ABUL HOSSAIN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS Revision raises two points one of which has not been decided either by this High Court or by any other high Courts. The first question, as contended by Mr. Roy, the learned counsel for the petitioners, is whether: on the evidence, the learned Magistrate was justified in holding all the accused.-petitioners guilty under Section 456/34 of the Indian Penal Code and sentencing each of them to pay a fine of Es. 2001 - each, in default, to suffer rigorous imprisonment for three months each. The learned Magistrate directed that out of the fines, if paid, Rs. 500/- would go to the complainant p. w. 1 as compensation. The learned Magistrate further directed that the complainant; should be restored to possession of the premises in question, being No. 41, bepin Behari Ganguli Street and directed the accused persons to vacate the premises and also directed the Officer-in Charge, Bowbazar P. S. to enforce the order forthwith under Section 522 of the Code of Criminal Procedure.

(2.) MR. Roy, the learned counsel for the petitioners contended that upon the evidence Section 456)34 of the Indian Penal Code could not be invoked to convict and sentence the accused persons. Mr. Banerjee, the learned counsel for the opposite party, in reply, contended that the evidence of p. w. 2 considered by the learned Magistrate clearly showed that all the accused persons came into the room in question at one and the same time. Therefore, the learned Magistrate rightly convicted and sentenced the accused persons under Section 456/34 of the Indian Penal Code in the manner and to the extent I have already observed.

(3.) THE next contention of Mr. Roy was that on the authority of the decision of a Division Bench of this Court in the case of (1) Nanigopal Deb and another v. Bhima Charan Rakshit, reported in 59 cwn 688, the learned Magistrate had no jurisdiction to pass the order under Section 522 of the Code of criminal Procedure. With respect, I must say that the Calcutta decision does not consider the true import of section 522 of the Code of Criminal procedure read with Section 441 of the indian Penal Code. A number of decisions, of other High Courts were placed before me by Mr. Banerjee, the learned counsel for the opposite party viz. (2)M. V. Berankutty Haji v. C. I. Raman and ors. (50 Cr. L. J. 233), (3) Mahabir and ors. v. Rex (50 Cr 1. L. J. 338), (4) Alakal Senappa and ors. v. . The state of Mysore and anr. (AIR 1960 mysore 24), (5) Francis D'souza v. Edward A. K. Gameiro (AIR 1960 bombay 139) and (6) Rajbanahi Thakur v. Chandey Jha and ors. (AIR 1951 pat. 307) and on the authority of those decisions Mr. Banerjee contended that the express' on "attended by criminal force or show of force or by criminal intimidation" as had been explained by their Lordships of the said High Courts consistently would bring the case within section 522 of the Code of Criminal procedure.