Ram Chunder Boral vs Jityandria Alias Foring Bhuttacharji

This is a reference from the Sessions Judge of Moorsidabad recommending that an order of the Honorary Magistrate of Lalbag giving possession of certain pro petty to the opposite party under sec. 522 of the Code of Criminal Procedure, should be set aside on three grounds, first, because the offence of which the Petitioner had been convicted, is not one attended by criminal force, the conviction being for an offence punishable under sec. 143 of the Indian Penal Code; secondly, because it has not been found that the opposite party has been dispossessed of any immovable property by the use of criminal force, and thirdly, because the order under sec. 522 does not form part of the judgment in the criminal case as it ought to have done, but was passed several months after the conviction in that case. We are of opinion that the view, taken by the learned Sessions Judge with reference to the first two grounds, is correct. Sec. 522 of the Code of Criminal Procedure says : --"Whenever a person is convicted of an offence attended by criminal force, and it appears to the Court that, by such force, any person has been dispossessed of any immovable property, the Court may, if it thinks fit, order such person to be restored to the possession of the same." "An offence attended by criminal force" means, in our opinion, an offence of which criminal force forms an ingredient. The offence in this case being that of being members of an unlawful assembly, is one into the composition of which the use of criminal force does not enter, though the show of criminal force may, in certain cases, and the view we take is supported by the cases of Mohunt Luchmi Dass v. Pallat Lall 23 W. R. Cr. 54 and Shoshi Bhusan Dutt and others, Petitioners I. C. W. N. cclvi. But granting that the expression "attended by criminal force" is ambiguous, and might include a case in which the offence involves not merely the actual use of criminal force, but the show of such force as an ingredient, it cannot be said that the expression "by such force" in the sentence "and it appears to the Court that by such force any person has been dispossessed " means the show of criminal force and not the actual use of it.

The learned vakil for the opposite party referred to a passage in the judgment of the Court below as showing that the dispossession was by the use of force; but that would not be sufficient. It must be found that the dispossession was by the use of criminal force as defined in sec. 350 of the Indian Penal Code, the last clause of sec. 4 of the Code of Criminal Procedure clearly showing that the expression "criminal force" used in sec. 522 of the Code of Criminal Procedure, must be understood in the sense in which it is defined in the Penal Code.

In this view of the matter it becomes unnecessary to consider the other questions raised before us. The order under sec. 522 of the Code of Criminal Procedure must therefore be set aside.