RAMASHING v. STATE OF MYSORE — 1971 DIGILAW 283 (KAR)

( 1 ) THE petitioner, who was A. 1 in CC. No. 841 of 1969 on the file of the ii Magistrate, Bangalore, has been convicted and sentenced for an offence under S. 448 IPC. He was sentenced to undergo simple imprisonment for two weeks and to pay a fine of Rs. 200 and in default to undergo simple imprisonment for a further period of one month. In Crl. A. No. 182 of 1970, the I Addl. Sessions Judge, Bangalore, has confirmed the conviction, but modified the sentence to one of fine of Rs. 200 and in default to simple imprisonment for one month. ( 2 ) ORIGINALLY, wife and daughter of the petitioner were A2 and A3 in the said case. They were acquitted in the trial Court. The prosecution case is that somewhere in the year 1962, A2 executed a mortgage deed in the form of a sale-deed in favour of PW1 the complainant and mortgaged her property-a house. On the very day PW. 1 executed a deed binding himself liable to re-convey the property on the payment of the amount within a stipulated period. On the very day itself, he took a lease-deed from A1 the petitioner. On the basis of this lease deed, PW1 instituted proceedings for eviction under the House Rent Control Act, against the petitioner. He secured an order in his favour. He sought out execution in EP. No. 3 of 1967, and ultimately delivery of possession of the property was ordered on 11-1-1967. It is the case of the prosecution that on 23-3-1967 Amin pw. 5 executed this order of eviction and handed over possession of the property to PW. 1. On 24-3-67 the petitioner broke open the lock put by pw. 1 to the house and effected forcible entry and kept his things inside the house. Thereafter, an application was filed which resulted in the prosecution of the said three persons. ( 3 ) THE contention of the petitioner is that he was not aware of the execution proceedings and the delivery of possession on 23-3-1967 was not made when he was present and as such he has not committed any offence. It is to be mentioned that the Magistrate has passed an order under s. 522 Crlpc. directing possession of the house to be got delivered to PW. 1. It is to be mentioned that the Magistrate has passed an order under s. 522 Crlpc. directing possession of the house to be got delivered to PW. 1. Sri Nabhirajaiah, the learned Counsel for the petitoner, contended that there is no material produced on record to show that the petitioner was aware of the execution proceedings and delivery of possession of the property to PW. 1 on 23-3-1967 and, therefore, it cannot be held that he has committed an offence under S. 448 IPC. He did not contend that the evidence of PWs. 2 and 4 about the breaking open of the lock by the petitioner and effecting forcible entry into the house, cannot be accepted. The two Courts below have accepted this evidence. Therefore, it is to be held that the facts put forward by the prosecution that on 24-3-1967 the petitioner broke open the lock affixed to the house by PW. 1 and effected forcible entry and put his things inside the house, have been established. About delivery of possession, there is the evidence of PWs. 3 and 5. PW. 5 is an Amin. He delivered possession of the property to PW. 1 on 23-3-1967 as per the order passed on 11-1-1967. He has recorded a panchanama also. The executing Court has accepted this delivery by PW. 5 as legal and valid. It is, of course seen that there is no material to show that the petitioner was present at that point of time. It is the petitioner's case that he was employed somehere else and he returned on 24-3-1967 and that his wife and daughter i. e. , A2 and A3 were outside the house and he broke open the lock and entered the house. PW. 5 the Amin has stated that at the time of executing the order of the Court on 23-3-1967; A2 and A3 were present, and he took possession from them and handed over possession to PW. 1. It is, hence, established that handing over possession of the property to PW. 1 was made by PW. 5 in the presence of A2 and A3. The natural inference which flows from the above facts and circumstances is that on the arrival of the petitioner, A2 and A3 must have informed him that possession of the property had been delivered by an officer of the court to PW. 1. 1 was made by PW. 5 in the presence of A2 and A3. The natural inference which flows from the above facts and circumstances is that on the arrival of the petitioner, A2 and A3 must have informed him that possession of the property had been delivered by an officer of the court to PW. 1. It is, therefore, idle, in my opinion, to contend that the petitioner was not at all aware of the execution proceedings and handing over possession of the property by an Amin to PW. 1. In the result, the conviction passed on the petitioner cannot at all be interfered with. Sri Nabhirajaiah contended that the provisions of S. 522 Crlpc. would not be applicable to the facts on hand as PW. 1 was not at all present when the petitioner is alleged to have effected forcible entry into the house and, therefore, the necessary ingredient of use of criminal force by the petitioner is not established. S. 522 (1) Crlpc. reads as follows:" (1) 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 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, 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. " ( 4 ) IT is not the case of the prosecution that the petitioner dispossessed pw. 1 of this property by criminal force or show of force or by criminal intimidation. It is its case that the petitioner effected forcible entry into the house by breaking open the lock. It is an undisputed fact that neither PW. 1 nor anybody on his behalf was present when the petitioner committed this offence. "criminal Force" is denned in S. 350 of the Indian Penal Code. It is its case that the petitioner effected forcible entry into the house by breaking open the lock. It is an undisputed fact that neither PW. 1 nor anybody on his behalf was present when the petitioner committed this offence. "criminal Force" is denned in S. 350 of the Indian Penal Code. It reads as follows:"whoever intentionally uses force to any person, without that person's 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. " ( 5 ) A reading of this provision shows that the force used intentionally by a person should be to a person, i. e. , against a person. It does not contemplate use of force against property. What is established by the prosecution is that the petitioner used force against the property viz. , lock affixed to the door of the house by PW1. Apparently the provisions of S. 522 Crlpc. carnot be made applicable to the facts of this case. ( 6 ) IN Zamin Hussain Khan v. Emperor, AIR 1934 Oudh 185. it is held that according to the facts established in the case, there was no occasion for use of any force or show of force on the part of the accused (therein) when they took possession of the property as the complainant was absent and no one on behalf of the complainant appeared to prevent the accused from committing the offence of which they had been convicted, and, therefore, the order restoring possession to complainant could not be passed under S. 522 Crlpc. In Narain Singh v. Pannalal, AIR 1940 Lah. 460. their Lordships have held that the only force that is contemplated by S. 522 Crlpc. is force as applied to a human body, and, therefore, where the complainant (in that case) was dispossessed of his house in his absence, no criminal force can be said to have been used to any person and as such no order could have been passed under S. 522 Crlpc. In d. K. Aswatha Narayana Gupta v. J. Muneppa, AIR 1943 Mad 257 . In d. K. Aswatha Narayana Gupta v. J. Muneppa, AIR 1943 Mad 257 . it is held that an order for restoration of possession cannot be made under s. 522 Crlpc. where the criminal force attending the dispossession complained of is used not against the person dispossessed, but against the property in his absence, and that S. 522 Crlpc. applies only when criminal force is used against the person. The same is the view expressed in mahabir v. Rex, AIR 1949 All 228. ( 7 ) IT is held therein in regard to the provisions of S 522 Crlpc. that use of criminal force or show of force or criminal intimidation must all be with reference to a person, and not with reference to property. Reliance has been placed on this decision in andanayya v. Irayya, 1966 1 Mys. L. J. 276. It is held therein that use of of criminal force, contemplated under S. 522 Crpc. . must be with reference to a person and not with reference to the property. ( 8 ) IN view of the position in law being as above discussed, I hold that the contention put forward by Sri Nabhirajaiah is to be accepted. That part of the order passed under S. 522 of Crlpc. , by the Courts below, is set aside. It is with this modification in the orders passed by the Courts below, that this revision petition is dismissed. --- *** --- .