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Sambhu Roy Vs. Moti Khatik - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1949CriLJ172
AppellantSambhu Roy
RespondentMoti Khatik
Cases ReferredMohni Mohan Chowdhury v. Harendra Chandra
Excerpt:
- .....by force from entering the premises let to him. the petitioner was tried under section 448, penal code, for house trespass. the learned magistrate who heard the case held that a case under section 448, penal code, had not been made out and acquitted the petitioner on that charge. he, however, found the petitioner guilty of a lesser offence under section 341, penal code, and sentenced him to pay a fine of rs. 60 or in default to undergo simple imprisonment for one week.2. the complainant thereupon applied to be put in possession of the premises, which he alleged had been let to him, under the provisions of section 522, criminal p.o. the learned magistrate was satisfied that the opposite party had not been prevented by actual physical force from entering upon his premises......
Judgment:
ORDER

Harries, C.J.

1. These are two connected petitions which arise out of the same incident. The petitioner was a landlord of certain premises, part of which was let to the opposite party. The opposite party made a complaint alleging that he had been prevented by force from entering the premises let to him. The petitioner was tried under Section 448, Penal Code, for house trespass. The learned Magistrate who heard the case held that a case under Section 448, Penal Code, had not been made out and acquitted the petitioner on that charge. He, however, found the petitioner guilty of a lesser offence under Section 341, Penal Code, and sentenced him to pay a fine of Rs. 60 or in default to undergo simple imprisonment for one week.

2. The complainant thereupon applied to be put in possession of the premises, which he alleged had been let to him, under the provisions of Section 522, Criminal P.O. The learned Magistrate was satisfied that the opposite party had not been prevented by actual physical force from entering upon his premises. Nevertheless he held that he was bound by a Full Bench decision of this Court in the case of Mohni Mohan Chowdhury v. Harendra Chandra, 31 cal. 691 : 1 Cr.L. J. 453 (P.B.)), and made an order restor-ing possession to the opposite party.

3. The two petitions before me are directed against the order convicting the petitioner and the order directing the petitioner to restore possession to the opposite party.

4. It appears to me that there is no ground whatsoever for challenging the conviction of the petitioner under Section 341, Penal Code. There was abundant evidence that the petitioner had locked the door of these premises and thus restrained the opposite party who was entitled to possession from entering thereon and enjoying possession of the same.

5. It is to be observed that the case for the opposite party was that he had been assaulted and forcibly dragged out of the premises before the petitioner locked them. But this part of the opposite party's version was disbelieved. All that the Magistrate found was that the petitioner had wrongfully locked the door of these premises and thus prevented the opposite party who was his tenant, from entering thereon. It is clear that there is no finding whatsoever that any force or show of force was used towards the opposite party.

6. Section 522, Criminal P. C, empowers a Court to restore possession 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 the complainant has been dispossessed of any immovable property. In other words, a complainant if dispossessed by criminal force or show of force or intimidation may recover the property from which he was dispossessed.

7. It is clear that in this case dispossession was not the result of force or show of force or criminal intimidation, and therefore it appears to me that Section 622 has no application. The Full Bench case relied upon by the learned Magistrate in no way helps the opposite party. The learned Magistrate did not examine the facts of the Full Bench case. Had he done so, he would have found that in that case the person dispossessed had been physically assaulted and chased away. There had, therefore, been criminal force and a show of further criminal force. Those elements are entirely absent in this case and that being so the Fall Bench case can have no application.

8. In my judgment the petitioner was properly convicted under Section 811, Penal Code, but the order made against him to-restore possession cannot be sustained.

9. In the result, therefore, the application in Revision No. 210 of 1948 is dismissed and the conviction and sentence are affirmed. The rule in Revision No. 190 of 1948 is made absolute and the order restoring possession of the premises to the opposite party is set aside. The rule in case No. 210 of 1948 is discharged.


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