ABUL HOSSAIN Vs. MASADUL HAQ

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 Rupees 200/ - each, in default, to suffer rigorous imprisonment for three months each. The learned Magistrate directed that out of the fines, if paid, Rupees 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 Genguli 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 455/34 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 Nanigopal Deb v. Bhima Charan Rakshit reported in 59 Cal WN 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., M.V. Berankutty Haji v. C.I. Raman (50 Cri LJ 223) : (AIR 1949 Madras 191)., Mahabir v. Rex. (50 Cri LJ 338) : (AIR 1949 All 228), Alakal Senappa v. State of Mysore, (AIR 1960 Mys 24). Francis D Souza v. Edward A.L. Gameiro. (AIR 1960 Bombay 139) and Rajbanshi Thakur v. Chandey Jha, (AIR 1951 Patna 307) and on the authority of those decisions Mr. Banerjee contended that the expression "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.