Devki Nandan and another vs The State

Bedi, J.—The tacts of this case are briefly given below: Bawa Hans Raj (P. VV. 1), a medical practitioner at Rohtak, made a complaint on the 20th December 1961 against the Petitioners Devki Nandan and Ved Parkash u/s 448, Indian Penal Code, alleging that he was occupying a Chobara as their tenant for the last about 23 years or so and had been paying rent to them. On the 25th October, 1960 after the floods he was informed by Mahabir Singh (P. W. 2) that the Petitioners broke open the lock of his Chobara and, after throwing out his belongings, took possession of it. The complainant went there and protested to the Petitioners for their misbehaviour, but he was abused and threatened. Bawa Hans Raj then sent a written complaint to the Superintendent of Police, but it had not the desired effect. Thereafter, he lodged a report on the 17th April 1961 as a result of which the Petitioners were sent up for trial. Shri Gurmel Singh Bams, Magistrate III Class, Rohtak, found the Petitioners guilty u/s 448, Indian Penal Code, and sentenced them to pay a fine of Rs. 40/- each, or in default to undergo 15 days'' simple imprisonment. The possession of the Chobara also was ordered to be restored to the complainant. The Petitioners went up in appeal to the Court of Session. Shri Manmohan Singh Gujral, Sessions Judge, Rohtak, after giving adequate reasons acquitted them, but held that he could not restore possession of the Chobara to them as he had no such powers, vide his order dated the 2nd May, 1962. The Petitioners have now approached this Court in revision.

The stand of the Petitioners was that the complainant had vacated the Chobara in question before the Hoods and bad handed over the key to them in the presence of Shri Parkash Chand, Advocate (D. W. 1) and Balwant (D. W. 3). They further stated that thev were not at Rohtak on the 25th October 1962, the alleged day of trespass, Devki Nandan being at Calcutta and Ved Parkash at Kaithal.

The only point which requires determination in this case is whether after the acquittal of the Petitioners, the order passed by the trial Court u/s 522, Criminal Procedure Code, for re-delivery of the possession of the premises in question to Bawa Hans Raj could or could not be maintained. Section 522(1) lays down that "whenever 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 criminal intimidation any person has been dispossessed of any immovable property, the Court may, if it thinks fit, when convicting such person or at any time within one month from the date of the conviction order the person dispossessed to be restored to the possession of the same." From the above it is obvions that before an order can be made under this section it must be established that the person convicted was guilty 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 criminal intimidation any person has been dispossessed of any immovable property. The learned Sessions Judge has given lengthy reasons for coming to the conclusion that the allegations levelled by the complainant against the Petitioners are to say the least highly doubtfull. The main reason for his coming to the above conclusion was that the report in this case was lodged after about six months of the alleged occurrence. It is true that he has not believed the defence version either, but if the finding of the Sessions Judge is to be taken as correct, and there is no reason why it should not be taken as such, the least that can be said about it is that he did find the Petitioners to be in possession of the Chobara in question, but how and in what manner they came to possess it could not be known. Under the circumstances it is a moot point if the provisions of Section 522, Criminal Procedure Code, strictly speaking, would apply to this case. However, a perusal of this section shows that it will come into play only after the person accused is convicted and it is proved that the offence was attended by criminal force or show of force or by criminal intimidation. In the present case, as already stated, the Petitioners have been acquitted of that charge. Under the circumstances, the order of the Magistrate passed u/s 522 Criminal Procedure Code, would be illegal. In support of this view Malkhan Singh and Another Vs. Emperor, and AIR 1940 460 (Lahore) were cited. Consequently I accept this revision, set aside the order passed by the trial Magistrate u/s 622, Criminal Procedure Code, and direct that the possession of the premises in dispute be delivered back to the Petitioners.