YASHINKHAN AHMEDKHAN Vs. HUSHANBHAI RAJABBHAI

JUDGEMENT

(1.) 14his matter comes before us on a reference made by learned brother N H. Bhatt J who found that as regards interpretation of sec. 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 thereafter 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 secs. 451 341 and 323 of the Indian Penal Code in the Magistrates Court. In that complaint the learned Magistrate convicted the accused of the offences punishable under sec. 451 323 and 341 of the Indian Penal Code and passed an appropriate order of sentence in respect of each of the three offenses 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 under sec. 456 of the Code. We will be referring to Roshanbibi as the complainant hereafter.

(2.) 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 under sec. 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 II G.L.R. 240. The aforesaid decision was rendered under sec. 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 sec. 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 reVisional 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. Sec. 456 of the code may now be reproduced. It occurs in Chapter XXXIV titled Disposal of property.

(3.) It must be said that sec. 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 criminal force. The other two contingencies viz. conviction of an offence attended 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 sec. 522 showing in it by brackets the portions added by way of amendment of 1923.