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Gordhan Das Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Revn. No. 51 of 1967
Judge
Reported inAIR1968Raj241
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 423, 522 and 522(1); Indian Penal Code (IPC) - Sections 349, 350, 380 and 448
AppellantGordhan Das
RespondentState and ors.
Appellant Advocate A.K. Mathur, Assistant Government Adv.; M.M. Singhvi, Adv.
Respondent Advocate V.N. Vyas, Adv. for Non-petitioner Nos. 2 to 6
DispositionRevision dismissed
Cases ReferredUjir Sheikh v. Syed Ali Sheikh
Excerpt:
- - ; and the appellate court was perfectly right in setting aside that order. the decision in air 1951 pat 307 is of no avail to the petitioner as in that authority it has been clearly mentioned that where an order under section 522. cr......only, in default of payment of fine to undergo simple imprisonment for a period of one month. learned magistrate further directed that the house, excepting the one room, should be restored to the complainants. on an appeal taken against the above judgment, learned additional sessions judge no. 2, jodhpur, shri ratan lal shah, maintained the convictions of the accused persons under s 448, i.p.c., as also the sentence passed against the non-petitioner bhinya ram. he, however, set aside the order of restoration of the property to the complainants, holding that no such order could have been made under section 522, cr. p. c.2. aggrieved against the above finding of the appellate court, regarding setting aside the order of restoration of the property to the complainants, the present.....
Judgment:
ORDER

L.S. Mehta, J.

1. This is a revision-petition directed against the Judgment of learned Additional Sessions Judge No. 2, Jodhpur, dated November 30, 1966. Tt is alleged by the prosecution that Mst Noii wife of Bhinya Ram, non-petitioner No. 3, owned a house in Mohalla Hanumanji-ki-Bhakri, Jodhpur She possessed a title deed in her own name She needed some money. Consequently, she mortagaged the house in favour of the petitioner Gordran Das. Oswal resident of Udaimandir. Jodhpur, and his brothers. The mortgage was alleged to be anomalous Thereafter Mst. Noli executed a rent-note in favour of Gordhan Das and his brothers. Subsequently, a suit was filed by Gordhan Das and others for eviction of the property and recovery of arrears of rent A decree for ejectment and arrears of rent was passed in favour of the plaintiffs. In execution of that decree, Gordhan Das and his brothers were put in possession of the property, excepting one room, on February 6, 1964, through the process of the court After some time possession over the said room was also given to the mortgagees. The mortgagees put their locks on the various apartments.

On March 24, 1964, Gordhan Das and others kept sundry articles in the rooms. On April, 1964, Shesh Mal, brother of Gordhan Das went to the house and saw that non-petitioners Nos. 2 to 6 were living therein, after breaking open the locks put by the mortgagees. The same day first information report was lodged at the Police Station, Division B, Jodhpur, about this happening. The Police investigated the matter and put up a challan against the non-petitioners Nos. 2 to 6 for their trial under Sections 448 and 380, IPC., in the court of Munsiff-Magistrate, Jodhpur City. The case was then transferred to the court of learned Munsif-Magistrate, Jodhpur District. The accused pleaded not guilty to the charges under Sections 448 and 380, I. P. C. The prosecution evidence was then recorded. The accused pleaded that they had never been 'dispossessed of the property by the order of the court and that they were in consistent possession. The pleas of the accused were found to be false and the trial court held that the accused committed of-fence.s under Section 448, I. P. C.. by breaking open the locks of the house in dispute.

All the accused, who were convicted, were given benefit of Section 3, Probation of Offenders Act, 1958, excepting the accused Bhinya Ram, who was sentenced to pay a fine of Rs. 100/- only, in default of payment of fine to undergo simple imprisonment for a period of one month. Learned Magistrate further directed that the house, excepting the one room, should be restored to the complainants. On an appeal taken against the above judgment, learned Additional Sessions Judge No. 2, Jodhpur, Shri Ratan Lal Shah, maintained the convictions of the accused persons under S 448, I.P.C., as also the sentence passed against the non-petitioner Bhinya Ram. He, however, set aside the order of restoration of the property to the complainants, holding that no such order could have been made under Section 522, Cr. P. C.

2. Aggrieved against the above finding of the appellate court, regarding setting aside the order of restoration of the property to the complainants, the present revision petition has been filed by Gordhan Das. Contention of learned counsel for the petitioner is two-fold his first contention is that the appellate court went wrong in holding that Section 522, Cr. P. C. was not applicable to this case. His second grievance is that learned Additional Sessions Judge had no jurisdiction while hearing the appeal and maintaining the conviction of Bhinya Ram to set aside the order of restoration of the property to the complainants. Such a power, according to learned counsel, vested in the High Court and was subject to revision under Section 439, Cr. P. C., and was not subject to appeal.

3. As for the first point, learned coun-sel for the petitioner has argued that as Bhinya Ram and others broke open the lock of the house and made entry therein and as the property had already been made over to the complainants through the process of the court, it should be assumedthat the offence was attended by criminal force and as such the trial court was justified in restoring the property to the complainants. Learned counsel further argued that the appellate court wrongly interpreted the language of Sub-section (1) of Section 522, Cr. P. C., by holding that the offence was not attended by criminal force.

4. Section 522 (1). Cr. P. C., is in the terms following:

'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 of 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, order the person dispossessed to be restored to the possession of the same.'

It would follow that the offence, of which a person is convicted, must be attended by criminal force or by show of force or criminal intimidation. It is not disputed in this case that the entry into the house by the accused persons was made in the absence of the complainant. Therefore, the entry of the non-petitioners cannot be said to have been attended by criminal force. As for criminal force, the term is defined by action 350, I. P. C., as follows:

'Whoever intentionally uses force to any person, without that person's consent in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other '

In this connection, reference may also be made to the provisions of Section 349. I.PC. In that Section it is given that a person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling.

It is clear, therefore, that by the use of the words 'criminal force' in Section 522, Cr. P. C., it is intended to mean the criminal force as applied to a person and not as applied to an inanimate object. In the instant case it appears that the occurrence took place in the absence of the mortgagees or their men. Therefore, the dispossession could not be held to have been attended by any criminal force or show of force, or by criminal intimidation. It is true that the trespass continued, but that was not responsible for dispossession which was originally not attended by criminal force as defined in Section 350, I. P. C. In that view of the matter, the order of learned Mun-siff-Magistrate, Jodhpur District, under Section 522, Cr. P. C., was not legal. In support of this proposition reliance is placed upon Nani Gopal Deb v. Bhima Charan Bakshit, AIR 1956 Cal 32, Samdhu Roy v. Mati Khatik, AIR 1949 Cal 111, Chunni Lal v Baldeo, AIR 1924 All 84, Biharilal v. Emperor, AIR 1934 Lah 454 and Jagdish Rawani v. Dr. Rajendra Nath Sar-kar, AIR 1964 Pat 553.

Learned counsel for the petitioner relied on Franci.s D'Souza v. Edward A. L. Cameiro. AIR 1960 Bom 139 and Mahabir v. Rex through Shamdhari, AIR 1949 All 228. In the Bombay case, the lock of the room was broken initially in the absence of the complainant. Next day when the complainant questioned the act of the accused and when the accused resisted, the Bombay High Court held that the action of the accused amounted to the use of criminal force. The facts of the present case are materially different from those of the Bombay case. In this case learned Magistrate did not give any finding that in spite of the resistance of the complainant, the accused broke open the locks. His finding is that the accused entered the house somewhere between March 24, 1964 and April 1. 1964. Therefore, the Bombay authority is of no assistance to the petitioner. Likewise, the Allahabad case, instead of helping the petitioner, helps the non-petitioners. In that case it was held by Hon'ble Wanchoo J. that the use of criminal force or show of force of criminal intimidation must be with reference to a person and not with reference to property, and that show of force might consist in the physical presence of the accused, his servant or companions in such a way that the true owner was put to fear that if he tried to regain possession by force, he would be met by force. That being the position, the order of the trial court that possession over the property should be restored to the complainant is not in consonance with the provisions of Section 522, Cr. P. C.; and the appellate court was perfectly right in setting aside that order.

5. I now pass on to the second point pertaining to the jurisdiction raised by learned counsel for the petitioner that under Section 408, Cr. P. C., any person convicted on a trial held by a Magistrate can file an appeal in the court of Session. Under Section 423 (1) (b), Cr. P. C., the appellate court can reverse the finding and sentence and acquit or discharge the accused or alter the finding and maintain or reduce the sentence or alter the nature of the sentence, not so as to enhance the same. Under Section 423 (I) fc). in an appeal from any other order the appellate court may alter or reverse that order. Learned counsel has also drawn the attention of the court to Section 423 (1) (d), Cr. P. C., which provides that the appellate court may make any amendment, or any consequential or incidental order that may be just or proper. In the light of the above provisions, learned counsel has argued that since the appellate court maintained the conviction of the accused Bhinya Ram, no incidental order under Section 423 (1) (d), Cr. P. C., could have been passed. The remedy of the accused against the order of restoration of the property made by the trial court lay in filing a revision petition and as no such application was filed, the appellate court was incompetent to pass order of restoration while hearing the appeal against the conviction of the accused. Learned counsel alluded to Mohammad Sharif v. Diwan Singh, AIR 1940 Lah 95; Ram Prasad v. State, AIR 1958 All 159; Rajbanshi Thakur v. Chandey Jha, AIR 1951 Pat 307 and Kalu v. Mamoti Sahai, 1955 Raj LW 12 : (AIR 1955 NUC (Rai) 5988).

6. Prior to the amendment of Section 522, Cr. P. C.. in 1923, there was a difference of opinion as to whether order of restoration should be passed simultaneously with the judgment or might be passed subsequently, with a view to resolve that controversy, the section was amended and under the present section so amended, a Magistrate can make an order when convicting the accused or at any time within one month from the date of the conviction for the restoration of the property. If the Magistrate does not pass an order for the restoration simultaneously with the order of conviction and if he passes an order subsequently, that order is no doubt subject to revision, and is not subject to appeal. In AIR 1940 Lah 95 learned Magistrate heard and decided a criminal case against the petitioner Mohammad Sharif for criminal trespass and convicted him. Subsequently, the Magistrate was moved under Section 522, Cr. P. C. to restore possession to the complainant in the original case, which he refused to pass. The Sessions Judge on a revision petition against that order took action himself and passed orders under Section 522 (2), Cr. P. C. It was held by the Lahore High Court that under that circumstance the sessions Judge had no power to pass that order as the subsequent order did not give any sort of right of appeal by itself against an order passed under Section 523 Cr. P. C. Likewise, in AIR 1958 All 159, subsequent to the conviction of the accused the Magistrate passed an order under Section 522, Cr. P. C., for restoration of property to the complainant. Therefore, that citation also does not support the petitioner's case.

In 1955 Raj LW 12 : (AIR 1955 NUC (Raj) 5988) no order for restoration of possession was made by the trial Magistrate at the time of conviction of the accused, Within a month from the date of the original conviction, the complainant Mamoti Sahal, made an application under Section 522 (1), Cr. P. C., for restoration of possession and ultimately the learned trial Magistrate directed restoration of possession by an order, dated April 21, 1953. This Rajasthan case also, therefore, is not on all fours with the facts of the present case. The decision in AIR 1951 Pat 307 is of no avail to the petitioner as in that authority it has been clearly mentioned that where an order under Section 522. Cr. P. C., is passed by the same judgment by which the ac-cused was convicted by the trial court and the court of appeal affirming the order of conviction interferes with that part of the judgment relating to the order under Section 522 (2), Cr. P C., the petition in revision against the decision of the appellate court could not be considered as an independent application under Section 522 (3). Cr. P. C. 'There is another direct authority in the point in issue. It is reported in the matter of Ujir Sheikh v. Syed Ali Sheikh, 16 Cri LJ 607 a : (AlR 1916 Cal 733 (1)). In that case a Division Bench of the Calcutta High Court pointed out that the appellate court had power to set aside the order of restoration under Section 423 (d). Cr. P. C., which authorises the appellate court in an appeal to make any incidental order

That being the clear law on the subject. I am of opinion that learned Additional Sessions Judge had had jurisdiction to pass an order under Section 423 (1) (d), Cr. P. C., while hearing the main appeal against the conviction of the accused. That order could be said to be an incidental order. The fact that the conviction of the accused was maintained would not prevent the appellate court in making any consequential or incidental order that was deemed just or proper Therefore, the second contention raised on behalf of the petitioner that learned Additional Sessions Judge No 2, Jodhpur, had no power to pass such an order while hearing the appeal has no substance.

7. In the result, this revision-petition having no force stands dismissed.


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