M. K. SHAH, J. ( 1 ) THIS criminal revision application filed by the original accused No. 1 arises out of criminal proceedings instituted against three accused persons in the court of the learned Metropolitan Magistrate 13 Court Ahmedabad for the offences under secs. 448 451 read with sec. 114 of the Indian Penal Code wherein the learned Metropolitan Magistrate by his order dated 22/01/1979 acquitted all the accused of the offences punishable under sec. 451 of the I. P. C. He also acquitted accused Nos. 2 and 3 of the offence punishable under sec. 448 of the I. P. C. He however convicted accused No. 1 that is the present petitioner for the offence under sec. 448 of the I. P. C. and awarded sentence of S. I. for one year. The said accused carried the matter further up in appeal to the Court of the City Sessions at Ahmedabad and the learned City Sessions Judge at Ahmedabad by his order dated 23/07/1979 partly allowed the appeal confirming the order of conviction passed against the said accused. He however modified the order of sentence and substituted the sentence of imprisonment till the rising of the court and fine of Rs. 200. 00 in default further S. I. for 15 days in place of the original sentence of one years S. I. awarded by the learned Magistrate. He also passed a further order under the provisions of sec. 4 6 (2) of the Code of Criminal Procedure (the Code) for restoration of possession of the premises in respect of which the offence was committed by the said accused to the applicant Smt. Maltidasji who represented the deceased-original complainant Venkateshwardasji Gurumadhavdasji who had died in the meanwhile. It is this order of the learned City Sessions Judge which is the subject matter of challenge in the revision application preferred by the petitioner (Original accused No. 1.) ( 2 ) BUT Mr. Patel has been on firmer ground with regard to the challenge concerning the order passed by the lower appellate court under the provisions contained in sec. It is this order of the learned City Sessions Judge which is the subject matter of challenge in the revision application preferred by the petitioner (Original accused No. 1.) ( 2 ) BUT Mr. Patel has been on firmer ground with regard to the challenge concerning the order passed by the lower appellate court under the provisions contained in sec. 456 of the Code the material portion whereof so far as it is relevant for the purpose of the question which requires decision in this revision application reads thus: (1) When a person is convicted of an offence attended by criminal force or show Or force or by criminal intimidation and it appears to the court that. by such force or show of force or intimidation any person has keen dispossessed of any immovable property the court may If it thinks fit order that possession of the same be restored to that person after evicting by force if necessary any other person who may be in possession of the property. ON a plain reading of this section it becomes clear that two conditions are to be fulfilled before any such order for restoration of possession can be passed by the court. it may be noted that by sub-sec. (2 ). the court of appeal confirmation or revision is clothed with the power to make any such order and in that sense the lower appellate court had jurisdiction to consider the application for restoration of possession and to decide whether the order of possession should be raised under the said section or not. But before such an order can be passed it has to be shown from the material on record that the commission of the offence for which the accused is convicted is attended by criminal force or show of force or by criminal intimidation Again it has also to appear to the court that any person was dispossessed of an immovable property by such force or show of force or intimidation. ( 3 ) MR. Vaidya the learned Public Prosecutor appearing for the State draws my attention to the evidence of the complainant. In examination-in-chief as it evident from the statement made in para 2 the only case put forward by the complainant is that in his presence inspite of his protest accused Nos. ( 3 ) MR. Vaidya the learned Public Prosecutor appearing for the State draws my attention to the evidence of the complainant. In examination-in-chief as it evident from the statement made in para 2 the only case put forward by the complainant is that in his presence inspite of his protest accused Nos. 1 and 2 broke open the staple affixed to the room in which formerly accused No. 1 was stayingthere is no allegation whatsoever that the accused when they were indulging in the said act of breaking open the staple fixed to the room did so by using any force or show of force or by intimidation. But Mr. Vaidya draws my attention to the statement given cut by the complainant in cross-examination in para 6 which reads thus :i attempted to stop the accused from breaking open the staple but they did not heed as Mr. Patel rightly submits this evidence by no stretch of imagination can be construed to show that the said act of trespass was done by the accused by force or show of force or by criminal intimidation. The only thing which happened according to the complainant was that he was present when the accused were engaged in the act of breaking open the staple that he protested and still they proceeded further with the said act and broke open the staple. In cross-examination he stated that inspite of the attempt on his part to stop them from doing the said act they did not heed and pursued in doing so. In cross-examination he stated that inspite of the attempt on his part to stop them from doing the said act they did not heed and pursued in doing so. In the statement made in para 6 of the cross-examination as read along with the previous statement made in para 2 the complainant does not specify as to what particular over act or acts was or were done by him in attempting to stop the accused from breaking open the staple and in this view of the matter it would be travelling in the realm of imagination as was suggested by the learned public prosecutor to come to the conclusion that the complainant must have physically tried to stop the accused either by catching hold of them or by placing himself between the door and the accused in an attempt to stop the accused from committing the said act and that the accused must have thereafter either pushed the complainant or given him threats or made a show of force whereupon the complainant must have left facilitating the work of the accused. There is no warrant for any such conclusion in the absence of any material on record to that effect. As a matter of fact as the evidence of the complainant shows at the time when he left the place the act of trespass had not been completed but was in the process of being committed. The room had not been opened. Only the staple was broken and at that stage instead of taking any further steps to stop them from committing trespass or giving any resistance to them or trying to enter the premises he rushed to the police station and lodged his compl- aint. It is true that when he returned later he did find that accused Nos. 1 and 2 had entered the room and that way they were in possession. But even at that time it is not his case that he tried to re-enter and that accused resisted or gave any threats or by any force he was stopped from re- entering. There is therefore no case worth the name put forward by the complainant to show that the offence of trespass or act of dispossessing him was done by the accused by force or show of force or by criminal intimidation. There is therefore no case worth the name put forward by the complainant to show that the offence of trespass or act of dispossessing him was done by the accused by force or show of force or by criminal intimidation. ( 4 ) IT has again to be noted that in the complaint which is lodged the complainant had even failed to state that inspite of his protest the staple was opened. This story was put forward by him for the first time when he gave evidence. ( 5 ) THIS shows that the learned Sessions Judge was patently in error when he indulged in the process of imagination in observing that it was quite natural that when the original complainant was present at that time he would have raised protest and would have made an attempt to prevent the accused and others from entering into the premises and that therefore from the evidence of the original complainant it becomes clear that there was at least show of force by the appellants who entered into possession after breaking the staple. As stated earlier there is no warrant for any such conclusion and the order of restoration passed on such a finding unsupported by any evidence or in ignorance of the evidence on record cannot be sustained. ( 6 ) MY attention was drawn to a decision by a Division Bench of this court in Yashinkhan Ahmedkhan and Others v. Huseinbhai Rajabhai and Others 19 G. L. R. 175. There while construing the provisions of sec. 456 the court did observe that Dispossession does not become complete till the complainant appears on the scene and has to go away inspite of his protest because his entry has been prevented by use of criminal force or show of force or by criminal intimidation. It is at that stage that dispossession would become complete. In the instant case there is no such case of the complainant being prevented from re-entering by use of any criminal force or show of force or by criminal intimidation and therefore applicability of sec. 456 of the Code would not come into play. It is at that stage that dispossession would become complete. In the instant case there is no such case of the complainant being prevented from re-entering by use of any criminal force or show of force or by criminal intimidation and therefore applicability of sec. 456 of the Code would not come into play. On the contrary as observed at page 187 after referring to the case of a person who is out of possession and after distinguishing between the two concepts conveyed by expression dispossessed and out of possession the court has made the following significant observations:if such a person who is out of possession remains passive for a long time and does not exercise his right of re-entry soon after he comes to know of the trespass he can be said to have been dispossessed as a result of his inaction. If such a person on the contrary exercises his right to re-enter upon the property in a peaceful manner but in doing so is resisted and his re-entry is made impossible by use of criminal force or show of force or criminal intimidation it is at that stage that the said person can be said to be dispossessed of the property. Similarly in another case if a person upon whose property another person has committed trespass instead of exercising his right to re-enter upon the property by telling the trespasser to go out goes to the court and files a complaint of trespass it is clear that he is a person who is not prepared to exercise his right of the entry by peaceful means and is dispossessed but not by use of criminal force or show of force or criminal intimidation. THE case of the complainant falls at the most in the last mentioned category in these observations. It is not his case that he made any atte- mpt to re-enter by telling the trespassers to go out and that the same was resisted and his re-entry was made impossible by use of criminal force or show of force or criminal intimidation. The only question therefore relevant in the present case would he as to whether the act of trespass which was committed as also the act of dispossession done was attended or accompanied by use of force show of force or criminal intimidation? The only question therefore relevant in the present case would he as to whether the act of trespass which was committed as also the act of dispossession done was attended or accompanied by use of force show of force or criminal intimidation? The answer is obviously in the negative or in any event it can be safely said that there is no evidence on record justifying such a conclusion and unless the prosecution establishes these facts which are in the nature of conditions precedent to the exercise of jurisdiction under sec. 456 of the Code the prosecution would not be entitled to any order for restoration of possession by virtue of the provisions contained in the said section. ( 7 ) IT is therefore obvious that the learned City Sessions Judge crept into a grave error in entertaining the said application Ex. 13 and in exercising jurisdiction under sec. 456 (2) of the Code by ordering restoration of possession. ( 8 ) RULE absolute to the extent that the order passed under sec. 456 of the Criminal Procedure Code directing restoration ox possession by the petitioner to the applicant Smt. Maltidasji that is the receiver appointed by the court is set aside while confirming the order of conviction and sentence passed by the learned City Sessions Judge in criminal appeal No. 36 of 1979. .