D.K. Aswatha Narayana Gupta vs J. Muneppa and Others

Byers, J.—The only question which arises in this case is whether an order for restoration of possession can be made u/s 522 of the Code of

Criminal Procedure where the criminal force attending the dispossession complained of is used not against the person dispossessed but against the

property in his absence.

The petitioner relies on the decision in Roda v. Autar Singh AIR 1938 Lah. 839 as authority for his * contention that the words "" criminal force

used in Section 522 of the Code are not limited to criminal force against a person but are wide enough to include criminal force against the

property, such as breaking open the locks on the doors of a house, as in the present case. Skemp, J., took the view that as the definitions in

Sections 349 and 350, Indian Penal Code, consider force and criminal force only in their application to a person and say nothing about force as

applied to a thing, the demolition of a wall or the breaking of a lock involved the use of criminal force. He held that the force used in such cases

was criminal force because it involved the offence of mischief and that an order for restoration of possession based on the use of force of this kind

would be competent.

On the other hand, several cases have been cited in support of the opposite view. The most recent appears to be the decision of Din Mohamed,

J., in Ramchand v. Emperor I.L.R (1939) Lah. 513 that Section 522 contemplates only criminal force to the .person. He based his conclusion

largely on the reference in the section to criminal intimidation his view being that as an inanimate object cannot be criminally intimidated, it seemed

reasonable to hold that the object of the criminal force also could only be a person and not property. This view was upheld and the opinion

expressed by Skemp, J., dissented from by the Bench of two Judges in Narain Singh v. Ramlal AIR 1940 Lah 460.

In the case of Sadasib Mandal v. Emperor (1913) 26 I.C. 168 a Bench of two Judges held that an order u/s 522 of the Code of Criminal

Procedure could not be made where the force used was not to any individual. Reference has also been made to a decision by the same Bench in

Bisweswar Singh v. Bholanath Pathuk (1913) 22 I.C. 751 a few months earlier but a perusal of the judgment shows that the point was not

considered at all and that the headnote in the report is misleading. In Daw Mya v. Emperor AIR 1937 Rang. 248 Mackney, J., held that it was

necessary to show that the dispossession had been caused by criminal force shown to the owner or occupier of the property.

Although the definition of criminal force in Section 350, Indian Penal Code, contemplates the use of force only to a person the words "" criminal

force "" have long been understood to refer only to force as used against a person and not against a thing. The words "" criminal force "" have never

been understood as denoting an offence involving the use of physical force against property, such as house-breaking, mischief, etc.

Although on a literal construction these words would seem to include acts of physical violence against property, they have acquired the

specialised and limited meaning given them in all but one of the decisions referred to. According to Section 4 (2) of the Code of Criminal

Procedure, expressions not defined therein have the meanings attributed to them in the Indian Penal Code. It follows that the expression "" criminal

force "" used in Section 522 of the Code of Criminal Procedure does not embrace all kinds of physical violence on persons or inanimate objects but

refers only to criminal force in the limited sense in which it is defined in the Penal Code. Although there is much to be said for the view that there is

no difference in principle between dispossession by effecting a forcible entrance in the absence of the owner and dispossession of the owner

himself by the use of force to him, I must hold that the section applies only to criminal force used against the person.

The order of the learned Magistrate is therefore correct and the revision petition is dismissed.