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1982 DIGILAW 114 (MAD)

Manickammal v. T. V. Balasundaram Chettiar

1982-03-12

M.N.MOORTHY

body1982
ORDER : In this case, the two petitioners ask for a revision of the appellate order of the learned VI Additional Sessions Judge, Madras, in C.A. No. 390 of 1979, convicting them for an offence under section 448, Indian Penal Code, and sentencing them to pay a fine of Rs. 150 each in default to suffer simple imprisonment for one month, and also the order directing possession of the house bearing Door No. 48, Perumal Koil Garden,V Street,Madras-1 to be restored to P.W. 1. Originally, they were tried before the Third Metropolitan Magistrate, George Town, Madras, in C.C. No. 15906 of 1978, and they were convicted for the offence under section 448, Indian Penal Code, and sentenced to pay a fine of Rs. 300 in default to suffer simple imprisonment for three, months each, in addition to the order under section 456, Criminal Procedure Code, directing possession of the house in question to P.W. 1. 2. The case against the petitioners in a nut shell is as follows: The house bearing Door No. 48, Perumal Koil Garden, V Street,Madras-1, belongs to Kesavaperumal Devasthanam. The superstructure is owned by P.W. 1. P.W. 1 was paying rent for the land to the Devasthanam. He constructed the superstructure after getting the necessary approval of the plan by the Corporation of Madras. He had let the house for rent to the husband of the first petitioner on a monthly rent of Rs. 20. After the death of the first petitioner's husband, the first petitioner and her daughter, viz., the second petitioner, were occupying the said house. As they were in arrears of rent and also as the premises was required for the personal occupation of P.W. 1, a petition in H.R.C. No. 801 of 1975 was filed by P.W. 1, before the VIII Judge, Court of Small Causes, Madras. The petitioners were ordered to be evicted. On 2nd November, 1978, P.W. 2, bailiff of the Court of Small Causes, Madras, went to the said premises along with P.W. 3, Head Constable, attached to C-3 Police Station, to deliver possession of the house, after removing the petitioners, armed with the warrant, Exhibit P-1. P.W. 3, after removing the household articles and after evicting the first petitioner handed over possession of the house to P.W. 1. P.W. 1 took possession of the house by putting a lock. 3. P.W. 3, after removing the household articles and after evicting the first petitioner handed over possession of the house to P.W. 1. P.W. 1 took possession of the house by putting a lock. 3. On 4th November, 1978, when P.W. 1 went to the house, he found the lock with which he had locked the house broken and the two petitioners occupying the house. P.W. 1 gave a complaint to C-3 Police station on 5th November, 1978, and as he was directed to give a complaint in Court, he filed a private complaint before the III Metropolitan Magistrate, George Town, Madras. The delivery of the possession was duly reported to the VII Judge, Court of Small Causes, Madras. by P.W. 2 on 3rd November, 1978 and it was recorded and the execution proceedings were terminated. 4. When the petitioners were examined with reference to the incriminating circumstances appearing against them in the evidence, the first petitioner stated that the house bearing Door No. 48, Perumal Koil Garden,V Street,Madras, belonged to her husband, that it was built by him, that it was never taken on tenancy from anybody and that they were not in arrears of rent to any person. She denied that, on 2nd November, 1978, they were evicted from the house of the bailiff with the aid of the police and that possession was handed over to P.W. 1, the complainant. The second petitioner's statement was also in the same terms as of the first petitioner. They examined one witness on their behalf. D.W. 1 was once a Labour Union leader, who knew the petitioners for the last thirty-five years. He was a tenant in the house of the petitioners and the house belonged to the husband of the first petitioner. He, was a man of the locality and if there was any trouble he used to settle the matter. If the bailiff, as alleged by the prosecution, had evicted the petitioners from the house, they would have reported the matter to him. The petitioners continued to reside in the same house. 5. The evidence of P.Ws. He, was a man of the locality and if there was any trouble he used to settle the matter. If the bailiff, as alleged by the prosecution, had evicted the petitioners from the house, they would have reported the matter to him. The petitioners continued to reside in the same house. 5. The evidence of P.Ws. 1 to 3 is clear that on the day in question they went to the house and, as the first petitioner refused to vacate the house, the household articles were removed with the, help of persons engaged by P.W. 1 and possession was delivered to P. W. 1 and the door was locked by P.W. 1, after taking possession. Exhibit P-1 is the mahazar for delivery of possession of the house made by P.W. 2 to P.W. 1. That apart, the learned VIII Judge, Court of Small Causes, Madras, has recorded the delivery of possession of the house to P.W. 1, on a report made in execution of the warrant Exhibit P-1. The evidence of D.W. 1, that there could not have been any dispossession as it was not reported to him by the petitioners is not acceptable.. In these circumstances, it is futile on the part of the petitioners to contend that they were not evicted at all from the house and that they continued to be in occupation. The Courts below have correctly appreciated the evidence of P.Ws. 1 to 3 and I have no reason to take a different view in a revision. In these circumstances, it is futile on the part of the petitioners to contend that they were not evicted at all from the house and that they continued to be in occupation. The Courts below have correctly appreciated the evidence of P.Ws. 1 to 3 and I have no reason to take a different view in a revision. In fact, the conviction of the, two petitioners for an offence under section 448, Indian Penal Code, is not seriously challenged before me in view of the following observations made by their Lordships of the Supreme Court in Mathuri and others v. State of Punjab1: “In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the person entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances, including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something else then the causing of such intimation, insult or annoyance, being the dominant intention which prompted the entry.” But the learned Counsel appearing for the petitioners contended that the order made by the Courts below under section 456, Criminal Procedure Code, directing possession of the house, bearing Door No. 48, Perumal Koil Garden,V Street,Madras-1 to be restored to P.W. 1, is not proper and is liable to be set aside. He contended that the alleged breaking open of the lock of the house and effecting entry, dispossessing P.W. 1 would not amount to commission of an offence attended by criminal force to come within the mischief of section 456, Criminal Procedure Code. He contended that the alleged breaking open of the lock of the house and effecting entry, dispossessing P.W. 1 would not amount to commission of an offence attended by criminal force to come within the mischief of section 456, Criminal Procedure Code. In support of his contention, my attention was drawn to a decision reported in Batakala Pottalavadu and another, In re2, wherein the learned Judge held that, as there was no finding that criminal force had in fact been used, or that complainant had been dispossessed of the land by it, and as criminal force was not an ingredient of the offence for which the accused had been convicted, the order was made without jurisdiction and it was set aside. 6. The present section 456, Criminal Procedure Code, has undergone reshuffling of words, but, yet, it is more or less identical in all material particulars with the old section 522, Criminal Procedure Code. The object of this section is to prevent any person gaining wrongful possession of a property by his own unlawful and forcible acts. It is envisaged to thrant might is right theory and to show that the arm of law is long enough to reach the man who flouts it and relies upon physical force to achieve his ends. As has been held by Horwill, J., in Berankutti Haji v. C.I. Raman and others1 the object of section 522, Criminal Procedure Code (old section) is to prevent any person gaining wrongful possession of land by his own unlawful and forcible acts, and there is no reason why it should be interpreted in a manner favourable to the Criminal. 7. As has been held by Horwill, J., in Berankutti Haji v. C.I. Raman and others1 the object of section 522, Criminal Procedure Code (old section) is to prevent any person gaining wrongful possession of land by his own unlawful and forcible acts, and there is no reason why it should be interpreted in a manner favourable to the Criminal. 7. A decision of K.N. Mudaliar, J., reported in Palani Pannadi v. Nanjammal2 is placed before me wherein the following observation of Byers, J., in Narayana v. Muniappa3 is extracted by the learned Judge: “Although there is much to be said for the view that there is no difference in principle between dispossession by effecting a forcible entrance in the absence of the owner and dispossession of the owner himself by the use of force to him, I must hold that the section applies only to criminal force used against the person.” Interpreting the said observation of Buyers, J., the learned Judge held that it was not confined to the scope of the “use of force” as defined in section 350, Indian Penal Code, to the person dispossessed in his absence. It was strenuously contended that the decision reported in Palani Pannadi v. Nanjammal2 had not properly interpreted the decision of Byers, J., K.N. Mudaliar, J., has however held that, where the accused has broke open the lock and entered the house, though no criminal force was used against the person in the occupation of the house, still section 522 (1) , Criminal Procedure Code, corresponding to the new section 456, Criminal Procedure Code, is applicable. 8. The Code of Criminal Procedure, does not define “criminal force” or “show of force”. “Use of force” is defined in section 349, Indian Penal Code, and “use of criminal force” is defined in section 350, Indian Penal Code. Therefore, criminal force or show of force, as contemplated in section 456, Criminal Procedure Code, could be ascribed the same meaning as they appear in the Indian Penal Code. “Use of force” is defined in section 349, Indian Penal Code, and “use of criminal force” is defined in section 350, Indian Penal Code. Therefore, criminal force or show of force, as contemplated in section 456, Criminal Procedure Code, could be ascribed the same meaning as they appear in the Indian Penal Code. In this regard, it is useful to refer to the decision of Maharajan, J., in N. Abdul Nodi v. Maju Bi4 wherein the learned Judge observed: “When the respondents accused effected trespass upon the house belonging to the complainant in his absence, they clearly committed a crime of which, they have been convicted; and they committed the crime using violence, that is to say, by breaking open the door and effecting entry there into.” The learned Judge further observed that there is nothing in the Code of Criminal Procedure to show that, when the Legislature used the expressions, “criminal force” or “show of force” in section 522 , Criminal Procedure Code, it intended to give them the connotation which the authors of the Indian Penal Code , had given for the purpose of that Code, and hence ordinary dictionary meaning could also be resorted to, as there is no reason why section 522, Criminal Procedure Code, should be interpreted in a manner favourable to the criminal. According to Chamber's Twentieth Century dictionary, “force” means - “strength power, energy, efficacy, validity, influence ……..” and “criminal” means - “relating to crime, guilty of crime, violating laws.” In other words, application of criminal force means application of power or strength for a purpose which is criminal in character, regardless of the fact whether it is used against a person or a thing. 9. The reasoning of Maharajan, J., commends itself to me and I prefer to follow his decision. Holding this view, I must decline to interfere with the order directing possession of the house bearing Door No. 48, Perumal Koil Garden,V Street,Madras-1, to be restored to P.W. 1. In the result, there is no ground to interfere in the order of the lower Court and the criminal revision petition is dismissed. R.S.R. ----- Revision petition dismissed.