KRISHNAN MOOTHAN Vs. V K A KRISHNANKUTTY MOOTHAN

JUDGEMENT

(1.) This petition is by a person who has been convicted under S.447 of the Indian Penal Code, and it is directed against an order made by the appellate court under S.522 of the Criminal Procedure Code, 4 1/2 months after it had confirmed the conviction in appeal. The order was made on an application presented three months after the confirmation.

(2.) I am satisfied that the order complained against cannot stand for the simple reason that the essential requirement of the offence having been attended by criminal force or show of force or by criminal intimidation, and of dispossession having been effected by such means, is not present. The conviction is based on the finding that the accused, who had an easementary right of passage through the property in question (the verandah of a building) squatted there; and from this both courts inferred that his intention must have been to intimidate, or at least to annoy, the complainant. Neither in the complaint, nor in the sworn statement, was there any allegation of criminal force or show of force; nor was there any evidence to this effect. In fact, the order under revision expressly states that counsel for the complainant admitted that there was no criminal force or show of force, and there is a definite finding therein that the conviction was not attended by criminal force or show of force. (See Para.6 and 7). Nevertheless the appellate court thought that S.522 of the Criminal Procedure Code applied because the conviction was attended with sufficient ingredients to constitute criminal intimidation.

(3.) Counsel for the complainant has taken me through the judgments of both the courts in the main proceedings and even through the evidence, in a vain search for sufficient ingredients to constitute intimidation. There appears to be not a whisper anywhere of the accused having threatened any person with injury, either in committing the offence or before or after the commission. The most that counsel has been able to discover is a statement by the complainant in his evidence that he questioned the accused regarding the propriety of his conduct. From this it is said that criminal intimidation is a necessary inference, and the decisions in Berankutty Haji v. C. I. Raman ( AIR 1949 Mad. 191 ), Mahabir v. Rex ( AIR 1949 All. 228 ), Harakanta Biswas v. Suvak Singh (ILR 1951-2 Calcutta 357), and Alakal Senappa v. State of Mysore (1959 MLJ (Criminal) 889) are cited in support of this argument. It is sufficient to say that none of these decisions countenance such a proposition. All of them insist on the accused displaying a readiness to use force and thus scaring away the victim of his offence.