainant took leave of absence from the Anant Mills to go to his native place and he and his family members left for their native place on the 16 May 1959. The complaint had taken leave of absense for the period beginning from 16th May 1959 to 17th June 1959. Later on however he extended his leave up to 31st July 1959. Before the complainant left for his native place he gave leave and licence to the petitioner No. 1 at the request of the petitioner No. 1 to occupy his premises. This leave and licence was given either on the 15th or 16th of May 1959 but nothing turns on the exact date of giving this leave and licence. After the complainant left petitioner No. 1 along with petitioner Nos. 2 3 and 4 occupied the premises in question. Petitioner No. 2 is the wife of petitioner No. 1 and petitioners Nos. 3 and 4 are the brothers of petitioner No. 1 and petitioner No. 5 is the maternal uncle of petitioner No. 1 and he has been joined as a co-accused as it was alleged that he was a party to the wrongful restraint caused to the complainant. The complainant returned to Ahmedabad from his leave in August 1959 and at that time petitioners 1, 2, 3 and 4 were naturally found in occupation of his room as a result of the leave and licence granted by the complainant the complainant after his return asked for the possession of the room from the petitioners. It appears that the petitioners declined to give possession and set up a case of sub-tenancy. This dispute was referred by the complainant to the caste Panchayat of the complainant and the petitioners in January 1960 The decision of the Panchayat which was given on 12th January 1960 was to the effect that the first petitioner should hand over premises in question to the complainant within 15 days from the 12th January 1960 This decision of the Panchayat was accepted by the complainant. At the end of 15 days the complainant went to take possession from the first two petitioners. The first petitioner however refused to vacate and he intimidated and threatened the complainant that he would not vacate as he was there in his right of sub-tenancy. On intimidation and threats given by the first petitioner the complainant left the first petitioner. Thereafter again on 12th February 1960 the complainant went to the first petitioner and asked for possession of the room in question. At this time the complainant was actually accompanied by two members of the Panchayat on the complainant asking for possession the petitioner caused wrongful restraint to the complainant from entering the room and refused to hand over possession of the room to the complainant. On the next day i.e. on 13th February 1960 the complainant filed the present complaint as a result of which the five petitioners were convicted and sentenced as mentioned above and the learned Magistrate also passed an order under Section 522(1) Cr.P.C. against the first petitioner that the possession of the room in question be restored to the complainant. Against the order of conviction and sentence as well as the order under Section 522(1) a revision application was filed before the learned Sessions Judge Ahmedabad. The learned Sessions Judge Ahmedabad dismissed the revision application both in regard to the sentence and conviction of the petitioners as well as in regard to the order under Section 522(1) Cr.P.C. It is against this order of the learned Sessions Judge Ahmedabad that this revision application has been preferred to this Court.

As stated earlier Mr. Shah has not challenged the order of conviction and sentence; but he has seriously challenged the order of the learned Magistrate under Section 522(1) Cr.P.C. by which the first petitioner was ordered to restore possession of the room to the complainant.

Mr. A.D. Desai the learned Assistant Government Pleader who appears for the State supports Mr. Shah in so far as Mr. Shahs contention in regard to the validity of the order under Section 522(1) Cr.P.C. is concerned.. ... ... ... ... ...

Now coming to the point of illegality and impropriety of the order under Section 522(1) of the Cr.P.C. asking the first petitioner to restore possession of the room to the complainant Mr. Shah for the petitioners has urged that the learned Magistrate has erred in passing the order under Section 522 Cr.P.C. in this case. It is also contended that the learned Sessions Judge has also seriously erred in not setting aside the order under Section 522(1) Cr.P.C. Before proceeding further it is necessary to refer to the provisions of Section 522(1) which are as follows:

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 immoveable 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 order the person dispossessed to be restored to the possession of the same.

2. It was contended by Mr. Shah that in this case on the facts which have been found by the learned Magistrate and which have been accepted by the learned Sessions Judge it was clear that the complainant was not dispossessed by any force or show of force or criminal intimidation accompanied by the commission of any offence. It was said by Mr. Shah that in this case the complainant handed over possession of the room in question to the first-petitioner on the 15th or 16th May 1959 as a licensee. Therefore in this case the dispossession of the complainant was a voluntary act of the complainant viz. the complainants leave and licence granted to the First petitioner. Mr. Shah said that therefore it cannot be said that when the first petitioner refused to hand over possession to the complainant on 12th February 1960 when the complainant went to him to demand possession the complainant was dispossessed by any criminal force or show of force or by criminal intimidation for the purpose of dispossessing the complainant. Now the learned Magistrate did not accept the defence story of sub-letting and convicted the petitioners for the offence of wrongful restraint under Section 341. The learned Magistrate also came to the conclusion that on 13th February 1960 the petitioners did use criminal force or there was show of force by the petitioners. At the same time what is necessary under Section 522(1) is not only that the accused should be convicted of an offence but it is also necessary that the commission of that offence is attended by criminal force or show of force or criminal intimidation and further it should appear to the Court that the person who has been wronged has been dispossessed of any immoveable property by such force or show of force or criminal intimidation. Therefore it is necessary before the Court can have resort to Section 522 that there should have been committed an offence by the accused; that offence should be attended by criminal force or show of force or criminal intimidation and further that by such force or show of force or criminal intimidation the person who is wronged must have been dispossessed of immoveable property. Now in this case as stated earlier the possession of the property was handed over by the complainant himself before or at the time of leaving for his native place to the first petitioner under his leave and licence. Therefore it was on this day that the complainant was out of possession of his room when no offence was committed by any of the petitioners much less was there any use of criminal force or show of force or criminal intimidation. If this is so there can be no question of the application of Section 522(1) Cr.P.C. in such a case. A reference may be made in this connection to the observations made by Mr. Justice Ranade in the case of Narayan Govind v. Visaji XXIII Bom. 494 at page 500 which are to the effect that the section under consideration evidently contemplates two things viz. (1) that the offence of which the accused is convicted must be an offence attended by criminal force and (2) that the Court must be satisfied that the dispossession was due to the use of such force. In this case as I have stated earlier it is quite clear that one of the essential ingredients for the application of Section 522(1) that the person wronged must have been dispossessed of his immoveable property by an offence attended by criminal force or show of force or criminal intimidation is wanting. Prima facie therefore it is difficult to sustain the order passed by the learned Magistrate against the first petitioner under Section 522(1) Cr.P.C.

Mr. Mehta has however contended that in this case the complainant had given a licence to the first petitioner and that by reason of the licence it cannot be said that the complainant was dispossessed of the room in question when he granted the leave and licence to the first petitioner to occupy the room in question. Mr. Mehta further said that the complainant accepted the decision of the Panchayat and in the result terminated the licence of the first petitioner on or about 12th January 1960 when the members of the Panchayat asked the first petitioner to vacate in 15 days time. Mr. Mehta further said that when the first petitioner refused to vacate at the end of this period of 15 days which would be somewhere about 27th January 1960 the first petitioner became a trespasser. Mr. Mehta said that even on this date even by the first petitioner becoming a trespasser the complainant was not yet dispossessed of the premises in question. Mr. Mehta said that thereafter on 12th February 1960 the complainant demanded possession from the first petitioner when the petitioners used wrongful restraint and criminal force or show of force against the complainant and that it was on the 12th of February 1960 that his client the complainant could be deemed to be dispossessed. Mr. Mehta said that a complaint was filed immediately after the 13th of February 1960. The substance of Mr. Mehtas argument was to the effect that his client was dispossessed only on the 12th of February 1960.

Mr. Mehta in this connection referred to a decision of Mr. Justice Tarkunde in Francis Dsouza v. Edward Gamerio LXI Bom. L.R. 1180. Mr. Mehta particularly relied on the following observations at page 1183 of the report:

A person in juridical possession of any immoveable 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 later 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. In the present case the complainant came to know of the trespass of the petitioner on February 22, 1958 and immediately on the next day he tried to enter the room as he was in law entitled to do. It cannot therefore be said that he was dispossessed earlier man on the occasion when the offence of wrongful restraint was committed.

Relying on this passage Mr. Mehta said that the complainant did not mentally relinquish his possession in the instant case till the 12th of February 1960 and that therefore in this case the complainant was dispossessed on the 12th of Feb. 1960 Now to appreciate the force of these observations it is necessary to know the facts of the case before Mr. Justice Tarkunde. In that case one Ramprasad Dhobi was a tenant of a room and a verandah in a certain building at Bandra. Before 1950 a woman named Marie Gonsalves was the sub-tenant of Ramprasad Dhobi. The case of the complainant Gamerio was that in 1950 he had obtained possession of those premises from Marie Gonsalves. When Marie Gonsalves was in occupation of the premises the accused and his wife and children were staying with her. It was the complainants case that when Marie Gonsalves left the place after transferring possession of the premises to him he allowed the accused and his family to occupy a portion of the verandah as his licensees on payment of compensation for use and occupation at the rate of Rs. 7/- p.m. The complainant Gamerio was married in 1955 and thereafter disputes arose between the complainant and the accused in regard to the premises. The complainant and his wife were harassed by the accused and in 1958 the complainants wife was expecting a child. Therefore to avoid harassment of the accused in that delicate condition of his wife the complainant left the premises on 16th January 1958 carrying some goods with him and having obtained some temporary accommodation from his employer. On 22nd February 1958 the complainants watchman informed the complainant that the room was entered into and occupied by the accused and his family. The complainant visited the place and found that what the watchman had said was true. So the next day on the 23rd of February 1958 the complainant again went to the room and tried to enter it but was prevented from doing so by the accused. Accordingly the complainant filed a complaint against the accused for wrongful restraint under Section 341 I.P.C. The defence of the accused was that he was a sub-tenent of the premises from Marie Gonsalves and that the complainant was his paying guest. His defence further was that after the complainant got married the accused was asking him to leave the place and therefore on 16th January 1958 the complainant left the place permanently. The accused denied that the complainant had visited the premises on 23rd February 1958 and that he was prevented from entering the room on that day. The learned Magistrate on the evidence before him convicted the accused under Section 341 I.P.C. and also passed an order under Section 522 Cr.P.C. ordering the accused to forthwith hand over to the complainant the possession of the room and the portion of the verandah where the complainant had his kitchen. The accused went in revision to the High Court and it was while dismissing the revision application that Mr. Justice Tarkunde made the above observations.

Now the observations made by Mr. Justice Tarkunde must be read in connection with the facts of the case before him. In fact Mr. Justice Tarkunde at page 1184 after referring to the case of Narayan v. Visaji XXIII Bom. 494 has observed as follows:

It is clear therefore that this decision does not come in the way of my holding that the dispossession of the complainant in the present case took place when he was wrongfully restrained from entering the room in dispute on February 23 1958.

Now it is clear from the facts which I have narrated above that in the case before Mr. Justice Tarkunde the accused actually took possession of the premises clandestinely by breaking open the lock sometime after the 16th January 1958 and before 22nd February 1958. In other words in the case before Mr. Justice Tarkunde the dispossession of the complainant was not by leave and licence of the complainant as it is in the case before me. It was on the special facts of the case before Mr. Justice Tarkunde that Mr. Justice Tarkunde said that in a case where the complainant even did not know that the accused had trespassed on his premises that there was no dispossession of the complainant till at any rate he came to know that there was actual dispossession. Therefore the observations made by Mr. Justice Tarkunde in my view with respect must be limited to the special facts of the case before him and in no way do they touch the observations made by Mr. Justice Ranade referred to above as to the essential ingredients of Section 522(1) Cr.P.C. In my view therefore the decision of Mr. Justice Tarkunde cannot assist Mr. Mehta for as I have stated earlier in the case before me the complainant was actually dispossessed as a result of his voluntary act on the 15th or 16th of May 1959 when he went to his native place giving leave and licence to the first petitioner to occupy his premises.

3. Next Mr. Mehta drew my attention to an Allahabad decision in the case of Mahabir and others Rex through Shamdhari reported in A.I.R. 1949 All. 228 which decision was referred to by Mr. Justice Tarkunde in LXI Bom. L.R. quoted above. In the case before the Allahabad High Court on 30th July 1946 the accused forcibly ploughed the plots which were in possession of the regular tenant of the said plots. On that day the tenants servant protested to the accused in regard to their forcible cultivation of the said plots but the accused did not listen to him. The next day i.e. on 31st July 1946 the complainant lodged a complaint against the accused charging them under Section 447 of the I.P.C. for having committed criminal trespass and under Section 352 I.P.C. for an assault. What the Court held was that the dispossession of the complainant in that case was not complete till he appeared on the scene and protested and had to go away on 31st July 1946. Mr. Justice Wanchoo who delivered the judgment of the Court observes as follows at page 229 of the report:

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.

In other words what the Court said was that even though the tenant was actually dispossessed on 30th July 1946 the act of dispossession was not complete till the next day i.e. on 31st July 1946 when the accused used criminal force or show of force or criminal intimidation. In other words it was held that the act of dispossession which started on the 30 of July 1946 was complete on 31st July 1946. That was the decision on the facts of the case before their Lordships. It is difficult to understand how can this case assist Mr. Mehta. In this case for the first time the accused entered on the premises illegally on 30th July and shortly thereafter i.e. on the nest day they used force to maintain that possession, the Court in these circumstances held that the dispossession could be said to be by force even though in point of time force was used subsequently i.e. on the next day after the actual illegal entry. Such a question does not arise in the instant case. For in the instant case as I have already stated earlier the complainant had himself allowed the first petitioner by his leave and licence to enter into the possession of the room in question and there was no question therefore of any dispossession of the complainant by criminal force or show of force or criminal intimidation as required under Section 522 Cr.P.C. being used at or about the time of dispossession. This case therefore also cannot assist Mr. Mehta. The decision of S.T Desai C.J. in Criminal Revision Application No. 220 of 1960 referred to earlier is also not helpful to either party in this case. It is therefore not necessary to refer to the same.

Reverting now to the argument advanced by Mr. Mehta that in this case there was dispossession on 12th February 1960 it is necessary to examine that argument for it was Mr. Mehtas contention that the first petitioner became a trespasser on the 12th of February 1960 when the accused wrongfully restrained the complainant from entering upon his premises and that prior thereto juridical possession was of the complainant. To my mind Section 522(1) Cr.P.C. deals with those cases where a person has been dispossessed of immoveable property as a result of an offence which is attended by criminal intimidation the section has reference to cases of actual physical possession The question of owner ship and title are different from the question of actual physical possession though it may be that for the decision whether there is dispossession a reference to a question of title or ownership may sometimes perhaps become necessary. It is only the question of physical dispossession which is to be considered under Section 522(1) Cr.P.C. and it is difficult to sustain the argument that when the original owner goes out of the premises and puts another man in his place in possession of the premises by his leave and licence the actual physical possession still remains with the original owner for the purpose of Section 522(1).When the original owner goes out as it has happened in this case and when he puts another man in possession with his leave and licence so far as the actual physical possession is concerned there can be little doubt that he is dispossessed of the premises. If that is so then in the instant case as I have stated earlier the complainant was dispossessed not on the 12th of February 1960 but on 15th or 16th May 1959 when he went out of possession and handed over possession to the first petitioner under his leave and licence. I am therefore unable to accept Mr. Mehtas argument that it was on 12 February 1960 when the first petitioner caused wrongful restraint that the complainant was dispossessed. This argument of Mr. Mehta has therefore no force. Next Mr. Mehta said that the licence was terminated 15 days after the 12th January 1960 i.e. by about 27th January 1960 and that it could be said that the petitioner became a trespasser on that day. But by mere trespass the complainant could not be said to be dispossessed and that the complainant was dispossessed on the 12th of February 1960. The basis of Mr. Mehtas argument is that upto 27th January 1960 the complainant was not dispossessed as according to Mr. Mehta the licensor could not be said to be dispossessed during the time that the licensee was in possession. I have already dealt with this argument earlier that for the purpose of Section 522(1) it is the actual physical possession which is to be taken into consideration and not the rights of title and ownership. It would not be correct to say as Mr. Mehta in effect says that dispossession starts only when the prior possession becomes adverse even though the prior possession was permissive. The concept of physical dispossession which is contemplated under Section 522(1) Cr.P.C. is different from the concept of a mere legal change in the character of previous possession. It would be making a confusion between these two concepts to say that the licensor could be said to be dispossessed only at the time when the licensee becomes a trespasser after the termination of the licence by continuing to remain on the licenced premises. I am therefore unable to accept this argument of Mr. Mehta that the complainant was dispossessed either on 12th February 1960 or somewhere about 27th January 1960. In my view it is impossible to escape the conclusion that the actual physical dispossession of the complainant occurred at the time when the complainant voluntarily handed over possession of his room to the first petitioner on or about 15th or 16th May 1959 when he left for his native place.

At this stage it would be necessary to refer to a decision of my learned brother Mr. Justice Raju in the case of Hemaji Tarsanji and another v. The State and Ors. II G.L.R. 240 which was referred to by Mr. Mehta. Mr. Mehta referred to the following observations of Mr. Justice Raju at page 241 with reference to Section 522(1) Cr.P.C.:

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 immoveable 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 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 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 of criminal intimidation or criminal force or show of criminal force were therefore after the dispossession and not at the time of the dispossession.

Mr. Mehta said that there was a conflict between the views expressed by Mr. Justice Tarkunde in LXI Bom. L.R. referred to earlier and the views expressed by Mr. Justice Raju as above and that it would be necessary for me to refer this matter to a Division Bench. I have already said while referring to the observations of Mr. Justice Tarkunde that the facts of that case were entirely different from the facts of the case before me and that the observations made by Mr. Justice Tarkunde in that case have no bearing to the facts of the case before me. The facts of the case before Mr. Justice Raju in II G.L.R. 240 quoted above have also no similarity or resemblance to the facts of the case before me and I do not think it necessary therefore to base my decision on the observations made by Mr. Justice Raju in the said case. In these circumstances I do not think that on the facts of this case with are clear in regard to the dispossession of the complainant it is necessary to refer the matter to a Division Bench.

4. In the circumstances as I have stated earlier on the facts of this case it is impossible to say that the complainant was dispossessed of his room by any criminal force or show of force or criminal intimidation for in this case the complainant himself handed over possession of his room to the first petitioner at the time of his leaving for his native place on or about 15th May 1959. It is not possible for me to accept the contention of Mr. Mehta that the dispossession was either on 27th January 1960 or 12th February 1960.

In these circumstances the order made by the learned Magistrate under Section 522(1) Cr.P.C against the first petitioner for restoring possession of the room in his occupation to the complainant was incorrect illegal and improper and cannot be sustained and must therefore be set aside.

The Revision Application is allowed so far as the order of the learned Magistrate passed against the first petitioner under Section 522(1) Cr.P.C. is concerned. As stated earlier the order of conviction and scnlence passed by the learned Magistrate against the petitioners has not been challenged and the same shall stand. Rule absolute accordingly.


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