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2005 DIGILAW 2376 (RAJ)

Ganesh Ram v. State of Rajasthan

2005-09-07

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-By the instant petition, filed under Section 397 read with Section 401 CrPC, the petitioner has challenged a part of Judgment dated 23.08.2003 passed by learned Sessions Judge, Pali in Criminal Appeal No. 45/2003 whereby the learned Judge has allowed the appeal of the petitioner in part and has quashed the order dated 10.09.2002 passed by learned Chief Judicial Magistrate, Pali convicting the petitioner under Section 456 IPC but allowing him probation under Section 4 of the Offenders Act and directing the petitioner to deposit cost of prosecution. The learned Sessions Judge has acquitted the petitioner for the offence under Section 456 IPC, however did not accept his prayer for possession of disputed premises. The petitioner, in the present petition has confined his prayer only to the restoration of possession of disputed premises to him. 2. The brief facts of the case giving rise to this petition are that on 15.03.1998 PW. 5 Satyanarayan submitted a written report at Police Station, Kotwali, Pali stating therein inter-alia that he had taken a shop in Fatehpuriya Bazar, Pali for running it in the name of Ashok Restaurant under a rent note and it was in his possession for last 30 years. It was further stated in the report that in the night of 14.03.1998, the accused-petitioner after breaking the lock of his shop shifted his goods in a neighbouring shop and took over the possession of that shop. 3. The police on the aforesaid report, Registered Case No. 77/1988 and after investigation filed charge-sheet against the accused-petitioner in the Court of Chief Judicial Magistrate, Pali. On Charge under Section 457 IPC being framed against the petitioner, he denied it and claimed trial. The prosecution, in support of its case examined 7 witnesses. The accused-petitioner, in his statement under Section 313 CrPC denied the prosecution story and in defence got examined DW. 1 Vinod Kumar. 4. On Charge under Section 457 IPC being framed against the petitioner, he denied it and claimed trial. The prosecution, in support of its case examined 7 witnesses. The accused-petitioner, in his statement under Section 313 CrPC denied the prosecution story and in defence got examined DW. 1 Vinod Kumar. 4. The learned trial Court, after hearing the parties, by a detailed Judgment and order running into 7 pages while discussing the matter at length, instead of convicting the accused-petitioner under Section 457 convicted him under Section 456 IPC and looking to the fact that accused-petitioner was facing trial for more than four years and the complainant had got possession of the shop back, gave him benefit of Section 4(1) of the Probation of Offenders Act and ordered to release him on furnishing a personal bond in a sum of Rs. 5,000/-with one surety bond of the like amount and his giving undertaking to keep peace and be of good behaviour for a period of two years from the date of order and also to surrender himself to serve out the sentence as and when called upon to do so. The learned trial Court vide its order dated 10.09.2002 also directed the accused-petitioner to deposit Rs. 1000/-as cost of prosecution. 5. Aggrieved, the accused-petitioner preferred an appeal before the learned Sessions Judge, Pali which came to be registered as Criminal Appeal No. 45/2003 and the learned appellate Court after hearing the parties has allowed the appeal of the petitioner as indicated above. 6. Being dissatisfied, the petitioner has approached this Court challenging only that part of the order of the appellate Court whereby the appellate Court refused to pass an order to restore the possession of the disputed shop in question. 7. It was contended by learned Counsel appearing for the petitioner that the learned appellate Court has crept in error in not considering the prayer of the petitioner to restore the possession of the shop in question to him. It was submitted that the legislature in its wisdom has specifically inserted Section 456 in the Criminal Procedure Code which empowers the Courts of competent jurisdiction to restore possession of immovable property even by force if necessary. It was submitted that the legislature in its wisdom has specifically inserted Section 456 in the Criminal Procedure Code which empowers the Courts of competent jurisdiction to restore possession of immovable property even by force if necessary. He also submitted that the learned appellate Court was legally obliged to pass appropriate order as envisaged under Section 456(2) CrPC restoring possession of shop to him after holding the petitioner not guilty of the offence under Section 456 IPC. The learned Counsel further stated that on the date of incident, the petitioner was in possession of the disputed shop but the police using its high handedness got the shop vacated and gave possession of the shop to PW. 5 Satyanarayan by foisting a false case against him to which the police had no right. 8. Learned Public Prosecutor and the learned Counsel for Complainant respondent No.1 supported the Judgment and order passed by learned Court below. 9. Heard learned Counsel for the parties and perused the case file. 10. The learned appellate Court while discussing the evidence has found contradictions in the statements of prosecution witnesses particularly in the statements of PW. 1 Rajaram and PW. 2 Kailash. Rajaram has stated the time of incident to be 3-4 AM while Kailash has stated it to be 3-3:30 AM. The learned Court has said that had the incident taken place as was stated by them, it was their duty to have stopped or asked the petitioner about doing so but from their statements it does not appear that they did so. The learned appellate Court has also observed that it is quite unnatural that a person present at such a place of incident will not object to if a person breaks locks of the premises possessed by somebody else in the early morning (Tisara Prahar) and did not found the statements plausible that at such a time an illegal activity took place when people had awakened for water. The Court has also noticed that the incident is said to have taken place at about 3-3:30 AM and as per the statement of Raja Ram he had gone to inform about the incident alongwith Kailash and thereafter complainant Satyanarayan came with them whereas Kailash says that the information was given at 6:30-7:00 AM. The Court has also noticed that the incident is said to have taken place at about 3-3:30 AM and as per the statement of Raja Ram he had gone to inform about the incident alongwith Kailash and thereafter complainant Satyanarayan came with them whereas Kailash says that the information was given at 6:30-7:00 AM. The learned appellate Court, finding that the information was given after three hours of the incident and the act of breaking lock of shop and taking over possession was an act of serious nature, doubted the whole story. The Court also found that the names of Rajaram and Kailash were not mentioned in the first information report and there was variance about the time of their examination. As regard tenancy, the appellate Court did not accept Ex.P/6 as the rent deed as it was not an original document but a photocopy which was unsigned. The argument of the learned Public Prosecutor was not accepted that even if the tenancy was not established but as it was proved from the statements of the witnesses that Satyanarayan was in possession of the disputed premises and the accused after breaking lock took over the possession, the offence against him was proved. The appellate Court observed that the statements of witnesses Rajaram and Kailash evidencing breaking of lock ware not reliable and the statement of PW. 3 Neeju Khan made it clear that at the spot neither the lock was found open nor broken and as such the same was not seized. The story of taking over possession by breaking lock was not found to be proved. The learned Court below also criticized the seizure made by police and preparing Ex.P/5 in that regard and found it the high handedness of police. The handing over of possession to PW. 5 Satyanarayan (complainant respondent No.2) was also not found proved on the basis of statement of DW. 1 wherein the petitioner was stated to be in possession of the disputed shop. 11. While coming to the conclusion, the learned Judge of the appellate Court reiterated the high-handedness of the police and observed that the role of the police in the matter was only up to bringing the matter of encroachment on the shop of complainant to the Court and it was not right for them to handover the possession to the complainant without the orders of Court. The learned Judge did not find it a case under Section 456 for delivering back the possession to the accused and stated that the police had given possession to the complainant and if the appellant (petitioner) wished to get back the possession he should proceed in accordance with law. It was also stated that Section 456 IPC provides that while penalizing a person, the Court has the power to restore possession of a person forcibly evicted but as no one was found guilty, in his opinion it was not proper to order for restoring possession to the accused-appellant. The citations made by the Counsel for appellant-petitioner were not found applicable in the matter and as such the prayer to restore back the possession did not find favour. 12. In view of the submissions made before me, it is to be seen as to whether under Section 456 CrPC the learned appellate Court could have ordered to restore possession to the petitioner? 13. The facts of the case reveal that a First Information Report was lodged against the accused petitioner by one Satyanarayan that he broke the lock of his shop situated in Fatehpuriya Bazar, Pali. After investigation, challan was submitted and after due trial the learned trial Court instead of convicting him under Section 457, convicted him under Section 456 IPC and he was given benefit of Section 4(1) of the Probation of Offenders Act. The learned Sessions Judge though acquitted the petitioner for the offence under Section 456 CrPC but declined to accede to the prayer made by the petitioner to put him back in the possession of the shop as Section 456 of the CrPC in the facts and circumstances of the case was not applicable. 14. To examine the matter in its correct perspective, it is necessary to reproduce Section 452 and 456 of CrPC, which read as under:-Section 452. Order for disposal of property at the conclusion of trial.-(1)When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. (2) An order may be made under Sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof , without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under Sub-section (1) is modified or set aside on appeal or revision. .(3) ACourt of session may, instead of itself making an order under Sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in Sections 457, 458 and 459. .(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of Sub-section (2), an order made under Sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of . .(5) Inthis section the term property includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise. Section 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 appears to the Court that, by such force or show of force or intimidation, any person has been 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:- 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-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. .(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) Wherean order has been made under Sub-section (1), the provisions of section 454 shall apply in relation to an order under Section 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 a civil suit. A perusal of the above provisions clearly indicates that the applicability of Section 456 CrPC comes into existence only when it is established that a person has been convicted of an offence attended by criminal force or show of force or by criminal intimidation and it must appear to the Court that by such force or show of force or intimidation any person has been dispossessed of any immovable property. It further appears from the perusal of Section 456 that the object of the section is to prevent wrongful possession made by a person by his wrongful acts. It also appears that an order cannot be passed under this section unless the accused has been convicted. Thus, it appears that the Magistrate after acquitting an accused person cannot proceed to pass an order afresh under this section. It also appears that an order under this section can be passed only when a finding is arrived to the extent that the complainant has been dispossessed by force. The pith and substance, in my humble opinion is that firstly there should be conviction and in case there is no conviction then this section will not and cannot be made applicable, and secondly it should also be proved by evidence that a person has been dispossessed of an immovable property. Another Section, Section 452 of the CrPC, regarding disposal of the property also appears to be of no help to the petitioner because Section 452 comes into operation only in relation to the class of properties or documents which are produced before the Court; or are in its custody; or regarding which any offence is committed; or which is used in the commission of any offence. It further appears that the property under this Section can be disposed of by way of destruction, confiscation, delivery to a person entitled to its possession or otherwise. The order under this Section is required to be made when an inquiry or trial in a Criminal Court is concluded. In the present case, the position is different as at the initial stage the petitioner was given benefit of probation under Section 4 of the Offenders Act and he preferred an appeal before the learned Sessions Judge and was acquitted. Thus, in the above set of circumstances, it does not appear that these two Sections viz. Section 456 and Section 452 of the Code of Criminal Procedure in any manner are applicable to the facts and circumstances of the present case so that to put the petitioner in possession. 15. It has also been brought to my notice that a suit for eviction has been filed by the father of the petitioner in respect of disputed premises which is pending for disposal. If that is so, then the finding of the civil Court will be binding in relation to determination of the rights of the parties regarding the possession of the shop in question. 16. During the course of arguments, it was also brought to my notice that the petitioner has not made any complaint for the alleged high handedness of the police officials or of the complainant of the present case. This is also an important aspect of the matter, which requires consideration as to why he did not take any recourse if he was subjected to such a high handedness. 17. In the present case, it is also relevant to mention here that the findings of acquittal recorded in favour of the accused petitioner have not been challenged and therefore the correctness of the Judgment of the learned appellate Court or the trial Court cannot be considered in absence of any challenge made by the State. The point before this Court under challenged is that the appellate Court should have restored the possession to the petitioner. 18. As discussed above, neither Section 452 nor Section 456 of the CrPC permits such a relief to the petitioner as is sought in the present revision petition. The point before this Court under challenged is that the appellate Court should have restored the possession to the petitioner. 18. As discussed above, neither Section 452 nor Section 456 of the CrPC permits such a relief to the petitioner as is sought in the present revision petition. The learned Sessions Judge has also dealt with the matter and has found that the prayer made by the petitioner was not permissible under Section 456 of the CrPC The findings of learned Sessions Judge on this point appears to be legally sustainable and it does not require any interference by this Court. However, the learned Counsel for the petitioner submitted that a direction be issued to the civil Court, where the matter relating to eviction is being tried, to dispose of the matter quickly. I do not find it to be reasonable and proper to give a direction of this type to a civil Court in a criminal proceeding. It is always open to the parties to a litigation to move an application or make a prayer before the Court of law for deciding a case expeditiously. It is also the mandate of law that the cases should be tried expeditiously. 19. In view of above discussion, I do not find any merit in this petition and the same deserves to be dismissed. 20. In the result, the petition stands dismissed.