CHELLAPPAN Vs. SIVANANDAN

JUDGEMENT

(1.) The revision petitioner moved the Sub Magistrate, Mavelikara by a petition under S.522 of the Code of Criminal Procedure for restoration of the property which was criminally trespassed upon by the counter petitioners, six in number The property in question was a chira reclaimed and enjoyed by the complainant; but on 4-3-69 at about 5 p.m. taking advantage of his absence from the place the accused trespassed into the chira and erected huts thereon. Two new huts were erected, one by accused 3 and 4 and the other by accused 5 and 6. Accused numbers 1 and 2 trespassed into the hut which was already there. On his complaint a case was registered by the Mavelikara police and the accused were charge sheeted before the

(2.) The trespass and the dispossession were admittedly peaceful and in the absence of the complainant. In convicting the accused the learned Magistrate has not found that any criminal force was used in the commission of the trespass.

(3.) Learned counsel relying on Mohan Pal v. State (AIR Assam 107) and Godadhar Saharia v. Ambika Kumar (AIR 1953 Assam 34) argued that even though at the time of Commission of the trespass there was no occasion for the use of criminal force, it is enough if force is applied in retaining the session. In the first mentioned case (AIR 1952 Assam 107) the Assam High Court has observed:-