Ram Krishna Singh and Others vs King-Emperor

Jwala Prasad, J.—The petitioners 5 in number have been convicted of rioting u/s 147, I.P.C. Petitioner Shibram was convicted by the Assistant Sessions Judge u/s 436, I.P.C. (mischief by fire) and the other petitioners were convicted of mischief under Sections 436--149, I.P.C. The lower appellate Court has set aside the conviction of Shibram u/s 436, I.P.C. and has convicted him under that section read with Section 149. Thus all the petitioners have been convicted under Sections 436--149 by the lower appellate Court. Petitioners Shibdhyan and Babua have been convicted also u/s 323, I.P.C. All the petitioners, after the reduction of the sentences, have been sentenced to one year''s rigorous imprisonment under Sections 436--149. They have further been sentenced to six months'' rigorous imprisonment u/s 147, I.P.C. and Shibdhyan and Babua to three months'' rigorous imprisonment u/s 323, I.P.C. The sentences are to run con currently.

The facts briefly stated are as follows. Ram Krishna Singh obtained a mortgage-decree against Adya, the complainant, on the 7th July, 1915, and in execution of that decree he sold 8 annas share in Akbarpur Tauzi No. 796. Ram Krishna Singh and his brothers purchased the same on the 28th July, 1918. The sale was confirmed on the 26th August, 1918. Ram Krishna Singh obtained delivery of possession of the property on the 15th March, 1919. This delivery of possession was under Order 21, Rule 95 of the Code of Civil Procedure.

There was some litigation between the parties with respect to the sale, but the sale was finally upheld by the High Court (vide judgment Exhibit N). On the 27th April, 1920, the Sub-Inspector of Police submitted a report for an action u/s 144 to be taken against Adya Singh and his family on the ground that the disputed property was in possession of the petitioners, Ram Krishna Singh and his brothers.

Subsequently proceedings u/s 145 were instituted on the 7th June, 1920. On the 6th November, 1920, the Magistrate declared the possession of Adya Singh holding that in spite of the delivery of possession, he continued to be in actual possession of the property in question. This order of the Magistrate was set aside by this Court on the 12th January, 1921, with the observation that it was not open to the Magistrate to dispute or disregard the Civil Court writ of delivery of possession in favour of Ram Krishna Singh. This occurrence took place 4 days after the aforesaid order of the High Court on the 16th January, 1921.

The case of the prosecution is that Ram Krishna Singh came to the house in question with a mob of about 200 armed with lathis and ordered Adya Singh to leave the house in question. Adya Singh refused to do so. Thereupon Ram Krishna Singh ordered the mob to demolish the house, loot its contents, burn it down and remove the occupants. Adya Singh remonstrated and thereupon he was hit by Babua Singh with a lathi. Khela Singh, a grandson of Adya Singh, was also assaulted by Shibdhyan Singh with a lathi Khela Singh retaliated and struck Ram Krishna Singh with a lathi. Subsequently the ladies of the house came out and one of them Lalbati was struck on the head by Nasib Singh with a lathi and a box which she was carrying was snatched from her by Nasib Singh. The mob continued the loot and eventually Shibram Singh set fire to a room on the northern side of the house. This room was wholly destroyed by fire.

It was contended by the defence that the house in question was not the house which was the subject-matter of dispute u/s 145 or with respect to the Civil Court delivery of possession to Ram Krishna Singh on the 15th March, 1919. It was further asserted that Adya Singh was in possession of the house and was never dispossessed; and, therefore, the accused had no right to try to dispossess him by means of force; and that inasmuch as the house was in possession of Adya Singh and he with his family was residing therein, the accused did mischief as defined by Section 425, I.P.C. and hence were liable to conviction u/s 436.

The Court below has come to a definite finding that the house in question was the very house with respect to which the Civil Court had executed the writ of delivery of possession in 1919 and that it was the property which was the subject of dispute u/s 145, Cr.P.C. The Court has further held that the possession of Adya Singh and his family was wrongful and that of a trespasser inasmuch as the petitioner Ram Krishna Singh was put in possession of it in pursuance of a Civil Court dakhaldehani.

The Court very rightly repelled the suggestion that inasmuch as symbolical possession was only delivered under Order 21, Rule 95. Ram Krishna Singh should not be deemed to be in actual possession of the house in question. The Court, however, has held that in spite of the Civil Court dakhaldehani, Adya Singh continued to be, in actual possession of the house in question and, therefore, the accused were not justified in attacking him with a large mob and assaulting his party and in turning them out and burning the house. According to the finding of the Court below the house in question now belongs to Ram Krishna Singh by virtue of his purchase at a Civil Court auction sale in 1918. He was also given possession by the Civil Court; therefore Adya Singh was occupying the house if at all as a mere trespasser.

It was rightly pointed out by this Court that after the execution of the writ of delivery of possession, the Criminal Court was bound to maintain Ram Krishna Singh in possession of the house in question. In other words the Criminal Court was bound to maintain Ram Krishna Singh in possession of the house in question. In other words, the Criminal Court was not competent to re-open the question of possession and to investigate it u/s 145 of the Code of Criminal Procedure. No doubt u/s 145, a disputed possession may be enquired into and the party found in possession by the Magistrate may be maintained by an order under Clause (4) of that section.

Therefore, in order to find out as to whether the possession was disputed or not, the Magistrate could investigate as to the actual service of the writ of delivery of possession; but once a dakhaldehani was proved to have been effected to the satisfaction of the Magistrate, it was then his bounden duty to maintain the possession of Ram Krishna Singh either by an order u/s 145 or by having recourse to actions u/s 144 or 107, Cr.P.C.

In this case it appears that the dakhaldehani was proved and consequently the Criminal Court whether acting under the preventive sections of the Code of Criminal Procedure or enquiring into an offence under the Indian Penal Code has to maintain the possession of Ram Krishna Singh; therefore, Ram Krishna Singh was not committing any criminal act in going to assert his title and to take possession of the house in question by ousting Adya Singh who was remaining in the house only as a trespasser. Therefore, the accused were not members of an unlawful assembly and they did not commit any riot. So the conviction u/s 147, I.P.C. must fail.

As to the conviction u/s 436 of causing mischief by setting fire to the house, it is obvious that there could not possibly be any wrongful loss or damage to Adya Singh or any person inasmuch as the house did actually belong to Ram Krishna Singh, the accused. The principal ingredient of an offence u/s 425 is that there must be an intention to cause wrongful loss or damage to the public or to any person.

Therefore, if the property in question, did not belong to Adya Singh and belonged to the accused no offence of mischief was at all committed. Explanation 2 to Section 425, I.P.C. has been referred to by the learned Assistant Government Advocate in order to show that mischief may be by an act which affects any property belonging to the person committing the act or to that person and others jointly.

Now Illustrations (g) or (h) clearly show the cases to which that explanation is applicable. The mischief must be done to the property belonging to another person, but the act whereby that mischief is done may have reference to the property belonging to the person committing the mischief.

The case of The Empress on the Prosecution of Denonath Ghattack Vs. Rajcoomar Singh and Another, , is an obvious illustration of a person having his right declared by a Civil Court destroying the property without being guilty of any mischief. In that case B obtained a decree from a civil Court against A declaring his right in the property, whereupon the servants of B went on the land and pulled down the edifice which was erected thereon by A subsequent to an order u/s 530, Cr.P.C. (145 of the present Code), Jackson, J., held that as there had been no causing of wrongful loss the accused had not been guilty of mischief.

The following observation appears to me to be pertinent to the question in issue in the present case. His Lordship (Mr. Justice Jackson) observed : "Now it is clear from the decision of the Civil Court, which was then in force, that Shama Charan Lahiri was not at that time legally entitled to have those bamboos put together in that place in the form of a nawbutkhana, and consequently there was no causing of wrongful loss in the act done by the accused persons."

Instead of pulling down the house, here the accused persons burnt it down; otherwise the case appears to me to be on all fours with the present one. If there was no mischief in pulling down the edifice there was no mischief committed in burning it. I would quote the case of Parmeswar Singh Vs. Emperor, in order to show that no mischief can be committed by any act which causes damage to a property if the property actually belongs to the accused.

The learned Assistant Government Advocate then contended that rightly or wrongly, the complainant, Adya Singh, occupied the house in question at the moment, and, therefore, the accused had no right, what the learned Assistant Government Advocate describes, to take the law into their own hands. That phrase obviously means that the accused persons should not use more force than is necessary in order to maintain their own right or possession.

It goes without saying that a rightful owner is entitled to physically turn out a trespasser or one trying to infringe upon his rights. It is also true that a person exercising this right should not use more force than is reasonable to defend his possession from a trespasser.

This is the view taken even in the case quoted by the learned Assistant Government Advocate; Emperor v. Gulsha (1912) 6 S.L.R. 121 : 17 I.C. 78 : 13 Cr. L.J. 766. Therefore, the accused persons to my mind ate not guilty either u/s 147 or under Sections 436--149.

The last contention of the learned Assistant Government Advocate is that the conviction of Babua and Shibdhyan u/s 323, I.P.C. for causing hurt to Adya and Khela with lathis should stand.

The learned Sessions Judge has not come to any definite finding as to the circumstances under which the aforesaid assaults were committed and whether they were necessary to eject Adya Singh from the house or that they were in excess of the right of private defence of property which Ram Krishna and the other accused had in order to maintain their possession of the house in question. Therefore, I am not prepared to convict the aforesaid petitioners Babua and Shibdhyan u/s 323.

The result is that the conviction and the sentences passed upon the accused are set aside. Coutts, J.

I agree that these petitioners must be acquitted. The learned Sessions Judge has found that the complainant and his party were trespassers and it is clear that the accused have not exceeded right of private defence which they undoubtedly had.