Bundi Singh vs Emperor

Jwala Prasad, J.—We are concerned in this case only with the order u/s 522 of the Code of Criminal Procedure passed by the Deputy Magistrate of Palamau, directing that the disputed Bhunder be restored to the possession of the complainant Mr. De. The order was passed on a conviction of the petitioners under sections 143 and 379 of the Indian Penal Code. On appeal the Judicial Commissioner of Ranchi set aside the conviction u/s 379, on the ground that the charge of theft laid by the complainant''s servants was exaggerated and was not true. The conviction u/s 143 was, however, upheld. There is no reference to the order u/s 522 by the Judicial Commissioner in his judgment and hence that order of the Deputy Magistrate remains. The petitioners have, therefore, come to this Court aggrieved by the said order of the Deputy Magistrate.

The conviction u/s 143 is based upon the following finding of the Judicial Commissioner, which substantially is also the finding of the Deputy Magistrate:--

I consider this evidence as establishing the fact that Mr. De''s servants were actually in possession of this Bhunder. The evidence further satisfies me that the accused after some previous threats turned up in a body and threatened all the servants of the Bhunder, whereupon the servants left the village and came to Court where they lodged a complaint. During the interval between their departure and the Police coming on the scene, Bundi Singh (one of the accused) again established himself in possession of the Bhunder.

The above finding clearly shows that the dispossession took place subsequent to the complainant''s servants having left the village and gone to the Court to complain of the offence u/s 143 of theft committed by the petitioners. There is no finding that the dispossession took place during the course of the offence u/s 143 of which the petitioners were convicted. There is also no finding that the dispossession took place on account of any force having been used by the petitioners. The conviction u/s 143 in itself is not one which is attended by ''criminal force''. The common object mentioned in the charge u/s 143 is to take forcible possession of the complainant''s master''s Bhunder and to remove the grains stored therein. The offence u/s 143 is not necessarily attended by ''criminal force'' and in this particular case there is no finding that it was so attended. No ''criminal force'', as defined in sections 349, 350 of the Criminal Procedure Code, was at all held to have been used by the petitioners. It was held so far back as in Mohunt Luchmi Dass v. Pallat Lall 23 W.R. Cr. 54 that ''the foundation of an order u/s 534 (corresponding to the present section 522) should be the finding of the Court to the effect that the person in whose favour the order is made has been dispossessed of a specific property by use of criminal force, which forms the material ingredient in the matter of criminal conviction''. The leading case of Ram Chunder Boral Vs. Jityandria Alias Foring Bhuttacharji reiterated that principle. All the High Courts appear to be in agreement in respect of the interpretation of the expression used in section 522 ''attended by criminal force'' and later in the section by such force any person has been dispossessed of any immoveable property. The result of the authorities has been that the dispossession must be accompanied by ''criminal force'' and as a result of the ''criminal force'' used, and further ''the mere show of criminal force'' is not sufficient for an order u/s 522. It may be mentioned here that the inequity of such an interpretation of the section and perhaps of the expression used by the Legislature has been felt by more Judges than one, notably in the case of Chhakoo Mandal Vs. The Emperor , where the anomaly of the position has been fully dealt with. The words in the section put a peaceful man, who yields to the threats and show of force and gives up possession of a property, to a great disadvantage and hardship. The Full Bench case of Mohini Mohan Chowdhry Vs. Harendra Chandra Chowdhry, felt that the construction put upon the section is too narrow. I may say that I am in full accord with the views of the learned Judges who decided the above cases and would go further than that and hold that the interpretation works as a hardship, but as all the Courts have followed it, I feel bound to accept it. More so, because the rule of construction of a Statute does not permit a Court to use words not expressly mentioned in the section. To give effect to the inequitous position felt by the Judges already adverted to will necessitate the reading into the section the words ''or by show of criminal force''. I, therefore, in concurrence with the views held by all the Courts, hold that the order in this case passed by the Deputy Magistrate u/s 522 is illegal and without jurisdiction. It is accordingly set aside.