ABDUL GAFOOR Vs. ABDUL KUDOOS

JUDGEMENT

(1.) THE petitioner has filed an application in Crl. M. P. No. 789 of 1987 before the learned VI Additional Sessions Judge, Madras Division, under sec. 456 (2), Crl. P. C , for a direction to the respondents to deliver vacant possession of the disputed property to the petitioner. Admittedly, the petitioner filed a criminal case against the respondents under Secs. 448,427,323 and 324, I. P. C, and that case ended in conviction against the respondents and the respondents appear to have filed a revision before the Sessions Court and that was also dismissed. After the conviction by the trial Court, the petitioner herein filed the application in m. P. No. 94 of 1986 under Sec. 456 (1), Crl. P. C , for direction to the respondents to restore the possession of the property to the petitioner. THE learned trial Magistrate dismissed the application on the ground that at the time when the Crl. M. P. No. 94 of 1986 was filed, the respondents herein have already preferred Crl. R. C. No. 145 of 1986 before the learned VI Additional Sessions Judge, Madras Division. THE trial court dismissed the application observing that a revision was pending at that time and that the petitioner should file an application before the revisional court. THEreafter, an application was filed in crl. M. P. No. 789 of 1987 before the Sessions Judge seeking for the same relief under Sec. 456 (2), Crl. P.C During the pendency of the application, it appears that the petitioner has already filed a suit in O. S. Na. 7885 of 1984 before the learned V Assistant Judge, City Civil Court, Madras, for delivery of possession of the property and also for injunction. THE learned Sessions Judge dismissed the Crl. M. P. No. 789 of 1987 holding that a civil suit is pending for recovery of possession and so it was not proper for him to restore possession under sec. 456 (2), Crl. P.C Aggrieved by the order of the learned Sessions Judge, this revision has been filed.

(2.) SEC. 456 (2), Crl. P. C , reads as follows : 'where the Court trying the offence has not made an order under Sub-sec. (1), the Court of Appeal, confirmation or revision may, if it thinks fit, make such order while disposing of the appeal, reference or revision as the case may be.' The learned counsel for the respondents submitted that there is no finding at all that the respondents herein committed trespass by using criminal force. SEC. 441, I. P. C, deals with criminal trespass and that section reads as follows : 'criminal trespass: Whoever enters into or upon property in the possession of another with intent to commit an offence or to, intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit criminal trespass.' SEC. 448, I. P. C. deals with house trespass and it reads as follows : 'whoever commits house-trespass shall be , punished with imprisonment or either description for a term which may extend to one year; of with fine which may extend to one thousand rupees, or with both.' This application has been filed by the petitioner under SEC. 456 (2), Crl. P. C , as there was a conviction as against the respondents for an offence under SEC. 448, I. P. C. attended by criminal force or criminal intimidation. Therefore, the provision under SEC. 456 (2), Crl. P. C. , can be invoked. The learned counsel for the respondents submitted that there was no finding that the respondents had committed trespass by using criminal force and so that SEC. 456 (2), Crl. P. C. , is not applicable. Rebutting the said contention the learned counsel for the petitioner relied upon the decision reported in Manickammal v. Balasundaram Chettiar , 1982 M. L. J. ( Crl.) 581 In the said judgment M. N. Moorthy , J. , of this Court has observed as follows: "the object of SEC. 456, Criminal Procedure Code is to prevent any person gaining wrongful possession of a property by his own unlawful and forcible acts. Where the accused has broken open the lock and entered the house, though no criminal force was used against the person in the occupation of the house, still SEC. 522 (1), Criminal Procedure Code, corresponding to the new SEC. 456, Criminal Procedure Code is applicable. There is nothing in the code of Criminal Procedure, to show that, when the legislature used the expressions "criminal force" or "show of force" in SEC. 522, criminal Procedure Code (SEC. 456 new), it intended to give them the connotation which the authors of the Indian Penal Code had given for the purpose of that code, and hence ordinary dictionary meaning could also be resorted to, as there is no reason why SEC. 522, Criminal Procedure Code, should be interpreted in a manner favourable to the criminal. According to Chamber's Twentieth Century Dictionary "force" means "strength, power, energy, efficacy, validity, influence. . . and "criminal" means "relating to crime, guilty of crime violating laws". In other words, application of criminal force means application of power of strength for a purpose which is criminal in character, regardless of the fact whether it is used against a person or a thing". [ Para s. 6, 7 and 8] The judgment referred to above is on all fours applicable to the facts of this case. In the circumstances, the application under SEC. 456, Crl. P.C , is maintainable. The learned Sessions Judge should hot have dismissed the application. According to the petitioner the provision under SEC. 456 (4), Crl. P. C. , cannot be relied upon by the respondents since they have not filed the suit to establish their right in respect of the disputed property. The respondents are the tenants in respect of the suit property under the petitioner. The provision of SEC. 456 (4), Crl. P.C. is not applicable to the present case, since the respondents have not filed any suit. In the circumstances, the order of the lower court is not proper and therefore it is set aside. In the result, the criminal revision case-is allowed. The petitioner is entitled to get possession of the property from the respondents. It is stated by the petitioner that the respondents are tenants in respect of the suit property under the petitioner. In the circumstances, time by six months is granted for the respondents to deliver possession of the disputed property to the petitioner. With this observation, the criminal revision case is allowed. .