Abdus Salam v. State — 1977 DIGILAW 53 (CAL)

Judgment 1. THIS Rule was issued on a revisional application. The petitioner was convicted by the Judicial Magistrate, First Class, Third court. Burdwan under sections 453 and 448 of the Indian Penal Code and was sentenced to suffer r. I for 15 days and to pay a fine of Rs. 100/- in default to imprisonment for a further period of 15 days under section 453 of the Indian Penal Code, no separate sentence being passed under section 448 of the Indian Penal Code. While so convicting the petitioner, the learned magistrate further ordered restoration of possession of me disputed shop-rooms to the complainant opposite party. Such an order was affirmed by the learned Sessions Judge, Burdwan, on an appeal by the petitioner. These orders are the subject matter of challenge in this Rule. 2. THE petitioner was prosecuted on a complaint filed by the complainant opposite party on May 19, 1969. The complainant's case shortly was that the disputed two shoprooms at premises No. 3212, B. B. Ghosh Road, tentuitola, Burdwan, belong to him. At one time, the said two room;- were let out to one Abdul Sobhan. Abdul shobhan died in Asar, 1374 B. S. and after his death his heirs and legal representatives including the petitioner gave back possession of the disputed two shoprooms on 3rd Chaitra, 1375 B. S. corresponding to March 17. 1969. According to the complainant, possession of the shoprooms having been so handed over to him he himself occupied the disputed showrooms and therein kepi certain article? of his own. The showrooms were under lock and key and taking advantage of the feet that the complainant was absent being away to his native village, the petitioner broke open the padlocks and trespassed into the said rooms. The complainant opposite party was informed of such trespass on 1st Baisakh, 1376 B. S. but since he was lying in bed suffering from chicken pox he could not take the necessary steps prior to May 19, 1969, when the complaint was lodged. At the trial the complainant examined himself as a witness along with 6 others. The complainant further relied on certain documentary evidence including Ext. 1, an agreement executed amongst others by the petitioner acknowledging surrender of the tenancy in favour of Abdul Sobhan and handing over possession of the disputed showrooms to the complainant opposite party. 3. At the trial the complainant examined himself as a witness along with 6 others. The complainant further relied on certain documentary evidence including Ext. 1, an agreement executed amongst others by the petitioner acknowledging surrender of the tenancy in favour of Abdul Sobhan and handing over possession of the disputed showrooms to the complainant opposite party. 3. THE petitioner pleaded not guilty to the charges and took the defence that the tenancy in favour of abdul Shobhan was never surrendered, that lie continued to occupy the shoprooms in question and that he was made to execute the agreement on misrepresentation of facts not really appreciating the terms thereof. According to him, he continued to occupy the disputed shoprooms agreeing to pay enhanced rent but the complain. veered round and refused to accepts let it tendered by him. 4. THE Learned Magistrate disbelieved the defence case that, the petitioner continued to remain in possesses of the disputed showrooms as one of the uses and legal representatives of Abdul Shobhan or that he was made of execute the agreement on misrepresentation. Keeping us oral evidence of the point as well supported by the documentary evidence (Ext. 1), the learned Magistrate came to a definite finding that complainant opposite party was given back possession of the disputed showrooms on March 17, 1969, and that on the relevant date the shoprooms were in his possession. Though the learned Magistrate discarded the evidence of P. W. 4 Manjoor and P. W. 5, Muktesh Ganguli as chance witnesses he accepted the evidence of P. W. 3, Ismail, P. W. 6, rabihdra and P. W. 7, Anil Das in finding that the petitioner wrongfully trespassed into the disputed shoprooms on l -. n Baisakh 1376 B. S. by breaking open the padlock?, put by the complainant of his absence. The learned Magistrate Considered the defence evidence adduced by the petitioner including cur documents but found on consideration thereof that such documents del not prove the defence that the petitioner continued to occupy the disputed showrooms by virtue of the continued tenancy once granted in favour of Abdul Shobhan. Ti 'earned Magistrate accordingly found the petitioner 82 C. W. N. 1 Abdus Sal tend such trespass he did it with an intention to annoy the complainant opposite party who was then in possession of the shoprooms. Ti 'earned Magistrate accordingly found the petitioner 82 C. W. N. 1 Abdus Sal tend such trespass he did it with an intention to annoy the complainant opposite party who was then in possession of the shoprooms. Such was the find in of the of appeal below on state and Anr. 845 possession of die disputed shoprooms in favour of the complainant opposite forty made under section 522 (1) of the 'criminal Procedure Code. . Section 522 (1) is in the follwoing to -guilty of both the charges under Sections 453 of the Indian penal Code and 448 of the Indian Penal Code and convicted him thereunder by an order dated August 11, 1973, and sentenced him in the manner indicated hereinbefore. The petitioner preferred an appeal before the Learned Sessions Judge. In the appeal, he was allowed to adduce additional evidence. The Learned sessions Judge, however, on due consideration of the evidence including i he additional evidence so adduced, affirmed the findings of the learned magistrate. The learned Sessions Judge believed and accepted the evidence of all the prosecution witnesses except p. W. 5, Muktesh Ganguli and he gave his reasons for doing so. On consideration of evidence, oral and documentary. The learned Sessions Judge found that the complainant opposite party was put back into possession of the disputed showrooms on 3rd Chaitra, 1375. B. S. corresponding to March 17, 1969, and that fact was clearly acknowledged in writing by the petitioner himself in the agreement (Ext. 1. The learned sessions Judge, further accepted the oral evidence of P. W. 3. Is mail, P. W. 4, manjoor, P. W. 6, Rabindra and P. W., 7, anil Das when these witnesses proved wrongful trespass by the petitioner into the disputed showrooms by breaking open the padlocks put by the complainant in is absence. The learned sessions Judge carefully considered she before evidence both oral and documentary and found that such evidence related events mostly subsequent to the occurrence which was sought to be created to make out a possible defence to the charge of wrongful trespass. The Learned Sessions Judge rejected the defence plea and affirmed the conviction of the petitioner on both the charges as also the sentence imposed upon him by the Learned magistrate. The Learned Sessions Judge rejected the defence plea and affirmed the conviction of the petitioner on both the charges as also the sentence imposed upon him by the Learned magistrate. Before the learned Sessions judge, the petitioner strongly challenged the validity of the order of restoration of possession made by the learned magistrate under section 522 (1) of the code of Criminal Procedure but that contention was also overruled when the learned Sessions Judge held that a criminal house trespass by breaking open the padlock even in the absence of the complainant is an offence attended by criminal force within the meaning of section 522 (1) of the criminal Procedure Code. The learned sessions Judge accordingly affirmed the order of restoration of possession also in favour of the complainant, opposite party. The petitioner preferred an appeal before the Learned Sessions Judge. In the appeal, he was allowed to adduce additional evidence. The Learned sessions Judge, however, on due consideration of the evidence including i he additional evidence so adduced, affirmed the findings of the learned magistrate. The learned Sessions Judge believed and accepted the evidence of all the prosecution witnesses except p. W. 5, Muktesh Ganguli and he gave his reasons for doing so. On consideration of evidence, oral and documentary. The learned Sessions Judge found that the complainant opposite party was put back into possession of the disputed showrooms on 3rd Chaitra, 1375. B. S. corresponding to March 17, 1969, and that fact was clearly acknowledged in writing by the petitioner himself in the agreement (Ext. 1. The learned sessions Judge, further accepted the oral evidence of P. W. 3. Is mail, P. W. 4, manjoor, P. W. 6, Rabindra and P. W., 7, anil Das when these witnesses proved wrongful trespass by the petitioner into the disputed showrooms by breaking open the padlocks put by the complainant in is absence. The learned sessions Judge carefully considered she before evidence both oral and documentary and found that such evidence related events mostly subsequent to the occurrence which was sought to be created to make out a possible defence to the charge of wrongful trespass. The Learned Sessions Judge rejected the defence plea and affirmed the conviction of the petitioner on both the charges as also the sentence imposed upon him by the Learned magistrate. The Learned Sessions Judge rejected the defence plea and affirmed the conviction of the petitioner on both the charges as also the sentence imposed upon him by the Learned magistrate. Before the learned Sessions judge, the petitioner strongly challenged the validity of the order of restoration of possession made by the learned magistrate under section 522 (1) of the code of Criminal Procedure but that contention was also overruled when the learned Sessions Judge held that a criminal house trespass by breaking open the padlock even in the absence of the complainant is an offence attended by criminal force within the meaning of section 522 (1) of the criminal Procedure Code. The learned sessions Judge accordingly affirmed the order of restoration of possession also in favour of the complainant, opposite party. 5. IN this Rule, the petitioner is challenging the validity of the order of the learned Magistrate as affirmed by the learned Sessions Judge. So far as the petitioners' conviction under section 453 is concerned, we find little ground for interference by us in this revisions jurisdiction. Both the courts below on assessment of the evidence on record have clearly found that all the ingredients of an offence under section 433 of the Indian Penal Code had been well established as against the petitioner. Evidence on record well establishes the position that the complainant opposite party was in possession of the disputed shop rooms and the petitioner commuted house breaking when he commuted trespass into the said showrooms by breaking open the paldocks put by the complainant. It is true that the complainant was not present at the time of occurrence but the evidence well establishes the position that when the petitioner tend such trespass he did it with an intention to annoy the complainant opposite party who was then in possession of the showrooms. Such was the finding of the Court of appeal below on the appreciation of the evidence on record. In this revisional application, we are not to reprise the evidence nor do we find any ground which can induce us to do so. That being the position, we cannot but uphold the petitioner's conviction under section 453 of the Indian Penal Cede and the sentence passed on him on that account. 6. MR. In this revisional application, we are not to reprise the evidence nor do we find any ground which can induce us to do so. That being the position, we cannot but uphold the petitioner's conviction under section 453 of the Indian Penal Cede and the sentence passed on him on that account. 6. MR. Roy appearing in support of this Rule has, however, contended that once the petitioner is convicted of house breaking he should not have been convicted also of house trespass, the minor offence which constitutes a part of the offence of house breaking. In our opinion, there is some substance in this contention of Mr. Roy. It appears to us that the learned Judges of the courts below convicted the petitioner under section 448 for house trespass obviously by way of an alternative in case his conviction under section 453 be not found sustainable and that is perhaps the reasons why no separate sentence was passed in respect of the returner's conviction under section 448 of the Indian Penal code. Be that as it may. since we are upholding the petitioner's convection under sections 453 of the Indian Penal code we set aside his conviction under section 448 of the Indian Penal Code since in our opinion the house trespass itself became the aggravated, offence of house breaking in view of the attending Circumstances proved as against the petitioner. Mr. Roy appearing in support of this Rule has, however, very strongly challenged the order for restoration of possession of the disputed showrooms in favour of the complainant opposite party made under section 522 (1) of the Criminal Procedure Code. Section 522 (1) is in the following terms:- "wherever 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 any criminal intimidation any person has been dispossessed of any immovable property, the Court may if it thinks fir when convicting such person or at any time within the date if one month from the date of conviction. order the person dispossessed to be restored to the possession of the same. " 7. ACCORDING to Mr. order the person dispossessed to be restored to the possession of the same. " 7. ACCORDING to Mr. Roy, the the Court can assume jurisdiction under this provision to restore possession to a person dispossessed when the dispossession is by criminal force or show of force or by criminal intimidation. Such criminal force or show of force or criminal intimidation must according to Mr. Roy be against a person or persons and not merely as against the immovable property. It has been contended by Mr. Roy that the learned magistrate nowhere in his judgment had come to any finding that the complainant was dispossessed of the disputed showrooms by criminal force or show of force or criminal intimidation to any person or persons. According to Mr. Roy even according to the complainant's case he was dispossessed in his absence. Such being the position. Mr. Roy contends that the learned Magistrate had no jurisdiction to the an order as made by him under section 522 (1) of the Criminal Procedure Code. He was obviously in error in making such an order mechanically only because the petitioner bad been convicted of in offence of house breaking which is of an offence which must necessarily be attended by criminal force show of force or by criminal intimidation as against a person or persons. So far as the learned Sessions Judge is concerned. It has been contended by Mr. Roy that I he learned Sessions Judge failed to take note of the fact thru criminal force how of force or criminal intimidation contemplated 'by section 522 (1) of the Code must be as against a person or persons and no; plan the immovable property. Mr. Roy has pointed out that the learned sessions Judge look the view that 'although the complainant was not present at the time of trespass, since such trespass was committed by breaking open the padlock, it must be held to be an offence at: ended by criminal force within the meaning of section 522 (1) of the Criminal Procedure Cole. This, according to Mr. Roy. Is not a correct approach for a Court to a Minnie audition under section 522 (1) of the Criminal Procedure Code. 8. IN our opinion there is amdle substance in this contention of Mr. Roy. This, according to Mr. Roy. Is not a correct approach for a Court to a Minnie audition under section 522 (1) of the Criminal Procedure Code. 8. IN our opinion there is amdle substance in this contention of Mr. Roy. The learned Magistrate it appears, was not conscious of the Firms of this powers under section 522 (1) of the criminal Procedure Code, In order to attract section 522 (1) of be Code, a person must be convicted of an offence commission where of attended by criminal force, show of force or by criminal intimidation and the dispose session itself must also be by such force, show of force or criminal intimidation. The words 'attended by criminal force, show of force or by criminal intimidation may not mean that the offence of which the person is convicted must be such as to have criminal force, show of force or criminal intimidation as a necessary ingredient. But it is now well settled that such criminal force, show of force or criminal intimidation must be as against a person or persons be he the person dispossessed or some other person present at the time of the offence. That follows necessarily in view of the definition of force in section 349 of the Indian Penal Code, criminal force in section 350 of the Indian penal Code and criminal intimidation in section 503 of the Indian Penal code. This also appears to be settled principle on the decisions of this Court. Mr. Roy has rightly relied on the judgment of Harris C. J., in the case of Snmbhu Roy v. Moti Khatik A. I. R. 1949 Calcutta 111. In this case, Sambhu roy was convicted of an offence under section 341 of the Indian Penal Code on a complaint lodged by the complainant, on a finding that he had wrong fully looked the door of the premises and to us prevented the complainant, has tenant from entering thereon. There however, was no finding that any force or show of force was used as warrants the complainant Sambhu roy being so convicted. the learned magistrate directed restoration of possessing of the premises to the compliment in a revision to this Court, this Court upheld Sambhu Roy's conviction under section 341 of the Indian penal Code but the order of restoration of possession in favour of the complainant was set aside. the learned magistrate directed restoration of possessing of the premises to the compliment in a revision to this Court, this Court upheld Sambhu Roy's conviction under section 341 of the Indian penal Code but the order of restoration of possession in favour of the complainant was set aside. It was observed : "section 522 Criminal Procedure code empowers a Court to restore possess-on 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 by 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 criminal intimidation may recover the property from which he was dispossessed. " The same view was taken by the Division Bench in the case of Nani gopal v. Bhim Char an 59 C. W. N. 688 where on facts similar to those now under consideration by us the Division bench held that as the entry to the room was made by the accused in the absence of any person, it was not attended by criminal force or show of force or criminal intimidation which could justify an order of restoration in favour of the complainant under section 522 (1) of the Criminal Procedure code. 9. MR. Banerji appearing on behalf of the complainant opposite party on the other hand relies on the full Bench decision of this Court in the case of Mohini v. Harendra, 31 I. L. R. Calcutta 691. This Pull Bench decision, however, does not militate against the above construction of section 522 (1) of the Criminal Procedure Code and as a matter of fact the said fact was made clear by Harris C. J., in the case of sambhu Roy -v- Moti Khatik (Supra)when it was pointed out that in the case under consideration by the Full bench the person dispossessed had been physically assaulted and chased away. The two decisions in the case of Baran kutti v. C. I. Raman, A. I. R. 1949 madras 191 and Mahabir and Ors.-v- Rex. A. I. R. 1949 Allahabad 228, relied on by Mr. Banerji similarly do not derogate from the view taken by this court. The two decisions in the case of Baran kutti v. C. I. Raman, A. I. R. 1949 madras 191 and Mahabir and Ors.-v- Rex. A. I. R. 1949 Allahabad 228, relied on by Mr. Banerji similarly do not derogate from the view taken by this court. In the Madras case, it was found that there was show of force when the accused persons came prepared to meet the resistance though it was held that whether the accused met actually with any resistance or not was beside the point. Similarly, in the allahabad case, the Court found use of criminal force immediately after the act of trespass which again was found to be an integral part of the act of dispossession. It was observed that criminal force need not be an ingredient of the offence but may include an act done was such force simultaneously or immeditely after. 10. THE above Allahabad decision had more guilty been explained by the Mysore High Court in the case of alakal Seiappa -v- State of Mysore a. I. R. (1966) Mysore 24, also relied on by Mr. Banerji. In this case, the mysore High Court in interpreting section 522 of the Code of Criminal procedure affirmed the principle that the accused must disposes the person in possession of the immovable property by force, show of force or criminal intimidation in order to attract the said section. Though it was observed that if the commission of an offence is immediately or shortly afterwards followed by force or snow of force or intimidation the case will be concerned by this section. Referring to the Allahabad decision it was observed : "it is, however, clear, from these observations that the commission of the offence and the force, show of force or intimidation referred to in this section must be so connected as to constitute more or less a single event or a single transaction and the dispossession must be a direct consequence of the force, show of force or intimidation. " On the facts of the case before the Mysore high Court, the dispossession was attended with force and the accused were convicted of an offence under section 323 of the Indian Penal Code along with the offence of trespass under section 447 thereof. Mr. " On the facts of the case before the Mysore high Court, the dispossession was attended with force and the accused were convicted of an offence under section 323 of the Indian Penal Code along with the offence of trespass under section 447 thereof. Mr. Banerji next relied on a single Bench decision of the Bombay High Court in the case of Francis D' souza v. 15 E. L. A. Gamejro, A. I. R. 1960 Bom. 139. In this case, the Bombay High Court: only adopted and applied the principle laid down by the Allahabad High Court in the case of Mahabir referred to hereinbefore. On facts, it was found that shortly after the actual dispossession the plaintiff was put to wrongful restraint under threat of assault and such restraint was found to constitute a part of the same transaction of dispossession and since it was attended by show of force section 522 of the Code was held to be applicable. This decision, however, had taken note of the earlier division Bench decision in the case of narayan -v- Visaji, I. L. R. 23 Bombay 494 where the Bombay High Court took the same view as this Court in the ease of Sambhu Roy -v- Moti referred to hereinbefore. The decision of the Patna High Court in the case of rajbanshi Thakur -v- Chandni Jha, a. I. R. (1951) Patna 207 relied am by mr. Banerji does not lay down any principle which can be said to derogate from the view taken by this Court and relied on by Mr. Banerji. On facts, the patna High Court found that the offence of which the accused was convicted was attended by criminal force or show of criminal force and by such force or show of force the complainant was dispossessed of the immovable property. On the other hand, the view expressed by this Court in the two decisions referred to hereinbefore and relied on by Mr. Banerji had consistently been approved not only by many of the decisions referred to by mr. Banerji but also by the Lahore high Court in the case of Ram Chand-v- The Emperor, A. I. R. (1939) Lahore 184 where on facts more or less similar to those in the present case invocation of Section 522 was held to be illegal. Banerji had consistently been approved not only by many of the decisions referred to by mr. Banerji but also by the Lahore high Court in the case of Ram Chand-v- The Emperor, A. I. R. (1939) Lahore 184 where on facts more or less similar to those in the present case invocation of Section 522 was held to be illegal. Similar view was expressed by the madras High Court in the case of aswatha Narayan -v- Muneppa, A. I. R. (1943) Madras 257 and by the Patna high Court in the case of Jagadish -v-Rajendra Nath, A. I. R. (1964) Patna 553. This Court too reaffirmed the earlier view in the case of Sukdhis khatick -v- State I. L. R. 1975 (1) Calcutta 306. Applying the above principle in the present case, it appears to us that the order for restoration of possession under section 522 (1) of the code had not been made in accordance with law. We have already pointed out that the learned Magistrate was not conscious of the requirement of section 522 (1) and he made the order for restoration more or less mechanically as soon as the petitioner was convicted of offences under sections 453 and 448 of the Indian Penal Code without at all adverting to the question whether such offences were or were not attended by criminal force, show of force or criminal intimidation as against any person. So far as the learned Judge in the Court of Appeal below is concerned, he took the view that when the criminal cause trespass was committed by breaking open the padlock even in the absence of the complainant it must be said that the offence was attended by criminal force which would attract section 522 (1) of the Code. He, however, failed to appreciate that such force must be as against a person and not against the property as might have been used for breaking open the padlock. We have ourselves gone through the entire evidence to find out if the offences of which the petitioner was convicted were attended by force, show of force or criminal intimidation and where the dispossession was the result of any such force, show of force or criminal intimidation. We, however, find no such evidence. We have ourselves gone through the entire evidence to find out if the offences of which the petitioner was convicted were attended by force, show of force or criminal intimidation and where the dispossession was the result of any such force, show of force or criminal intimidation. We, however, find no such evidence. P. W. 6, Rabindra said that the accused broke the lock of the room with the help of an iron like thing but he does not speak of any threat of assault by the accused at the time of such breaking of the lock. P. W. 7, said that the accused broke open the door of the shop and took forcible occupation but he too does not speak of any force, or show of force as against any person. On the other hand, he admits that though many people assembled there nobody asked the accused any question. Though one or two witnesses contrary to the evidence of P. W. 6 has spoken of the accused not listening to the objection raised by them their evidence also do not establish the fact that in doing so the accused used any force or show of force as against them or did criminally intimidate them. In such circumstances, we cannot but accept the contention of Mr. Roy that in the present case there is no material to show that the offence committed by the accused petitioner was attended by force, show of force or criminal intimidation against any person or that the dispossession was the result of any such force, show of force or criminal intimidation. That being the position, section 522 (1) of the Code could not have been invoked as invoked by the courts below in making an order for restoration of possession in favour of the complainant/opposite party. 11. MR. Banerji had lastly contended that when the complainant I opposite party had admittedly been wrongfully disposed from the shop rooms as concurrently found by the two courts below, the complainant opposite party must at least be held to be entitled to restoration of possession in the interest of justice. He relies on the decision in the case of K. Rangarajain v. R. P. Gramani, 1971 Criminal Law journal 1349 to support this contention of his. He relies on the decision in the case of K. Rangarajain v. R. P. Gramani, 1971 Criminal Law journal 1349 to support this contention of his. But unfortunately, the full Bench of this Court in I. L. R. 31 calcutta 691 (Mohini v. Harendra), had clearly laid down that there is no scope of any application of the principle of interest of justice if the case does not come within the four corners of Section 522 (1) of the Code. That being the position, though we uphold the order of conviction passed under section 453 of the Indian Penal Code, we set aside the order for restoration of possession made under section 522 (1)of the Code of Criminal Procedure. 12. IN the result the Rule succeeds in part and is made absolute by setting aside the order for restoration made under section 522 (1) of the code of Criminal Procedure. Petitioner's conviction under section 453 of the Indian Penal Code being upheld, we confirm the sentence passed with this modification that the sentence of for 15 days which has been passed as on default of payment of fine will not run concurrently as such sentences must be consecutive. Period of detention while under investigation or trial must, however, be set off against the sentence of imprisonment. The petitioner will now surrender to his bail bond to serve out the rest of the sentence under section 453 of the Indian Penal Code.