Gordhan Das v. State — 1963 DIGILAW 9 (RAJ)

L.S. MEHTA, J.—This is a revision-petition directed against the judgment of learned Additional Sessions Judge No. 2, Jodhpur, dated November 30, 1966. It is alleged by the prosecution that Mst. Noji 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 mortgaged the house in favour of the petitioner Gordhan Das, Oswal, resident of Udaimandir, Jodhpur, and his brothers. The mortgage was alleged to be anomalous. Thereafter Mst. Noji 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 1, 1964, Shesh Mal brother of Gordhan Das went to the house and saw that non-petitioner 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 sec. 448, and 380, IPC , in the court of Munsiff-Magistrate, Jodhpur City. The case was then transferred to the court of learned Munsiff Magistrate. Jodhpur District. The accused pleaded not guilty to the charges under sec. 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 offences under sec. 448, I.P.C., by breaking open the locks of the house in dispute. All the accused, who were convicted, were given benefit of sec. The pleas of the accused were found to be false and the trial court held that the accused committed offences under sec. 448, I.P.C., by breaking open the locks of the house in dispute. All the accused, who were convicted, were given benefit of sec. 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 Ratanlal Shah, maintained the convictions of the accused persons under sec. 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 sec. 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 sec. 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 sec. 439, Cr.P.C., and was not subject to appeal. 3. As for the first point, learned counsel 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 assumed that 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-sec. (1) of sec. 522, Cr.P.C. by holding that the offence was not attended by criminal force. 4. Learned counsel further argued that the appellate court wrongly interpreted the language of sub-sec. (1) of sec. 522, Cr.P.C. by holding that the offence was not attended by criminal force. 4. Sec. 522(1), Cr.P.C. is in the following terms: "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 sec. 350, I.P.C., as follows: "Whoever intentionally uses force to any person, without that persons 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 sec. 349, I.P.C. 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 others body, or with anything which that other is wearing or carrying, or with anything so situated that such J contact affects that others sense of feeling. It is clear, therefore, that by the use of the words "criminal force" in sec. It is clear, therefore, that by the use of the words "criminal force" in sec. 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 sec. 350, I.P.C.) "In that view of the matter, the order of learned Munsiff Magistrate, Jodhpur-District, under sec. 522, Cr.P.C., was not legal. In support of this proposition, reliance is placed upon Nani Gopal Deb vs. Bhima Charan Rakshit(l); Shambhu Roy vs. Moti Khatik(2); Chunnilal vs. Baldeo(3) ; Biharilal vs. Emperor(4) and Jagdish Rewani vs. Dr. Rajendra Nath Sarkar(5). Learned counsel for the petitioner relied on Francis DSouza vs. Edward A. L. Cameiro(6) and Mahabir vs. Rex through Shamdhari(7). 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 Honble 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 sec. 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 sec. 408, Cr.P.C., any person convicted on a trial held by a Magistrate can file an appeal in the court of Session. Under sec. 423(l)(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 sec. 423(1)(c) 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 sec. 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, it could have been passed incidental order under sec. 423(1) (d), Cr.P.C. 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 vs. Diwan Singh (8); Ram Prasad vs. State (9); Rajbanshi Thakur vs. Chandey Jha (10); and Kalu vs. Mamoti Sahai (11). 6. Prior to the amendment of sec. 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. 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 Mohammad Sharif vs. Diwan Singh(8), 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 sec. 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 u/s. 522(2) Cr.P.C. It was held by the Lahore High Court that under these circumstances 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 sec. 522 Cr.P.C. Likewise, in Ram Prasad vs. State(9), subsequent to the conviction of the accused the Magistrate passed an order under sec. 522, Cr.P.C., for restoration of property to the complainant. Therefore, that citation also does not support the petitioners case. In Kalu vs. Mamoti Sahai (11),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 Sahai, 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 Rajbanshi Thakur vs. Chandey Jha(lO) is of no avail to the petitioner as in that authority it has been clearly mentioned that where an order under sec 522, Cr. This Rajasthan case also, therefore, is not on all fours with the facts of the present case. The decision in Rajbanshi Thakur vs. Chandey Jha(lO) is of no avail to the petitioner as in that authority it has been clearly mentioned that where an order under sec 522, Cr. P.C., is passed by the same judgment by which the accused 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 sec. 522(3), Cr.P.C. There is another direct authority on the point in issue. It is reported in the matter of Ujir Sheikh vs. Syed Ali Sheikh(12). 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 sec. 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 jurisdiction to pass an order under sec. 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 th?t 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.