Palani Pannadi and Others vs Nanjammal

K.N. Mudaliyar, J.—This is a petition seeking to revise the order of the Court of the District Magistrate (J) of Coimbatore confirming the

order of the trial Magistrate convicting the four accused-petitioners of the offence u/s 448 IPC and the consequential order passed u/s 522 (1) Crl.

P. C. in regard to the restoration of the property to the complainant-respondent.

Briefly the facts are: Naniammal fl?W. 3) obtained a decree for possession against accused-petitioners 2 and 3 in O. S. No. 1676 on the file of

the court of the District Munsif of Coimbatore. in respect of the house bearing door No. 12/190 situated in Sineanallur. The complainant (P. W. 3)

took out execution to recover possession, and delivery was ordered thereon by the Court. There is the delivery warrant issued to P. W. 1, the

Amin of the court, to effect delivery. P. W. I. Amin, accompanied by P. W. 3, the decree-holder, and P. W. 2, the village munsif, went to effect

delivery on 16-4-1970. Accused-petitioner 3 and a girl were present in the house. P. W. I informed A-3 that he had come to effect delivery. A. 3

refused to give delivery and staged a walk-out. P. W. 1 took out all the articles kept inside the house and placed them outside. He prepared an

inventory and handed them over to one Nagappan. brother of A. 3. The prosecution proved the delivery athakshi (Ex. P. 2). sisned by P. W. 2,

the village munsif, and PW. 3 the decree-holder, and P. Ws. 4 and 5. two independent witnesses.

P. W. 3 accompanied the Amin P. W. 1. to the bus stand for sending him away. All the four accused petitioners broke open the lock in the

meantime and occupied the house. The complainant (P. W. 3) returned from the bus stop and found the house broken open and occupied to hell

dismay. She auestioned the accused-petitioners but thev replied arrogantly. She sought redress before the Court.

Both the courts below believed the evidence of P. Ws. 1 to 5 and the contents of Ex. p. 2 in regard to the actual delivery. P. Ws. 3 and 5

deposed that the Amin went to the building in question and effected delivery on 16-4-1970. P. W. 4 testified before the Court that he saw the four

petitioners actually breaking onen the lock and entering the house. The village munsif P. W. 2 and P. W. 5 deposed that A. 3 is is now living in the

house in auestion. Both the courts below found that the petitioners committed trespass by breaking open the lock of the house in auestion. Both the

courts ordered restoration of possession as provided u/s 522 (1) Crl. P. C.

learned Counsel argued that there is no express finding about the intention on the Dart of the petitioners to intimidate, insult or annoy anv Derson

in possession of the property. Undoubtedly, there is evidence that these petitioners have broken open the lock and entered the house. There is

undoubtedly proof of the intent to commit an offence; not merely that, they have committed the offence of mischief when they broke open the lock

of the house in the absence of P. W. 3. The ingredients of Section 448 IPC are proved to the hilt by the complainant.

The other argument is that admittedly no force has been used aaainst the complainant (P. W. 3). It is true she was away in the bus-stand for

sending P. W_ I, Amin. away. In her absence, the lock was broken open and the petitioners entered into the house. In a limited sense, no ''criminal

force'' has been used against the ''person'' of the complainant (P. W. 3). It is true that Bvers J. has observed in D.K. Aswatha Narayana Gupta

Vs. J. Muneppa and Others, as follows:�

Although there is much to be said for the view that there is no difference in princiDle 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.

In spite of saving so, the learned Judge confirmed the order of the courts below for restoration of possession made u/s 522 Crl. P. C despite the

argument that the ''criminal force'' attending the dispossession complained of was used not against the property dispossessed but against the person

in his absence. In other words. Byers J. did not confine the scope of the ''use of force'' as defined in Section 350 IPC to the person dispossessed

only. I am in entire agreement with the conclusion arrived at by Byers J. Therefore, the order of the two courts below u/s 522 (1) Crl. P. C. is

confirmed. This revision case is dismissed.