Yashinkhan Ahmedkhan and Others vs Hushanbhai Rajabbhai and Others

D.P. Desai, J.—This matter comes before us on a reference made by our learned brother N.H. Bhatt, J. who found that as regards

interpretation of Section 456 of the Code of Criminal Procedure, 1973 (the Code), there is a conflict of opinion as disclosed from the judgment of

the Bombay High Court and two subsequent judgments of this Court. In fact, the learned Judge found that there is an inherent conflict between the

two subsequent decisions of this Court also. All the three judgments are by the Single Judge. The facts leading to this revisional application may

now be briefly stated. One Roshanbibi, predecessor-in-title of the present petitioners had obtained a decree for possession of property against

opposite party No. 1, who prior to the suit in which this decree was passed, was a tenant of Roshanbibi. In execution of that decree, actual

possession was taken through the Court by Roshanbibi on April 18,1973. She remained in possession thereof thereafter. However, on March

4,1974, when the property which is a house, was locked, was entered upon by opponent Nos. 1 & 2 herein (who will hereafter be referred to as

the accused"" for the sake of clarity). When Roshanbibi came to know about this, she went to the house and told the accused to go out. Both the

accused, however, refused to go out and instead beat Roshanbibi and prevented her from entering the house. The result was that she had to file a

complaint in respect of offences punishable under Sections 451, 341 and 323 of the Indian Penal Code in the Magistrate''s Court. In that

complaint, the learned Magistrate convicted the accused of the offences punishable under Sections 451, 323 and 341 of the Indian Penal Code

and passed an appropriate order of sentence, in respect of each of the three offences against both the accused. The learned Magistrate further held

that Roshanbibi was dispossessed by the accused by using criminal force; and ordered possession to be restored to her heirs as she had died

during the trial of the complaint. This order was passed u/s 456 of the Code. We will be referring to Roshanbibi as the complainant hereafter.

Being aggrieved by this order of conviction as well as the order for restoration of possession, the accused went in revision to the Sessions Court

by filing Criminal Revision Application No. 55 of 1976. The learned City Sessions Judge, by his order dated September 20, 1976 allowed that

revisional application in so far as the order for restoration of possession passed by the learned Magistrate u/s 456 of the Code was concerned.

The accused did not question their conviction and order of sentence in that revision. The learned Judge was impelled to set aside the order of

restoration of possession because he thought that he was bound by a decision of Raju, J. (as he then was) in Hemaji Taranji v. The State 2 G.L.R.

The aforesaid decision was rendered u/s 522 of the Code of Criminal Procedure, 1898 (the old Code) which is in pari materia with the

present provision in so far as the question posed before us is concerned. It is against this order passed by the learned City Sessions Judge that the

heirs of the complainant have filed this revisional application. As stated in the beginning of this judgment, the question arising in this revision

application pertains to the correct interpretation of the provisions of Section 456 of the Code. Before going to the question of interpretation

however, we may take note of certain findings of fact in the present case which will be in the ultimate analysis relevant for the purpose of deciding

whether the order passed by the learned City Sessions Judge in the present case was correct and legal. These findings are to be found from the

judgment of the trial Magistrate; and we may say that the learned City Sessions Judge has not disturbed any of these findings in the revision

application. The learned Magistrate, to quote his words stated in the first instance. ""This offence took place on 4-3-1973 at 9-00 p.m. There is

truth in what is deposed by the prosecution witnesses that when Roshanbibi came to know that her lock was broken open, she rushed to that room

and when she found both the accused inside the room, she must have commenced quarrel and there is every reason to believe that the accused

must have dealt first blows to her and she must have been driven out of the room by the accused person....Roshanbibi was beaten only with a view

to prevent her from taking possession of the room.... The prosecution side has proved that accused Nos. 1 & 2 had committed trespass into the

room in possession of Roshanbibi. The prosecution side has also proved that accused Nos. 1 & 2 had voluntarily caused simple hurt to Roshanbibi

in aid and abetment of each other. The prosecution side has also proved that Roshanbibi was restrained wrongfully by the accused and she was

legally entitled to possess."" Section 456 of the Code may now be reproduced. It occurs in Chapter XXXIV titled ""Disposal of property"".

(1) When 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 intimidation, any person has been dispossessed of any immovable property, the Court may, if it

thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary, any other person who may be in

possession of the property.

Provided that no such order shall be made by the Court more than one month after the date of the conviction.

(2) Where the Court trying the offence has not made an order under Sub-section (1), the Court of appeal, confirmation of revision may, if it thinks

fit, make such order while disposing of the appeal, reference or revision, as the case may be.

(3) Where an order has been made under Sub-section (1), the provisions of Section 454 shall apply in relation thereto as they apply in relation to

an order u/s 453.

(4) No order made under this section shall prejudice any right or interest to or in such immovable property which any person may be able to

establish in a civil suit.

A bare look at the section will make it clear-and about this there is no dispute before us-that the section contemplates three conditions which must

be satisfied before a Magistrate can pass an order of restoration of possession under Sub-section (1). These conditions are: (1) that the accused

person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, (2) that it appears to the Court that by

such force or show of force or intimidation, any person has been dispossessed of any immovable property and (3) that the order is made by the

Court within one month after the date of conviction.

It must be said that Section 522 of the old Code came to be amended in 1923. Before that, the first condition mentioned above was confined to

one contingency only viz. conviction of an offence attended by use of attended by show of force. The other two contingencies viz. conviction of an

offence tended by show of force or by criminal intimidation were added by the 1923 amendment. This amendment was probably the result of a

decision of the Calcutta High Court rendered long prior to the amendment no doubt-and may be-a decision of the Bombay High Court also. We

may first reproduce the amended Section 522 showing in it by brackets the portions added by way of amendment of 1923.

(1) 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) older (the person dispossessed)

to be restored to the possession of the same.

(2) No such order shall prejudice any right or interest to or in such immovable property which any person may be able to establish in civil suit.

[(3) An order under this section may be made by any Court of appeal, confirmation, reference or revision.)]

In Srihari Shome v. Lal Khan V, Calcutta Weekly Notes, 250, a Division Bench of the Calcutta High Court held that the unamended Section 522

applied only if the dispossession was by actual use of criminal force, and not merely by show of such force. While interpreting the phrase ""an

offence attended by criminal force"" occurring in Section 522(1) before its amendment, another Division Bench of Calcutta High Court in

Ramchandra Boral v. Jityandria ILR Cal 434 held that this phrase means an offence of which criminal force forms an ingredient. It may be

mentioned at this stage that this interpretation of the aforesaid phrase by the Calcutta High Court was accepted by the Bombay High Court in

Narayan Govind v. Visaji ILR 23 Bombay, 494. It was also a case arising u/s 522 before its amendment. Ranade, J, speaking for himself and his

learned colleague stated at page 501, referring to the aforesaid Calcutta decision that the words ""offence attended by criminal force"" mean an

offence of which criminal force is an ingredient. He further observed that mere show of criminal force will not suffice to satisfy the requirements of

the section. As these two decisions stood prior to the amendment of 1923, dispossession of the rightful owner entitled to possession brought about

by an act of trespass committed in his absence would not justify an order u/s 522, because the offence was not committed by use of criminal force

in the sense that criminal force was never an ingredient of the offence of criminal trespass as defined by Section 441 of the Indian Penal Code.

Even prior to 1923, criminal force was separately defined; and certain offences having criminal force as their ingredient were made punishable,

such as Sections 352 to 358 (both inclusive). Therefore, on the basis of this interpretation of the provisions of Section 522 in which the Legislature

used the words ""criminal force"" only and did not use the words ""show of force or by criminal intimidation"", a trespasser could silently walk into the

property of another even by breaking open the lock in the absence of a rightful person in possession and can hold possession of that property. The

rightful owner even by getting the conviction of that person of the offence of criminal trespass cannot get back possession u/s 522. Possibly this

defect was noticed as a result of the afore said judgments of the Calcutta and Bombay High Court; and it was remedied by the Legislature by

adding the words ""show of force or by criminal intimidation."" It is after the amendment of Section 522 after the addition of these words in 1923

that the words ""attended by"" have assumed material significance. The Legislature wanted to bring in a convicted offender who even by show of

force, has dispossessed another person of his immovable property. Similarly, by adding the words ""by criminal intimidation"" the offence of trespass

was also sought to be covered, because the definition as contained in Section 441 of the Indian Penal Code contemplates, inter alia ""intent to

intimidate"" as a necessary ingredient of the offence amending this provision, the Legislature was certainly, widening its original scope as interpreted

by the Calcutta and Bombay High Courts. In this changed situation, therefore, it would not be correct, legal and proper to bind ourselves to the

interpretation put upon the words ""an offence attended by criminal force"" occurring in Section 522 prior to the amendment of 1923. As the

Legislature widened the scope of Section 522, the words ""attended by"" occurring in that provision must, of necessity, receive a wider

interpretation. The narrow interpretation put upon it by the Calcutta and Bombay High Courts that criminal force must be an ingredient of the

offence of which accused is convicted, would not survive now as a result of the subsequent amendment making the provision of Section 522 wider.

It is in this sense that we may say that the view of the Division Bench of the Bombay High Court in Narayan Govind''s case (supra) does not hold

the field after the amendment of 1923. These words ""attended by"" occurring in the amended provision of Section 522(1) came up for interpretation

before a Division Bench of the Allahabad High Court in Mahabir v. Rex AIR 1949 All 228, The Division Bench speaking through Wanchoo, J. (as

he then was) stated in paragraph 7 as under:

In our opinion criminal force or show of force or criminal intimidation as mentioned in this section need not necessarily be an ingredient of the

offence at all. The words ''attended by'' should include an act done simultaneously with or immediately after another act. We speak of evil

consequences attending a course of conduct. There the evil consequences follow the course of conduct. So, if the commission of an offence is

immediately or shortly after followed by force or show of force or criminal intimidation the case will be covered by this section.

Following the aforesaid Division Bench judgment, a learned Single Judge of Mysore High Court in Senappa v. Stale of Mysore AIR 1960 Mys 24

also stated that Section 522 does not require that force or show of force or intimidation should necessarily be one of the ingredients of the offence

of the commission of which the accused has been convicted. We must therefore start with the first proposition that the phrase ""an offence attended

by criminal force or show of force or by criminal intimidation"" is a phrase of wider significance and is not restricted necessarily to cases where

criminal force or show offeree or criminal intimidation is an ingredient of the offence. It will include cases in which a trespasser upon immovable

property succeeds in preventing the true owner from re-entering the property by criminal force or show of force or by criminal intimidation. In such

a case the offence of criminal trespass can be said to have been attended by criminal force or show of force or by criminal intimidation as the case

may be.

Then there is another question to which we must advert. That question is whether use of criminal force or show offeree or intimidation must be

with reference to a person or it would also cover the use of force to a thing or property. On this point again, the Division Bench of the Allahabad

High Court in Mahabir''s case (supra) stated that the use of criminal force or show of force or criminal intimidation must all be with reference to a

person and not with reference to property (vide paragraph. 8). This interpretation laid down by the Allahabad High Court was adopted by a

learned Single Judge, of Mysore High Court in Andanayya v. lrayya AIR 1966 Mys 239. A learned Single Judge of Rajasthan High Court in

Gordhandas v. State AIR 1968 Raj 241, also adopted this interpretation by observing that the words mentioned in Section 522(1) mean criminal

force as applied to a person and not as applied to an inanimate object. However, we find that in a decision of this High Court, in maintaining the

order of restoration of possession, a view was taken which may by some implication, strike a discordant note. This was a case where A.D. Desai

J. sitting singly in Manubhai Ishverrai Trivedi v. Shantilal Ramchandra and Anr. Cri. R.A. No. 71 of 1969 decided on April 22, 1969 applied the

provisions of the section to a case where all that was done was obtaining of possession by breaking open of the lock of the house of the

complainant by the accused. The learned Judge made the following observations which may lead to a discordant note as a necessary consequence:

The accused in committing an offence u/s 453 of the Indian Penal Code had used force as they broke open the lock and took the possession of the

premises. Thus, it is evident that the accused were convicted of an offence in which they had used force and forcibly took possession of the

premises. The petitioner is, therefore, deprived of the possession of the premises by force.

There, the conviction was for the offence u/s 453 only which is an offence of lurking house trespass or house breaking. The order for restoration of

possession was maintained on the basis that the lock was broken open and that is how force was used. A learned Single Judge of Madras High

Court in N. Abdul Hadi Vs. Maju Bi and Others, passed an order for restoration of possession u/s 522 of the old Code. That was a case in which

possession was obtained by breaking open of a lock. The learned Judge said in paragraph 6:

When the respondents effected trespass upon the house belonging to the petitioner in his absence they clearly committed a crime of which as I

have already said, they have been convicted; and they committed the crime using violence, that is to say, by breaking open the door and effecting

entry there into.

We must, therefore, examine the proposition whether the use of criminal force or show of force or criminal intimidation contemplated by Section

456(1) would also include use of such force with reference to property, in cases covered by mere breaking open of lock and entering upon the

property in the absence of the persons entitled to possession thereof and where no other offence is committed. This will depend on the question

whether we should read these words ""criminal force or show of force or by criminal intimidation"" occurring in Section 456(1), in the sense in which

they have been defined in the Indian Penal Code. Section 349 of the Indian Penal Code defines ""force"" and Section 350 ""criminal force"". Section

349 begins with the words ""A person is said to use force to another..."". Section 350 begins with the words ""Whoever intentionally uses force to

any person without that person''s consent... "". The words ""Criminal intimidation"" defined in Section 503 of the Indian Penal Code; and the said

section begins with the words. ""Whoever threatens another with and injury to his person...."" All these provisions, therefore, contemplate use of

force to a person or giving of threat to a person. They do not contemplate administration of force or threat to an inanimate object or thing. Now,

on this point Section 2(y) of the Code is very material. It is a definition section and Clause (y) thereof reads as under:

Words and expressions used herein and not defined but defined in the Indian Penal code have the meanings respectively assigned to them in that

Code.

Of course, this definition is subject to the context to the contrary, because the definition clause starts with the words ""In this Code, unless the

context otherwise requires,"". But there is nothing in the context of Section 456 of the Code which would lead us to give a different meaning to the

aforesaid words used therein. Now, the learned Judges who took a different view from the decision of the Allahabad and Mysore High Courts, did

not refer to the provisions of Section 2(y) of the Code as regards meaning to be given to the words and expressions used in the Code. In our

opinion, therefore, the view of the Allahabad High Court on this proposition is the correct view and must be accepted. We say, with respect, that

we do not agree with the different view which may necessarily arise from the aforesaid observations of A.D. Desai, J. in the unreported decision

mentioned above as well as the decision of the Madras High Court in 1973 CLJ 725.

In the present case, house trespass was committed by breaking open of the lock. Therefore, if we had agreed with the aforesaid view of the

Madras High Court, in N. Abdul Hadi''s case (supra) that in itself would have been sufficient to justify the order u/s 456 in the present case without

examining the further question whether the complainant became dispossessed subsequently when she went to the premises and asked the accused

to go out. But, in the view that we have taken we have as of necessity, to examine the further question calling for the interpretation of the words

attended by criminal force or show of force or by criminal intimidation"" and the meaning to be given to the phrase ""it appears to the Court that, by

such force or show of force or intimidation, any person has been dispossessed of any immovable property."" It must at once be said that the

preponderance of opinion of High Courts on this question is in favour of the interpretation put by the Division Bench of the Allahabad High Court

in Mahabir''s case (supra). The said interpretation as contained in paragraph 7 has been reproduced earlier by us. The other High Courts which

adopted this interpretation are Patna High Court in Rajbanshi Thakur Vs. Chandey Jha and Others, and the Bombay High Court in Francis

D''Souza Vs. Edward A.L. Gameiro, which was decided by a learned Single Judge prior to the bifurcation of the bigger bilingual State of Bombay

into the States of Maharashtra and Gujarat. The said decision was rendered on April 24, 1959. The Mysore High Court also adopted a similar

view in Andanayya''s case (supra). A Division Bench of the Assam High Court Lalit Mohan v. State AIR 1952 GAU107 also took a similar view

and observed that the retention of the possession by a criminal trespasser by show of criminal force amounts to factual dispossession in the eye of

law for which a relief u/s 522, (of the Code) can be given when the Court thinks it justified. The scope for the contrary proposition arises from the

decision rendered by Raju. J. (as he then was) in Hemaji Tarsanji v. State 2 Guj LR 240. In that case the accused were convicted under Sections

453 and 341 of the Indian Penal Code for having broken open the lock of the room in possession of the complainant, for having trespassed upon

the said room and for having wrongfully restrained the complainant from entering the room. Inspite of these facts, the order for restoration of

possession u/s 522(1) was set aside by the learned Judge by making the following observations as regards the scope of Section 522(1) of the old

Code:

It is, therefore, clear that this section applies only to cases where by force or by show of force or by criminal intimidation any person has been

dispossessed of any immovable property. It is not sufficient that criminal force or show of criminal force or criminal intimidation were used. To

attract this section, a person must have been dispossessed of Immovable property by the use of criminal force or show of force or criminal

intimidation. If criminal force had been used after possession of Immovable property had been taken, Section 522, Criminal Procedure, Code,

would not apply, in the instant case, according to the prosecution itself, possession of the room was taken by accused Nos. 2 & 3 in the absence

of the complainant and his son, and threats had been used only when the complainant returned to his room and found that it was in possession of

the accused. The threats or criminal intimidation or criminal force or show of criminal force were, therefore, after the dispossession and not at the

time of the dispossession.

(Emphasis supplied).

The learned Judge held that there being no use of force or show of force at the time the accused broke open the lock and entered in the room, the

order u/s 522 would not be justified. This judgment does not refer to the preponderance of opinion of several High Courts referred to earlier, nor

does it refer to the decision of the learned Single Judge of the Bombay High Court in Francis D''Souza''s case (supra), which speaking with

respect, Raju, J. was bound to follow, as he was sitting singly. If he differed from that view, he should have made a reference to a larger Bench.

This position of law is well-settled.

As against the preponderance of judicial opinion in favour of the interpretation of Section 522(1) by the Allahabad High Court in Mahabir''s

case (supra) no decision of any other High Court taking a contrary view or similar view as that taken by Raju, J. was pointed out.

However, it has been contended on behalf of accused before us that the view of Raju, J. which is implicit in (he observations reproduced above

correct view of the provisions of Section 456. We would, therefore, in the first instance try to ascertain the scope of Section 456 independently of

the preponderance of opinion in favour of the view which is contrary to the view emerging from the observations of Raju, J.

In the first instance, it is clear that the provisions of Section 522(1) of the old Code as a result of the amendment of 1923 gave a wider power to

the Court, the Legislative intent being to see that the person who is convicted of an offence attended by criminal force or show of force or by

criminal intimidation, does not remain upon the property excluding thereby the person dispossessed by such use of force of intimidation. Secondly,

Section 456 as its very terms show, is not confined to cases where offence of trespass only is committed. It generally speaks of an offence

attended by criminal force or show of force or by criminal intimidation. Therefore, first of the two conditions calling for the interpretation in the

present case need not necessarily be confined to an offence of criminal trespass only. When the section was thus framed in a wider language, we

must put a purposeful interpretation on it which would give wider power to the Court against a convicted person who would not part with

possession notwithstanding his conviction, and will thus deprive the rightful person of possession of his property and drive him to a Court of law by

way of a separate action. The learned Single Judge of Mysore High Court in Senappa''s case (supra) stated the object of Section 522 of the old

Code in the following words in paragraph (9):

...the object of this section is to prevent any person gaining wrongful possession of the land by his own unlawful and forcible acts. In other words

the principle of civil law that a person in peaceful possession of land should be protected against dispossession by requiring whoever claims the

right to possession against him to go to a competent court and dispossess him only in due course of law is sought to be enforced by empowering

criminal courts u/s 522 to direct restoration of possession with a view to see that no man flouts the law and relies upon physical force to achieve his

ends.

We respectfully agree with these observations as regards object of his provision. Therefore, this provision has been enacted with a benevolent

object and must receive a purposeful interpretation.

In the first condition, the Legislature has used the words ""attended by"" while speaking of criminal force or show of force or criminal intimidation.

It is obvious, therefore, that the use of criminal force or show of force or criminal intimidation may accompany an offence and need not necessarily

form an ingredient of the offence. Thus, for instance, when a person is convicted u/s 341 of the Indian Penal Code for wrongful restraint, the

wrongful restraint may have been exercised by use of criminal force or show of force or by criminal intimidation. If, therefore, a person rightfully

entitled to possession of property upon which another person has entered goes to that property to tell the person to walk out of the property or

tries as soon as he comes to know of the trespass, to re-enter the property without committing any breach of peace and if he is wrongfully

restrained by use of criminal force or show of force or criminal intimidation, we have a case in which an offence u/s 341 is accompanied by or

attended by criminal force or show of force or by criminal intimidation. Similarly, such a person when he goes to re-enter the property or to tell the

trespasser to go out, is beaten, the offence can be said to be accompanied by criminal force or show of force or criminal intimidation. Thus it is

clear that the first condition does not require that criminal force or show of force or criminal intimidation must necessarily form an ingredient of the

offence.

This is so far as the first condition is concerned and that brings us to the second condition. It speaks of dispossession of a person of any

immovable property by the use of criminal force or show of force or by criminal intimidation. The question is what is meant by the word

dispossessed"" occurring in the second condition? Does it cover the case of a person upon whose property another person has entered and

committed trespass and who goes to the property and tells the trespasser to go out in order to re-enter upon the property peacefully and who is

prevented from doing so by use of criminal force or show of force or by criminal intimidation? It is clear that in such a case the trespasser has

committed an offence u/s 341 of the Indian Penal Code; and when the trespasser is convicted of that offence which has been accompanied by

criminal force, show of force or by criminal intimidation, can it not be said that the person on whose property trespass is committed has been

dispossessed of such property by criminal force or show of force or criminal intimidation? Can it be said in such a case that the aggrieved person

was not dispossessed even though his attempt to re-enter the property was foiled by use of criminal force or show of force or by criminal

intimidation and that he was dispossessed at an earlier stage by the mere entry upon his property in his absence. If we take mere entry upon

property by the trespasser as amounting to dispossession the consequence of such an interpretation would be startling. To take an example, you

lock your house and go out for a stroll; on your return after one hour, you find that another person has broken open the lock and entered upon

your property. If you are prevented from re-entering by that person by use of criminal force or show of force or criminal intimidation, can it be said

that you are not dispossessed at that stage but were dispossessed at the very point of time when in your absence the intruder bad broken open the

lock? In such a case even if you succeed in establishing your case in a criminal court, can it be said that the Court is powerless to restore

possession to you u/s 456, on a supposed notion that as soon as trespass took place you were dispossessed? Can it be said that Section 456 was

not designed for protection of possession of persons like you? If such a view is possible, every person going out for a stroll after locking his house

will have to put a watchman at the house, because the provisions contained in Section 456 will not come to his aid. It can be said without any

hesitation that Section 456 was designed with a view to see that in such case a person rightfully in possession is not driven to play a second innings

on the same ground, incur expenses and be on the streets till the second round of litigation is finally decided.

The fundamental concept of jurisprudence must be borne in mind in this connection. Every person in possession of property who has a right to

possession thereof and upon which another person has committed trespass is entitled to go to his own property and try to reenter the same by

peaceful means, i.e. in a manner which would not result in breach of peace. If his re-entry is prevented by use of criminal force or show of force or

by criminal intimidation, it must be said that the person who had juridical possession of the property vesting in him till then, has been dispossessed

of that property. This is because after the prevention, the person rightfully entitled to possession of the property cannot force his entry into the

property which would result in breach of peace. Such a person goes to a criminal court having found that two offences have been committed, one

of criminal trespass and the other of wrongful restraint and succeeds in securing conviction of the trespasser for these two offences. If such a

person shows to the Court that he is dispossessed of the property by use of criminal force or show of force or by criminal intimidation, there is no

reason why the Court should refuse him the relief u/s 456 merely on the assumed notion that as soon as the initial trespass was committed, the

complainant before the Court was dispossessed of the immovable property. It is common knowledge that the offence of trespass consists of entry

into or upon property in possession of another. As soon as that entry is made with the requisite intent, the offence is committed irrespective of the

question whether the trespasser has remained upon the property after the entry or has walked out without claiming possession of the property. We

must not, therefore, import necessarily the element of taking possession in every act of trespass. Taking of possession, wrongful as it is, must be

treated independently of the act of trespass while interpreting the provisions of Section 456. Now, a trespasser having entered upon the property in

possession of another, does not deprive that another person of his juridical possession, nor his right to re-enter the property. So long as that other

person has a right to possession, juridical possession being vested in him, something further is required to show that he has been dispossessed. We

cannot overlook the use of the word ""dispossessed"" by the Legislature, which is a word of positive import. It is not synonymous with ""out of

possession"" only. Something more is required in order to make a person who is merely out of possession dispossessed. If such a person who is out

of possession remains passive for a long time and does not exercise his right of re-entry soon after he comes to know of the trespass, he can be

said to have been dispossessed as a result of his inaction. If such a person, on the contrary, exercises his right to re-enter upon the property in a

peaceful manner, but in doing so, is resisted and his re-entry is made impossible by use of criminal force or show of force or criminal intimidation, it

is at that stage that the said person can be said to be dispossessed of the property. Similarly, in another case, if a person upon whose property

another person has committed trespass, instead of exercising his right to re-enter upon the property by telling the trespasser to go out goes to the

Court and files a complaint of trespass, it is clear that he is a person who is not prepared to exercise his right of re-entry by peaceful means and is,

dispossessed but not by use of criminal force or show of force or criminal intimidation. The immediate reaction of a person in possession of the

property and having a right to remain in possession thereof, when he finds that another person had entered upon that property, is to go and

remonstrate and see that other person walks out of the property. If at that stage he is met with criminal force or show of force or criminal

intimidation, it is obvious that he cannot indulge in a duel and has to resort to a Court of law. To say that such a person who is prevented from re-

entering his property by criminal force or show of force or by criminal intimidation has already been dispossessed of the property by mere entry

upon that property by the offender in his absence, will be to set at naught the benevolent object behind the enactment of Section 456 of the Code.

Therefore, having examined the provisions of the section unaided by the decisions of the High Courts mentioned earlier, we find ourselves in

complete agreement with the view of the Division Bench of the Allahabad High Court that dispossession does not become complete till the

complainant appears on the scene and has to go away inspite of his protest because his entry has been prevented by use of criminal force or show

of force or by criminal intimidation. It is at that stage that is possession would become complete. We also endorse with respect, the view of

Tarkunde, J. in Francis D''Souza''s case (supra) expressed in the following observations in paragraph 2 of the judgment:

A person in juridical possession of any immovable property cannot be rightly said to be dispossessed as soon as a trespasser occupies that

property. When a trespasser enters into the property in the absence of the person in possession, the latter, when he comes to know of the

trespass, has still the right without recourse to a Court of law to try to secure possession back from the trespasser. In other words, a trespasser

cannot merely by the act of trespass constitutes himself into a person in possession. If, however, the person in juridical possession, after his

physical dispossession, allows a sufficiently long time to pass or adopts some course such as instituting a legal action, from which an inference

arises that he has mentally relinquished the possession which he had physically lost, then he can property held to be dispossessed.

(Emphasis supplied).

With great respect, we would only qualify this observation by reading the words ""after entry upon his property by the trespasser"" in place of the

underlined words ""after his physical dispossession"" in the emphasized portion.

It is contended on behalf of the accused that the word ""dispossessed"" must be given only the meaning of loss of actual possession; and the

concept of juridical possession should not be brought into aid. This contention cannot be accepted in view of the reasons given above and in view

of the purpose behind the enactment contained in Section 456. Similarly the contention that entering into possession by a trespasser of property in

possession of another by itself amounts to dispossession of the person originally in possession also cannot be accepted. Lastly, it was contended

that in Francis D''Souza''s case (supra) earlier judgment of the Bombay High Court in Narayan Govind''s case was wrongly distinguished. This

contention also cannot be accepted. It must be re-emphasized that in the earlier case before the Bombay High Court, there was no charge for an

assault committed on the complainant, and consequently no conviction for that offence can be had. The conviction was for simple trespass only

effected in the absence of the complainant. In such a case therefore, the offence of trespass of which the accused was convicted was not attended

by use of criminal force. Therefore, the first condition in the Bombay decision was not satisfied and there was no question of entering into the

satisfaction of the second condition.

In the present case, in view of the findings of the learned Magistrate reproduced above, it is clear that the offence punishable u/s 341 of the

Indian Penal Code was accompanied by use of criminal force or show of force. In fact, the complainant was beaten. This was done when the

complainant went to the property in order to exercise her right of re-entry and the accused prevented her from re-entering. Therefore on the

findings given, both the conditions in the present case were satisfied.

14.1 In the view that we have taken of the interpretation of this provision, we say, with respect, that the proposition which may emerge from the

observations of Raju, J. in Hemaji''s case (supra), is not good law. Our attention was drawn to another decision of this High Court by another

learned Single Judge viz. R.B. Mehta, J. (as he then was) in Kamalsing v. State3 G.L.R. 993. In that case, no new proposition was laid down and

the case can be distinguished on the facts thereof. In that case, possession of the property was parted with by the complainant in favour of the

accused initially under a leave and license agreement and the person brought on the property under this agreement refused to vacate. On the

complainant asking for possession that person caused wrongful restraint to the complainant from entering upon the property and refused to hand

over possession. It is clear in the facts of that case that the complainant cannot be said to be dispossessed of the property by the action of the

accused.

In the result, the petition must succeed; and it is allowed. The order passed by the learned City Sessions Judge in Criminal Revision

Application No. 55 of 1976 is set aside; and in its place, the-order passed by the learned Chief Metropolitan Magistrate, on March 29, 1976 is

restored. Rule made absolute in these terms subject to the clarification that Ahmedkhan Hajimohmedkhan, petitioner No. 5 before us, who was

one of the heirs of original complainant, having expired during the pendency of this petition, possession will now be restored to the other person

mentioned in the learned Magistrate''s order viz. Amanullakhan Ahmedkhan.