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Rajasthan High Court · body

1999 DIGILAW 1235 (RAJ)

Mohd. Ishaaque v. Bismillah

1999-09-28

AMRESH KUMAR SINGH

body1999
Honble SINGH, J.–Heard the learned counsel for the petitioner and the learned Public Prosecutor. (2). This petition filed under Section 482 of Cr. P.C. is directed against the order dated 16.3.1994 passed by the learned Munsif and Judicial Magistrate Ist Class, Jodhpur whereby the application filed by the petitioner under Section 456 Cr. P.C. was rejected. The order dated 16.3.1994 passed by the learned Munsif and Judicial Magistrate Ist Class, Jodhpur was confirmed in revision petition No. 14/94 Mohd. Ishaaque vs. Smt. Bismillah which was dismissed by the Addl. District Judge No.1, Jodhpur on 27.10.1994. (3). On perusal of the orders passed by the courts below, it appears that the Criminal Revision Petition No. 14/94 filed by Mohd. Ishaaque was dismissed by the learned Addl. District Judge No. 1 on the ground that the provisions of Section 456 Cr. P.C. were not attracted because the alleged tres-pass was not committed by use of force or by show of force. Section 456 Cr. P.C. 1973 reads:- `` 456. Power to restore possession of immovable property. (1) When a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and it appers to the Court that, by such force or show of any immovable property, no 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 conviction. (2) Where the Court trying the offence has not made an order under sub-Section (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-Section (1), the provisions of Section 454 shall apply in relation thereto as they apply in relation to an order under Section 453. (4) No order made under this Section shall prejudice and right or interest to or in such immovable property which any person may be able to establish in a civil suit. (4). A bare reading of the Section 456 Cr. (4) No order made under this Section shall prejudice and right or interest to or in such immovable property which any person may be able to establish in a civil suit. (4). A bare reading of the Section 456 Cr. P.C. shows that the power conferred on the Criminal Court under this Section can be exercised by the Court provided it is shown that the person accused of committing tresspass was convicted and the offence committed by him was attended by criminal force or show of Force or by criminal intimidation and it appears to the Court that, by such force or by show of force or by criminal intimidation, any person had been dispossessed of any immovable property. The power conferred by Section 456, Cr. P.C. is an exception to the general rule that in the case of immovable property the proceedings for recovery of possession should be instituted in the civil courts. The power conferred by Section 456, Cr. P.C. being an exception to the general rule, must be exercised with due care and caution and only when the conditions necessary for exercise of power are full-filled and it appears to be necessary to direct the restoration of possession to the person who was dispossessed. (5). Criminal tres-pass as defined in Section 441 IPC may be committed in both ways, i.e. (1) by use of criminal force, by show of force or by criminal intimidation and (ii) without use of criminal force or show of force or criminal intimidation. Section 456 Cr. P.C. empowers the Criminal Court to direct the restoration of possession in cases of first category. (6). I have carefully gone through the judgment dated 11.1.1994 (Annexure 4) passed by the learned Munsif and Judicial Magistrate, Jodhpur in Criminal Case No. 1354/92 State vs. Mst. Bismillah. It does not appear that any allegation of use of force or show of force or criminal intimidation was made in the first information report nor there appears to be anything to show that the learned trial Court found it proved that the petitioner had been dispossessed of any immovable property by use of force or show of force or by criminal intimidation as required by Section 456 Cr. P.C. (7). In the facts and circumstances of the case, the order passed by the learned Add. District Judge No.1, Jodhpur that the provisions of Section 456 Cr. P.C. (7). In the facts and circumstances of the case, the order passed by the learned Add. District Judge No.1, Jodhpur that the provisions of Section 456 Cr. P.C. was not attracted, does not appear to suffer from any illegality. (8). For reasons given above I do not find any force in this petition and the same is hereby dismissed. The petitioner shall be at liberty to take appropriate proceedings in accordance with law for the recovery of immovable property in respect of which, as reported by the learned counsel for the petitioner, a decree has been passed in the civil court in favour of the petitioner.