Subhan vs State

Mohd. Hamid Husain, J.—Applicant Subhan has preferred this revision. The trial magistrate by his order dated 15-11-1971 convicted the applicant u/s 448, I, P. C. and sentenced him to a fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for three months. The Magistrate further directed the applicant to hand over possession of the house within one month to the complainant. On appeal by the applicant the learned Sessions Judge by his order dated 16-2-1971 upheld the conviction of the applicant u/s 448, I. P. C but reduced the sentence of fine from Rs. l.000/- to Rs. 500/- and in default of payment of fine as modified by the Sessions Judge, the applicant was directed to undergo rigorous imprisonment for one and a half months.

The applicant along with five others, namely, Ramzan, Luqman Majid. Om Prakash Urf Uma and Uchai was prosecuted under Sections 448, 352, 506 and 147, I. P. C. in the Court of the magistrate on a complaint dated 15-12-1970 filed by Mohammad Mohsin. The allegations in the complaint were that Mohammad Mohsin at the request of applicant Subhan had allowed him to keep his stock of vegetables in the complainant''s house for a week, but after the expiry of one week Subhan did not vacate the premises and in fact started living therein. In spite of request from the complainant, Subhan refused to vacate the premises and also refused to receive written notice to vacate the premises. The notice was affixed to the premises. Thereafter on 15-12-1970 at about 9. A. M. Subhan along with the five other persons armed with lathis came and started abusing the complainant and also threatened him with dire consequences in case the complainant did not allow Subhan to live in the house. In support of these allegations the complainant examined himself and three other witnesses.

Applicant Subhan pleaded not guilty and denied the charges levelled against him.

The trial Court, after considering the evidence on record came to the conclusion that applicant Subhan alone was guilty u/s 448, I. P. C. Applicant was, however, acquitted of the charges under Sections 147, 352 and 506, I. P, C. The other five co-accused, namely, Ramzan, Luqman, Majid, Om Prakash and Uchai were acquitted of all the charges by the trial Court.

According to the allegations in the complaint of Mohammad Mohsin and the evidence adduced in support thereof, the possession of the applicant for a week was that of a licensee. The applicant had entered the premises with the permission of the house-owner but failed to vacate the house within the stipulated period. This may cause annoyance to the house owner but this annoyance cannot be deemed to be an annoyance of the nature as contemplated u/s 441, I. P. C. Once the applicant was allowed to come into the house by the house-owner there is no question of a criminal trespass. In the particular circumstances of this case the remedy for the house owner for the overstay of the applicant in the house was by way of a suit for eviction in the Civil Court. The allegations in the complaint with regard to intimidation and show of force have not been substantiated and the trial Court has acquitted the applicant under Sections 147, 352 and 506, I. P. C. No report with regard to the incident of riot-ins or criminal intimidation was lodged by the complainant at the police station. The complainant had straightway lodged the complaint. The trial Court has rightly acquitted the applicant for the offences under Sections 147, 352 and 506, I. P. C. The dispute between the applicant and the complainant is obviously of a civil nature. Accordingly, the conviction of the applicant u/s 448, I. P. C. and the sentence of fine of Rupees 500/- are set aside and he is acquitted of the charge u/s 448, I. P. C.

The trial Magistrate while -convicting the applicant u/s 448, I. P, C. had also directed possession of the house to be delivered to the complainant. On appeal preferred by the applicant the learned Sessions Judge had stayed the operation of the order of the Magistrate with regard to delivery of possession.

The Sessions Judge dismissed the appeal of the applicant on 16-12-1971. The applicant filed this revision in this Court on 21-12-1971 and on that date this Court passed an interim order staying the realisation of fine and also delivery of possession of the house to the complainant. The very same day i. e. 21-12-1971 when this Court passed the interim order of stay, delivery of possession of the house was taken by the complainant in pursuance of the order of the magistrate. Therefore, the interim order of stay of delivery of possession passed by this Court became infructuous.

The order of the magistrate dated 15-11-1971 directing the applicant to deliver possession of the house within one month to the complainant was passed presumably u/s 522(1) of the Code of Criminal Procedure. The magistrate was clearly in error in passing this order while convicting the applicant only u/s 448, I. P. C. and acquitting the applicant of the charges under Sections 352 and 506, I. P. C.

Section 522 (1) of the Code of Criminal Procedure is to the effect:

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 allegations in the complaint as well as from the evidence of the complainant Mohammad Mohsin, it is evident that the applicant had entered the premises with the consent and permission of Mohammad Mohsin on the assurance of vacating the premises within one week which the applicant failed to do. The allegations that the applicant and his five other companions came and committed noting, used criminal force and intimidated the complainant have not been substantiated and the applicant has been acquitted of those charges. Therefore, there is no question of any criminal force or show of force or of criminal intimidation having been employed by the applicant against the complainant to enter the premises or for his continuance in the premises. Consequently, Section 522 (1). Criminal P. C. under which the order of vacating the premises is purported to have been passed by the magistrate was clearly without any jurisdiction and ab initio void and even if the conviction of the applicant u/s 448, I. P. C. was upheld, the order of the magistrate for handing over possession of the premises could not be legally justified. When in this revision the applicant has been acquitted of the charge u/s 448, I. P. C., the consequent order which should follow his acquittal should be that the applicant who has been evicted as a result of the illegal order of the magistrate should be put back in possession of the premises, In the case of Manki v. Bhagwanti reported in ILR (1905) All 415 : 2 Cri LJ 24 a Division Bench of this Court consisting of Knox and Blair, JJ. held that under Sections 439 and 423(1)(d) the High Court has power, as a Court of revision, to reverse an order passed by a subordinate Court u/s 522 of the Code of Criminal Procedure. In another case Malkhan Singh and Another Vs. Emperor, Waliullah, J., held that I once a conviction u/s 448, I. P. C. is set aside the order passed by the magistrate u/s 522, Criminal P. C. which was obviously passed in consequence of such conviction must also be set aside and the property should be restored to the accused even though the equities may in a sense be in favour of the complainant. Similar view was expressed in two other cases namely, Lal Chand v. Dasondhi reported in AIR 1923 Lah 15 : 24 Cri LJ 493 and Sk. Osman Gani Vs. Baramdeo Singh and Others, .

Sri M. P. Singh, learned Counsel , for the complainant has vehemently contended that even if the applicant is acquitted of the charge u/s 448, 1. P. C. and the order of the magistrate for handing over possession of the house to the complainant is held to be illegal, the applicant who is a rank trespasser, is not entitled to be restored to possession over the house which belongs to the complainant. The learned Counsel has placed reliance on a decision of this Court reported in Ram Prasad and Others Vs. State, . In this case it has been observed that an order passed u/s 522 (1), Criminal P. C. could not be deemed to be a consequential or incidental order so as to be get aside in revision u/s 439, Criminal P. C. The facts of that case are not similar to the facts of the instant case. In that ease Ram Prasad and others were convicted of offences under Sections 147. 447 and 352, I. P. C. and consequently the magistrate passed an order u/s 522, Criminal P. C. directing possession to be restored to the complainant Ram Gopal. In pursuance of the subsequent order, possession was actually delivered to the complainant. On appeal Ram Prasad and others were acquitted by the Sessions Judge on 19-9-1955. Subsequent to the order of acquittal application was moved by the acquitted persons Ram Prasad and others on 20-9-1955 to the Sessions Judge for the restitution of possession over the land in dispute. That application was rejected by the Sessions Judge on the ground that he could not pass an order u/s 522, Criminal P, C. Ram Prasad and others then preferred revision to this Court and the revision was dismissed on the ground that the order u/s 522, Criminal P. C. was an independent order and could not be said to be an ancillary, or a consequental or incidental order vis-a-vis an order of conviction.

A close reading of Section 522 (1), Criminal P. C. clearly shows that an order under this section can only be passed after an accused person has been convicted of an offence (1) attended by criminal force or show of force or by criminal intimidation and (2) 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. Therefore, the order u/s 522, Criminal P. C. would be a consequential or incidental order dependent on an order of conviction as held in Malkhan Singh and Another Vs. Emperor, . In the case reported in ILR (1905) 27 All 415 : 2 Cri LJ 24 a Division Bench of this Court has held that this Court under its revisional jurisdiction can set aside an order passed u/s 522, Criminal P. C. The two decisions cited above and the decision of a Division Bench of the Calcutta High Court reported in Sk. Osman Gani Vs. Baramdeo Singh and Others, fully support my view that an order u/s 522, Criminal P. C. is an incidental or a consequential order dependent on a conviction of a person of an offence which is attended by Criminal force or by show of force or by criminal intimidation and when it appears to the Court that by such force or show of force or criminal intimidation the complainant has been dispossessed of any immovable property. Therefore, I respectfully do not subscribe to the view expressed by Raghubar Dayal, J. in the case reported in Ram Prasad and Others Vs. State, . The order of the Magistrate dated 15-11-1971 directing the applicant to hand over possession of the house cannot by any stretch of imagination come within the ambit of Section 522, Criminal P. C. and, therefore, that order of the Magistrate was illegal.

The question that now arises for consideration is as to whether after holding the order of the magistrate regarding the handing over of possession illegal ab initio, do the circumstances of the case require the applicant, who has been dispossessed on the basis of that illegal order of the magistrate, to be put back in possession ? Sri M. P. Singh, learned Counsel has contended that the applicant had been let in the house for only a week for keeping his stock of vegetables and he misused the good gesture of the complainant by overstaying and refusing to vacate the premises and after the filing of complaint, the applicant tried to obtain an allotment of the premises in his favour from the Rent Control and Eviction Officer, but did not succeed in that attempt and the applicant has already filed a suit for possession of the premises on the ground that he had been illegally dispossessed there from and that civil suit is pending decision in the Court below. On the record there is an application of the applicant dated 28-12-1970 addressed to the Rent Control and Eviction Officer, Deoria. In this application the applicant has stated that he was residing in the disputed premises since 10 or 15 days and that he had no other house to live in and, therefore, he should be allotted the disputed premises and the rent thereof should be fixed. From this application it is clear that the applicant had been residing in the disputed house only for a few days before the complaint was lodged. The learned Counsel for the applicant states that in the civil suit filed by the applicant, issues have been framed between the parties. It may also be mentioned that the applicant neither in the lower appellate Court nor in this revision had challenged the illegality of the order of the magistrate passed u/s 522, Criminal P. C. Therefore, in view of the short duration of the applicant''s stay in the house and the civil suit haying been filed by the applicant which is pending decision, it does not appear to be desirable to direct that the applicant be restored to possession of the house from which he had been ejected in pursuance of the illegal order of the magistrate,

The result is that the conviction of the applicant u/s 448, I. P. G. and the sentence of fine of Rs, 500/- are set aside and the order of the magistrate dated 15-11-1971 directing the applicant to hand over the possession of the house in one month to the complainant is declared invalid. Fine, if paid, shall be refunded to the applicant.

The revision is allowed.