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1957 DIGILAW 61 (ORI)

SHARIF BEG v. GOLAM MAHAMMED

1957-08-27

RAO

body1957
JUDGMENT : Rao, J. - This petition is filed against the appellate order of the Additional District Magistrate, Dhenkanal confirming an order of a Magistrate, Third Class, directing u/s 522 Code of Criminal Procedure restoration of possession of the land to the complainant. 2. On a complaint made by the opposite party under Sections 447 and 426 I.P.C. against the Petitioner, the latter was convicted of the said two offences for having trespassed upon the land belonging to the complainant and in his possession, and cut the fence. The conviction was confirmed in appeal as also a revision application filed by the Petitioner to this Court was dismissed. Subsequent to the conviction of the Petitioner, the complainant filed an application u/s 522 Code of Criminal Procedure praying for restoration of possession of the lad and both the Courts below directed restoration. 3. The learned Counsel for the Petitioner contended before me that the order of the Additional District Magistrate is contrary to law in as much at the requirements of Section 522 Code of Criminal Procedure are not complied with. Section 522 Code of Criminal Procedure contemplates restoration of possession and says, "When 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 immovable property, the court may, if it thinks fit, order the person dispossessed to be restored to the possession of the same." The judgment in the criminal case of both the trial court and the appellate court were read out to me by the learned Counsel for the Petitioner. The judgment of the trial court does not use or say any where that the Petitioner; trespass was attended by criminal force or show of force or that the complainant was dispossessed. In the appellate judgment also there is nothing stated that the complainant was dispossessed, but there is an expression to the effect forcibly dispossessed. Even assuming that there was evidence in the case that any force was used by the Petitioner, the mere expression, 'forcibly dispossessed' does not mean and does not convey the Idea that the Petitioner was convicted of criminal trespass attended by criminal force or show of force. Even assuming that there was evidence in the case that any force was used by the Petitioner, the mere expression, 'forcibly dispossessed' does not mean and does not convey the Idea that the Petitioner was convicted of criminal trespass attended by criminal force or show of force. Further Section 522 Code of Criminal Procedure requires that there should be a finding that the complainant to whom restoration is ordered is forcibly dispossessed. This finding Is absent not only in the judgments of the two criminal courts which convicted the Petitioner but also in the orders for restoration. 4. In my view, therefore the order of the Additional District Magistrate is contrary to law. The revision petition is allowed and the order is set aside. Revision allowed. Final Result : Allowed