(1) Petitioner M. A. Mohamed Ali has been convicted under S. 448 I.P.C. and sentenced to pay a fine of Rs. 200, in default simple imprisonment for two months, and an order under S. 522 Crl.P.C. Has also been passed directing restoration of possession of the bungalow occupied by the petitioner to the respondent-complainant. The complainant's case was that he had leased his bungalow No. 117, Scheme Road, Mahalingapuram, Nungambakkam, to P.W. 2 M. G. Menon on 5-6-1965 on a monthly rent of Rs. 350, that P.W. 2 M. G. Menon intimated on 14-6-1965 that he wanted to vacate the bungalow as he was ill and actually vacated the bungalow on 20-6-1965 and that the petitioner who was allowed to remain in a portion of the bungalow as a guest refused to vacate the bungalow. On the other hand, the case of the petitioner was that he occupied the bungalow only as a tenant under the complainant and that he allowed P.W. 2 to remain as a guest in a portion of the bungalow. The petitioner has examined himself and three other witnesses in support of his case.
(2) On an examination of the evidence in this case, I have no doubt that the petitioner took the bungalow on rent from the complainant. One strong circumstance is the fact that he has obtained receipt Ex. D. 1 admittedly granted by the respondent for having received advance. There is also no good reason for disbelieving the evidence of the petitioner and his witnesses. There can be no doubt that the complainant has used the device of filing a complaint in the criminal court to get possession of the bungalow instead of going to the Rent Controller. The story of the complainant that P.W. 2 came as a tenant on 5-6-1965, got ill and wanted to vacate the bungalow within ten days on 14-6-1965 could hardly be believed. There is no reasonable explanation as to how the receipt Ex. D. 1 came to the possession of the petitioner, if really it was given to P.W. 2. There can be no doubt that the complainant has taken advantage of the fact that he has not mentioned the name of the petitioner in the receipt Ex. D. 1 to plead that he gave it to P.W. 1. But it is unnecessary to base the decision in this case on the above findings which one can easily arrive at on a perusal of the evidence in this case.
(3) It is unfortunate that this case has been transferred by the learned Chief Presidency Magistrate to a Special Honorary Presidency Magistrate for trial. This court has given repeated instructions that cases like criminal trespass ought not to be transferred to Honorary Presidency Magistrates for trial as they cannot be expected to clearly understand the distinction between civil and criminal trespass. One has to read only the complaint and the sworn statement to come to the conclusion that there is no criminal trespass, and in fact, if the case had been handled by a Stipendiary Presidency Magistrate, he would have dismissed it under S. 203 Crl.P.C. In the complaint, the respondent has stated that the petitioner was in illegal and unauthorised occupation of the premises and that when he questioned him, the petitioner abused him and threatened to use force against him if he dared to interfere with his occupation. It should be noted that the evidence of P.W. 2 is that the petitioner came to occupy the bungalow lawfully as a guest, and hence there can be no question of unauthorised or unlawful occupation of the bungalow. There is no averment in the complaint that the petitioner had the necessary mens rea required for criminal trespass under S. 441 Indian Penal Code.
In the sworn statement the complainant has stated that the petitioner was not his tenant, that he got in unlawfully and that he threatened him. The evidence of the complainant, Decree. Ramadoss, P.W. 1, is equally unsatisfactory, as there is nothing in the evidence to show that the petitioner had the necessary means rea required for criminal trespass. When the complainant was examined on 12-8-1965, his complaint seems to be that the petitioner had not vacated the bungalow and he was illegally occupying it. Even when he was subsequently recalled and examined as a defence witness, on 8-10-1965, he did not state that the petitioner continued to remain in the bungalow unlawfully with intent to commit an offence or to intimidate, insult or annoy him. P.W. 4 Raghavan deposed that the petitioner said that he will neck out P.W. 1, the complainant. But even if that statement is true it would not show that the petitioner used any force. The alleged threat mentioned in the complaint was a conditional one, namely, that he will use force in case the complainant interfered with his occupation of the bungalow; thus, even if the petitioner was only a licencee as would appear from the evidence of P.W. 2, he cannot be convicted of criminal trespass.
But if, as already pointed out by me, the petitioner is really a tenant of the complainant, the complaint was totally unjustified as it would not only be false but frivolous. The conviction of the petitioner for criminal trespass cannot be justified. The conviction and the sentence of fine are, therefore, set aside.
(4) The further question to be considered is whether the order under S. 522 Crl.P.C. is legal. The learned advocate for the respondent-complainant relied on the decision in Ram Prasad v. State, : AIR1958All159 , in support of his contention that the order under S. 522 Crl.P.C. is not a consequential order and that the mere fact the accused is acquitted under S. 448 I.P.C. is not ground for setting aside the order under S. 522 Crl.P.C. it is however clear from the said decision that an order under S. 522 Cri. P. C. is revisable. I am unable to accept the contention of the learned advocate for the respondent that a separate revision ought to have been filed against an order under S. 522(1) Crl.P.C. The present revision case has been filed against the judgment and order of the learned Special Honorary Presidency Magistrate in C. C. No. 10051 of 1965 and the said judgment and order relate not only to the conviction and sentence of fine but also to the order under S. 522 Crl.P.C.
In fact, the petitioner filed Crl. M. P. 3180 of 1965 to stay the execution of the order in C. C. 10051 of 1965 on the file of the Special Honorary Presidency Magistrate and it was finally dismissed on the ground that possession of the bungalow had been delivered to the complainant. Even according to the evidence adduced by the complainant the petitioner was in occupation of the bungalow as a licencee. But, as already pointed, the petitioner's version that he remained in the bungalow as a tenant appears to be true. There is, therefore, no justification for passing the order under S. 522 Crl.P.C. as the petitioner did not obtain or retain possession by criminal force or show of force or criminal intimidation. The order under S. 522 Crl.P.C. is illegal and it is therefore set-side.
(5) The learned advocate for the respondent-complainant relied on the observation in Basanta Kumar v. Kenaram, : AIR1953Cal393 , that there is no provision in S. 522 Crl.P.C. for restoring such possession back to the accused person. The observation in that case is only an obiter. Under S. 439 Crl.P.C., the High Court can as a court of revision exercise any of the powers conferred on a court of appeal under Ss. 423, 426, 427 and 428 etc. Under S. 423(1) (d) Crl.P.C. an appellate court may make any amendment or any consequential or incidental order that may be just or proper. I have set aside the order of the delivery of possession of the bungalow to the respondent-complainant under S. 522 Crl.P.C. Incidental or consequential order is to direct restoration of possession of the property to petitioner. Incidental or consequential orders are those which follow as a matter of course being necessary complements to the main order passed without which the latter would be incomplete or ineffective, and such are directions as to refund of fines realised from acquitted persons, or as to the restoration of compensation amount paid under S. 250 Crl.P.C. on the reversal of acquittals, or orders for disposal of property.
Further, under S. 561-A Crl.P.C., nothing in the Criminal Procedure Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is obvious that when a court has authority to made an order, it must have the power to carry it out into effect; otherwise it will be useless to make it. The learned Chief Presidency Magistrate shall take steps to direct re-delivery of possession of the bungalow and the properties taken from the petitioner to him.
(6) Order set aside.