JUDGMENT : S. Acharya, J. - The Petitioners Nos. 1 and 2, Debraj Roul and Basu Roul respectively, stand convicted u/s 448, Indian Penal Code and they are sentenced thereunder each to pay a fine of Rs. 40/- in default to undergo Section I. for 20 days each. The other 5 Petitioners have been convicted u/s 426, Indian Penal Code and they have been sentenced thereunder each to pay a fine of REI. 20/. in default to Section I. for 10 days each. While convicting and sentencing them as above the Court passed an order u/s 522, Code of Criminal Procedure directing the Officer-in-charge, Berhampur Taluk P.S. to deliver possession of the house in question to the complainant. 2. Mr. Kanungo, the learned Counsel for the Petitioners made an unsuccessful attempt to assail the findings of the Court below that on the date of occurrence the Petitioners Debraj and Basu committed the offence of house trespass. Mr. Kanungo wanted to assail the above mentioned concurrent findings of fact merely on grounds of improper appreciation of the evidence on record, and as be could not show anything manifestly perverse or patently erroneous about the said findings. I would not interfere with the same so far as it related to the occurrence of house trespass on that day. As such the conviction of the Petitioners Nos. 1 and 2 u/s 448, Indian Penal Code is maintained. 3. The Petitioners Raghu Dandasi, Ratna, Ganga and Madhab (Nos. 3 to 7) have all be convicted only u/s 426, Indian Penal Code for removing the thatch from the said house. The bald finding to the above effect, in para 28 of the judgment; is without any discussion of the material evidence relevant to this aspect of the matter. There is also no finding that these Petitioners participated in the said incident with the intention to cause or knowing that they were likely to cause wrongful loss or damage to the complainant. These Petitioners admittedly went to work for Petitioners Nos. 1 and 2. It is not known whether these labourers associated themselves in the alleged incident with any previous deliberations, or requisite intention or knowledge of causing wrongful loss or damage to the complainant. There is absolutely no discussion and finding as to whether each of these Petitioners were actually resent and participated in the said incident. 1 and 2. It is not known whether these labourers associated themselves in the alleged incident with any previous deliberations, or requisite intention or knowledge of causing wrongful loss or damage to the complainant. There is absolutely no discussion and finding as to whether each of these Petitioners were actually resent and participated in the said incident. That being so it is difficult for me to uphold the conviction of the above mentioned Petitioners (Nos. 3 to 7) u/s 426, Indian Penal Code. 4. It was seriously contended by Mr. Kanungo that on the prosecution evidence, as enumerated by the Court below, all the essential requirements on which an order u/s 522, Code of Criminal Procedure could be passed were not established in this case, and so the Court?s order u/s 522, Code of Criminal Procedure is bad in law and is liable to be vacate. In this connection he further contended that the Court finding, that the above mentioned trespass was done by show of criminal force, being a bald one and was arrived at without any cogent discussion, consideration and/or sifting of the evidence on record with regard to this aspect, and being contrary to the evidence on record, was liable to be set aside. On the Court?s own discussion of the evidence on record it is seen that, excepting the complainant himself, none of his other witnesses stated that the complainant in any manner was threatened with assault or was subjected to any show of force by the Petitioners either at the time of their entry into the house or for so on thereafter when the complainant went there and protested the first time. In this connection certain relevant portions of the impugned judgment dealing with the evidence of the complainant?s witnesses may be quoted below: Para 7 P.w. 2 has deposed that the accused persons came in a body. Accused Debraj and Basu Raulo entered inside the house of the complainant, by opening the door chain. The other accused in this case got up to the roof of the house and removed the thatch. When the complainant Protested the accused Raghu Dandasi, Ratna, Ganga and Madhaba said that the house did not belong to him. These Moused persons were called by A. 1 and A. 2 for work. Though this witness protested the action of the accused they did not pay any head. When the complainant Protested the accused Raghu Dandasi, Ratna, Ganga and Madhaba said that the house did not belong to him. These Moused persons were called by A. 1 and A. 2 for work. Though this witness protested the action of the accused they did not pay any head. Para 11 "According to p.w. 3 "When the Complainant protested the accused directed him to go to the Court." Para 13 "This witness (p.w. 4) also heard that the accused replied to the complainant that he might do whatever he could". Para 14 "He (p.w. 4) has deposed that this disputed house was not locked The doors were closed by means of hinge." Para 17 "At about 3 p. m. while this witness (p.w. 5) was inside his house, he found that the accused personas came to that house. They unlocked the chain of that house and admitted Debraj, Raulo and Basu Raulo into that house. Other accused got up to the thatch of the house and removed the straw. When the complainant went and questioned the high handed action, the accused replied him to go to the Court." Para 18 "As the house was closed in an ordinary fashion and no lock was fitted to it become easy for them to get into the house particularly when the family members of the complainant were not staying in the house." Para 19 "It is also clear from the evidence that the complainant and his brother kept their agricultural implements in that house and as it was an out house containing no valuables, they did not lock it up." (Insertions within brackets and italics are mine). However according to the complainant (p.w. 1) alone, the accused persons ?told that they would assault him if he interfered?. As this allegation coming from the hostile complainant, does not get any corroboration from the complainant?s other witnesses, it cannot be said to have been established beyond reasonable doubt. Moreover a thorough perusal of the entire judgment also reveals that the finding of the Court below, that the alleged entry into the house was attended by show of criminal force, is not based on any discussion, consideration or shifting of the evidence on record on this particular aspect of the matter. Moreover a thorough perusal of the entire judgment also reveals that the finding of the Court below, that the alleged entry into the house was attended by show of criminal force, is not based on any discussion, consideration or shifting of the evidence on record on this particular aspect of the matter. From the Court?s own discussion of the evidence on record, relevant portions of which are quoted above, it can at best be said that the Petitioners who had entered into the complainants house during his absence, did not pay any heed,and directed the complainant to go to the Court when he protested against their entry. 5. Mr. Misra, however, urged that even on such facts a case of show of criminal force was made out, and so the order u/s 522 Code of Criminal Procedure passed by the Court below was well founded. In support of his contention he cited the decision reported in AIR 1949 Allahabad, 228', and AIR 1951 Patna 3072. The relevant portion of the Allahabad decision is as follows: Use of criminal force means actual use thereof; criminal intimidation connotes a threat of use of force to another person. Show of force, therefore, must he something different from these two. It may fall short of the use of force or of a threat to use force. We think if the accused or his accomplices having entered upon the land do not quit the land when the true owner protests against such unauthorised entry and are ready to fight the offence can be said to have been attended by "show of force". Show of force may consist in the physical presence of the accused, his servants or companions in such a way that the true owner is put to the fear that if he tried to regain possession by force he will be met by force. (Italics are mine) In that case there was evidence to the effect that the accused persons forcibly ploughed the land in question and were ready to fight when the complainant protested against their act of trespass. This decision was referred to with approval in the case reported in AIR 1951 Patna 3072. The facts on which this Patna decision was arrived at were to the effect that the accused persons broke open the lock of the house and forcibly entered and occupied the house and looted the articles therein. This decision was referred to with approval in the case reported in AIR 1951 Patna 3072. The facts on which this Patna decision was arrived at were to the effect that the accused persons broke open the lock of the house and forcibly entered and occupied the house and looted the articles therein. On receiving the information, the complainant rushed to his house and found that the accused persons were sitting at the door way armed with deadly weapons, and when he attempted to go inside the house, he was threatened to be assaulted by the accused persons. It was also in evidence in that case that when the accused persons entered into the house witnesses and some others protested and intervened in the matter, but they all were threatened with assault by the accused persons. On such facts and circumstances Sarjoo Prasad, J found that it was a fit case in which an order u/s 522 Code of Criminal Procedure should be confirmed. In the present case as seen above, it is not established that there was any such threat or show of force as in the above mentioned two reported cases, and as such these two decisions do not apply in all force to the present case. 6. Mr. Kanungo, in support of his above mentioned contention, cited the decision reported in AIR 1964 Patna, 5533, wherein both the above mentioned Allahabad and Patna cases were referred to, and K. Sahai, J held It seems to me that the correct legal position is that, if the accused takes possession of an immovable property in the absence of the person in possession and if the accused used criminal force, criminal intimidation or show or force at the time when the person in possession comes to protest for the first time, the provisions of Section 522 of the Code of Criminal Procedure will become attracted. In this case before Sahai, J the accused was convicted u/s 456, Indian Penal Code on the prosecution case that he broke open at night four locks put upon the doors of two rooms in the possession of the complainant. Next morning the complainant found that the accused and his associates were occupying those two rooms, and on being asked by the complainant the accused ?took a defiant attitude and referred him to the Court?. Next morning the complainant found that the accused and his associates were occupying those two rooms, and on being asked by the complainant the accused ?took a defiant attitude and referred him to the Court?. On such facts his Lordship held He cannot be said to have shown force simply by asking the complainant to go to Court and seek his remedy there. What exactly he means by the words ?took a defiant attitude? is not at all clear. It may be that Jagadish merely" said to the complainant to go to Court, and this was taken by him to be a defiant attitude. In any case, there is no evidence of the presence of weapons with Jagadish or his associates, nor is there any evidence that the complainant was put to fear of physical hurt. That being so, I am unable to hold that there was any show of force even when the complainant first went to the rooms in question and "spoke to Moused Jagadish. In this view of the matter, it is not possible for me to pass an order for restoration of possession of the rooms to complainant. (Italics are mine). In the present case before me undisputedly the entry into the house by Petitioners 1 and 2 was made in the absence of the complainant or any of his person. The house was vacant and not even looked. As such the entry could not have been attended by any show of force. When the complainant went to the place and asked the accused about their entry, they did not pay any heed and directed him to go to the Court. Thus the facts in this case are very much similar to the facts of the above case reported in AIR 1964 Pat. 5533. Being in full agreement with the above quoted view taken by Sahai, J., I am of the opinion that this is not a fit case in which the order u/s 522, Code of Criminal Procedure can be maintained. 7. On the above discussions and considerations I find that the conviction of the Petitioners Debraj and Basu u/s 448, Indian Penal Code and the sentence imposed against them thereunder are well founded and justified, and are maintained as such. The conviction of the other 5 Petitioners namely Raghu, Dandasi, Ratna, Ganga and Madhab, all Naiks, Petitioner Nos. 7. On the above discussions and considerations I find that the conviction of the Petitioners Debraj and Basu u/s 448, Indian Penal Code and the sentence imposed against them thereunder are well founded and justified, and are maintained as such. The conviction of the other 5 Petitioners namely Raghu, Dandasi, Ratna, Ganga and Madhab, all Naiks, Petitioner Nos. 3 to 7 herein, u/s 426, Indian Penal Code and the sentence imposed against them thereunder, are set aside and they are acquitted of the same. Fines if paid by these Petitioners, be refunded to them. The order of the trial Court u/s 522, Code of Criminal Procedure, directing the officer-in-charge of Berhampur Taluk P.S. to deliver possession of the said house to the complainant, is also set aside. The revision accordingly is partly allowed in the terms aforesaid. Final Result : Allowed