HEMAJI TARSANJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this Criminal revision application it is urged that the order passed by the learned Sessions Judge of Ahmedabad under sec. 522 Criminal Procedure Code is erroneous and should be set aside. Accused Nos. 2 and 3 who were the servants of accused No. 1 were convicted under sections 453 and 341 Indian Penal Code.

(2.) The prosecution case was that on 21-5-59 the complainant Rambhai closed his room No. 21 and went to his son who was at the College. In his absence according to the prosecution the accused broke open the lock of the room and took possession of it and when the complainant returned he saw that the lock of his room had been broken open and accused Nos. 2 and 3 were removing household goods from the room and throwing then outside in verandah. When the complainant asked them why they were throwing the goods the complainant was threatened with violence. He filed a complaint and the prosecution ended in the conviction of accused Nos. 2 and 3 under sections 453 and 341 I. P. Code for having broken open the lock of the room and for having wrongfully restrained the complainant from entering his room. The learned Sessions Judge held that accused Nos. 2 and 3 had taken the law into their own hands and threw out the goods and when the complainant arrived he was threatened and obstructed in taking possession of his room. Therefore according to the learned Sessions Judge this is a case of criminal force being used and also criminal intimidation. Therefore according to the learned Sessions Judge the case fell under section 522 Criminal Procedure Code. He therefore ordered that possession of room No. 21 should be handed over to the complainants son. Sub-section (1) of section 522 Criminal Procedure Code reads as follows :

(3.) 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 and 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.