FAKIRBHAI CHHAGANLAL v. RANJIT RATILAL — 1982 DIGILAW 142 (GUJ)

V. V. BEDARKAR, J. ( 1 ) BOTH these petitions are filed challenging the same order passed by the learned Additional City Sessions Judge Ahmedabad on 27-5-1981 by which he dismissed Criminal Revision Application no. 42 of 1981 holding that the recession application does not lie. While dismissing the said revision application though he held that revision application is not maintainable observed that point no. 2 raised by him Whether the learnt Metropolitan Magistrate has erred in ordering the restoration of possession (under sec. 456 of the Cr. P. C.) to the complainant? does not survive for consideration and if necessary in the affirmative. ( 2 ) BEING aggrieved by the said order of the learned Additional City Sessions Judge pertaining to point no. 2 raised by him in the affirmative original complainant Ranjithbhai Ratilal has come to this Court by way of Criminal Revision Application no. 449 of 1981 and original accused Fakirbhai Chhaganlal Bhagat who had filed the revision application before the learned Additional City Sessions Judge has come to this Court by way of Special Criminal Application no. 695 of 1982 with a grievance that the learned Sessions Judge has erred in holding that the revision was not maintainable. ( 3 ) SO far as the grievance of original complainant Ranjitbhai Ratilal in the revision petition is concerned I must say that it is quite justified. If the Court comes to the conclusion that it has no jurisdiction to hear a particular matter it is not open for that Court to give a finding on a particular disputable point wherein the party against whom that finding is given has no scope to approach any higher Court except by way of present type of revision petition with a request to expunge the finding. It is therefore necessary that when a Court is having no jurisdiction to any particular type of proceeding it should desist from giving a finding on a particular disputable point. If the matter would have been this much. I would have allowed Criminal Revision no. 449 of 1981. But the matter does not rest here. ( 4 ) LIKEWISE I also find that the grievance of Fakirbhai Chhaganlal Bhagat (original accused) who has come by way of Special Criminal Application no. 695 of 1982 is also justified. The learned Additional City Sessions Judge has committed a mistake in holding that the revision was not maintainable. 449 of 1981. But the matter does not rest here. ( 4 ) LIKEWISE I also find that the grievance of Fakirbhai Chhaganlal Bhagat (original accused) who has come by way of Special Criminal Application no. 695 of 1982 is also justified. The learned Additional City Sessions Judge has committed a mistake in holding that the revision was not maintainable. ( 5 ) IN order to consider the maintainability or otherwise of the revision petition it seems the learned Sessions Judge merely considered that the revision application would not be maintainable since appeal would lie under sec. 454 of the Code of Criminal Procedure 1973 (here in after referred to as the Code) and therefore be concluded that as under the provisions of sec. 399 and 401 (4) of the Code where an appeal lies and no appeal is brought no proceeding by way of revision would be entertained at the instance of a party who could have appealed. ( 6 ) MR. K. B. Padia learned Advocate appearing on behalf of original accused Fakirbhai Chhaganbhai Bhagat in both the matters rightly drew my attention to the provision of sec. 454 of the Code which is as follows:"454 (1) Any person aggrieved by an order made by a Court under sec. 452 or sec. 453 may appeal against it to the Court to which appeals ordinarily lie from convictions by the former Court. (2) On such appeal the appellate Court may direct the order to be stayed pending disposal of the appeal or may modify alter or annual the order and make any further orders that may be just. (3) The powers referred to in sub-sec. (2) may also be exercised by a Court of appeal confirmation or revision while dealing with the case in which the order referred to in sub-sec. (1) was made". Now though under this sec. 454 of the Code no mention is made of sec. 454 of the Code provisions of sec. 456 are made applicable to sec. (2) may also be exercised by a Court of appeal confirmation or revision while dealing with the case in which the order referred to in sub-sec. (1) was made". Now though under this sec. 454 of the Code no mention is made of sec. 454 of the Code provisions of sec. 456 are made applicable to sec. 454 Sec. 456 is as follows:"456 When 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 intimidation any person has been disposed of any immovable property the Court may if it thinks fit order that possession of the same to be restored to that person after evicting by force if necessary any other person who may be in possession of the property":provided that no such order shall be made by the Court more than one month after the date of the conviction. (2) Where the Court trying the offence has not made an order under sub-sec. (1) the Court of appeal confirmation or revision may if it thinks fit make such order while disposing of the appeal reference or revision as the case may be. (3) Where an order has been made under sub-sec. (1) the provision 5 of sec 454 shall apply in relation thereto as they apply in relation to an order sec. 453. (4) No order made under this section shall prejudice any right or interest to or in such immovable property which any person may be able to establish in civil suit"it must be noted that the main dispute before me is on the strength of the provision of sub-sec. (1) of sec. 456 of the Code as to whether the offence for which the original accused was convicted was an offence attended by criminal force or show of force or by criminal intimidation. I shall discuss that aspect at a later stage. ( 7 ) IN sec. 456 (2) of the Code there is a provision that where an order has been made under sub-sec. (1) (i. e. passing of an order of restoration of possession) the provisions of sec. 454 of the Code shall apply in relation thereto as they apply in relation to an order under sec. 453. Under sub-sec. (3) of sec. 456 (2) of the Code there is a provision that where an order has been made under sub-sec. (1) (i. e. passing of an order of restoration of possession) the provisions of sec. 454 of the Code shall apply in relation thereto as they apply in relation to an order under sec. 453. Under sub-sec. (3) of sec. 454 of the Code powers referred to in sub-sec. (2) thereof may be exercised by a Court of appeal confirmation or revision while dealing with the case in which the order referred to in sub-sec. (1) of sec. 454 of the Code. ( 8 ) NOW under sub-sec. (1) of sec. 454 of the Code an appeal is provided against the orders under sec. 452 or sec. 453 of the Code. Under sub-sec. (2) of sec. 454 of the Code the Appellate Court has power to direct the order to be stayed pending disposal of the appeal and also to modify alter or annul the order and make any further orders that may be just. Therefore under sub-sec. (3) of sec. 454 of the Code there is power with the Court exercising the jurisdiction of appeal confirmation or revisional Court to pass an order under sub-sec (2) of sec. 454 of the Code. ( 9 ) IT is not in dispute that the Sessions Court was exercising the powers of a revisional Court. It should be noted that so far as the facts are concerned complaint was filed by Ranjitbhai Ratilal against some five persons. After hearing the case learned Metropolitan Magistrate 5 Court Ahmedabad acquitted four persons but convicted original accused Fakirbhai who is the landlord of the complainent. The case was filed for offences under sec. 451 341 426 of the Indian Penal Code. accused nos. 2 to 5 were acquitted of all the offences while accused no. 1 Fakirbhai was acquitted for the offences under sec. 451 and 426 of the Indian Penal Code but he was convicted for the offence under sec. 341 of the Indian Penal Code and sentenced to suffer simple imprisonment for one day and to pay a fine of Rs. 200. 00 and in default of payment of fine to undergo further simple imprisonment for 20 days. ( 10 ) UNDER the provisions of sec. 341 of the Indian Penal Code and sentenced to suffer simple imprisonment for one day and to pay a fine of Rs. 200. 00 and in default of payment of fine to undergo further simple imprisonment for 20 days. ( 10 ) UNDER the provisions of sec. 376 (b) of the Code no appeal lies if a Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or of fine not exceeding two hundred rupees. Therefore as this was an order of sentence passed by the learned Metropolitan Magistrate appeal did not lie against the order of conviction and sentence but revision was permissible and therefore revision application was filed. The entire revision application was filed in a composite way against the order of conviction and sentence as well as against the order of restoration and possession because after the pronouncement of order of sentence the learned Metropolitan Magistrate also passed the final order by the last line that the complainant should be handed-over possession of Census not 1420/1 which was the property in disputes ( 11 ) THE learned Additional City Sessions Judge also in the initial introduction of facts has specifically observed that the revision application is directed against the conviction of Fakirbhai Chhaganlal Bhagat (original accused) under sec. 341 of the Indian Penal Code and the order of restoration of possession under sec. 456 of the code. Therefore the revision application was maintainable because it was a revision against the order of conviction and sentence. At the time of argument before the learned Sessions Judge the point of conviction and sentence as not pressed but only the point of restoration of possession was pressed. However as the order of conviction and sentence was not pressed the learned Sessions Judge was persuaded to believe that now the revision would not lie. Even though I am going to refer to the decision of this Court in Yashinkhan Ahmedkhan v. Hushanbhai Rajabhai 19 Gujarat Law Reporter 175 in details at a after statement observe that that decision was cited before the learned Sessions Judge also and if he would have applied his mind to the facts of that case he would have known that such a revision application would be maintainable even after the Advocate for the accused did not press the point for conviction and sentence of the accused. ( 12 ) THE facts in the case of Yashinkhan (Supra) were that an order was passed by the Metropolitan Magistrate restoring the possession to the original complainant under sec. 456 of the Code. As per the facts mentioned in para 2 of that case being aggrieved by that order of conviction as sell as the order for restoration the accused went in revision to the Sessions Court by filing Criminal Revision Application no. 55 of 1976 In that case the learned City Sessions Judge by his order dated 20 allowed that revisional application in so far as the order for restoration of possession passed by the learned Magistrate under sec. 456 of the Code was concerned. The facts of that case also clearly show that the accused did not question their conviction and order of sentence in that revision. Still however that revision was entertained and the learned City Sessions Judge set aside the order of restoration. Therefore these facts clearly show that revision application was maintainable and that decision was very much before the learned Sessions Judge and in spite of that he could be led away in holding that the entire revision application was not maintainable. ( 13 ) IT should be noted that under sec. 454 (3) read together with sec. 454 (2) and sec. 456 (3) of the code power to modify alter or annul the order under sub-sec. (1) of sec. 456 of the Code is there to the Court who is exercising the power of revision while dealing with the (are in which the order referred to in sub-sec. (1) of sec. 454 of the Code was made meaning thereby even under sec. 456 (1)of the Code by implication as per the provisions of sub-sec. (3) of sec. 456 of the Code. Therefore the Sessions Court being a Court of revision had the jurisdiction to modify alter or annual the order passed under sec. 456 (1) of the Code and when a composite revision application was filed the Court had jurisdiction to consider the question of restoration of possession also in that revision application. Therefore precisely this find in of the lateen (i Additional City Sessions Judge that revision was not maintainable is also not justified. 456 (1) of the Code and when a composite revision application was filed the Court had jurisdiction to consider the question of restoration of possession also in that revision application. Therefore precisely this find in of the lateen (i Additional City Sessions Judge that revision was not maintainable is also not justified. ( 14 ) IN the impugned order at one stage by considering the decision in case of Yashinkhan (Supra) in para 8 the learned Sessions Judge rightly considered that in that decision it has been held that dispossession does not become complete till the complainant appears on the scene and has to go away in spite of his protest because his entry has been prevented by use of criminal force show of force or criminal intimidation. He also observed that it has been further held that it is at stage that the dispossession would become complete. Then he also considered the decision of this Court in Criminal Revision Application No. 466 of 1979 which followed the case of Yasinkhan (Supra ). Still however in para 9 again he was led away to believe that at the time of the incident complainant was not present and it appears from the deposition that three were given by the accused not at the time of committing trespass or depossessing the accused but thereafter. This again has led him to an error because the decision of this Court in case of Yashinkhan (supra) clearly shows that the real dispossession will be at the time when threats are given or complainant is restrained when he actually goes after the first act of trespass is committed. In Yashinkhans case (supra) it has been specifically held dis-agreeing with the observations of this Court in Hemaji Tarsanji v. State 2 Gujarat Law Reporter 240 and Manubhai Ishverrai Trivedi v. Shantilal Ramchandra. Criminal Revision Application no. 71 of 1969 decided on 22-4-1969 that trespasser Preventing true owner from reconnoitering property will amount to use of criminal force etc. should be against a person and not against property. A person can be said to be dispossessed from the time when he is restricted from re-entering the property. The offence of wrongful restraint by criminal force etc. can be said to be committed when such restriction is made and dispossession does not start from the time the trespasser takes the possession. A person can be said to be dispossessed from the time when he is restricted from re-entering the property. The offence of wrongful restraint by criminal force etc. can be said to be committed when such restriction is made and dispossession does not start from the time the trespasser takes the possession. The learned Additional City Sessions Judge in para 9 while making the above referred observations put dispossession and trespass on the same footing which is not correct as held by this Court in Yashinkhans case (supra ). The facts were before this Court in Yashinkhans case were that one Roshanbibi (complainant) had obtained possession of the property in execution of the decree on 18 She remained in possession thereafter but on 4-3-1974 when the property which was a house was locked was entered upon by opponents nos. 1 and 2 in that case (who were the accused in that case ). When Roshanbibi came to know about this she went to the house and told the accused to go out. Both the accused however refused to go out and instead beat. Roshanbibi and prevented her from entering the house. Of course it was after the actual trespass took place. Still however this Court held that mere dispossession would be when she was prevented. ( 15 ) IN Yashinkhans case (supra) this Court considered the decision of the Bombay High Court in basic DSouza v. Edward A. L. Gametro AIR 1960 Bombay 139 wherein the complainant had locked and lent the room on 16-1-1958 and came to know for the first time on 22-2-1958 that the petitioner (original accused) had broken open the lock and occupied the room. According to the Bombay High Court offence of wrongful restraint took place on the next day i. e. in 23-2-1958 when the complainant tried to enter the room but was obstructed by the petitioner from doing so. Thereafter the Bombay High Court held that a person in judicial possession of any immovable property cannot be rightly said to be dispossessed as soon as a trespasser occupies that property. When a trespasser enters into the property in the absence of the person in possession the latter when he comes to know of the trespass has still the right without recourse to a Court of law to try to secure possession back from the trespasser. When a trespasser enters into the property in the absence of the person in possession the latter when he comes to know of the trespass has still the right without recourse to a Court of law to try to secure possession back from the trespasser. In other words trespasser cannot merely by the act of trespass constitute himself into person in possession. If however the person in judicial possession after has physical dispossession allows a sufficiently long time to pass or adopts some course such as instituting a legal action from which an inference arises that he has mentally relinquished the possession which he had physically lost then he can property be held to be dispossessed. This shows that dispossession would occur not at the time when simple trespass is committed but at the time when the original person in possession attempts to effect his own entry and at that time he is restrained then that would be dispossession. ( 16 ) IN the result therefore both these petitions Criminal Revision Application not 449 of 1981 and Special Criminal Application no. 695 of 1982 allowed. The orders of both the Courts below are set aside and the matter is sent back to the learned Metropolitan Magistrate 5 Court Ahmedabad to decide the matter are rush on the evidence already led after hearing the arguments of the parties and then come to the conclusion whether ingredients of sec. 456 (1) of the Code are established even if conviction of original accused no. 1 Fakirbhai Chhaganlal Bhagat is confirmed. Rule issued in each of the petitions is made absolute. Application allowed. .