SAILENDRA NATH BHATTACHARJEE Vs. JAGADISH MONDAL AND ORS.

JUDGEMENT

(1.) The petitioner is the owner of C. S. Plot No. 3652 of mouza Mahesh. There is a house there which is occupied by his tenants. C. S. Plot No. 3650 of the same mouza is used by the petitioner as a pathway and forms approach to the latrines of the house on C. S. Plot 3652. On Sept. 2, 1960 the petitioner filed a complaint against the opposite parties alleging that on Aug. 15, 1960 the Opposite parties had put up an obstruction on C. S. Plot 3650 blocking the passage to the latrines of the house on C. S. Plot 3652 and that the opposite parties abused them when the petitioner protested. The opposite parties were tried under sections 341 and 504 of the Indian Penal Code. On Dec. 19, 1961 the Opposite Parties were acquitted in respect of the charge under section 504 of the Indian Penal Code but convicted under section 341 of the Indian Penal Code. The petitioner filed an application under section 522 of the Code of Criminal Procedure but this was rejected by the trying Magistrate on Jan. 12, 1962. Thereafter, on March 3, 1962 the petitioner again filed an application under section 522 of the Code before the trying Magistrate, but in view of the previous order of rejection this application was 'filed'. The opposite parties had, in the meantime, filed an appeal against their conviction under section 341 of the Indian Penal Code before the Sessions Judge, Hooghly. This appeal was dismissed by an Assistant Sessions Judge at Hooghly on Jan. 31, 1962. Then on April 2, 1962, the petitioner filed an application before the Assistant Sessions Judge for an order under section 522 of the Code. That application was dismissed. The petitioner has now obtained this Rule against the said order of dismissal.

(2.) Having heard Mr. Roy, Mr. Sanyal and Mr. Sinha, we think that there is no sufficient ground to interfere with the order of the learned Assistant Sessions Judge. An order under section 522 of the Code can be made only if the petitioner has been dispossessed from any immovable property and if the Opposite Parties were convicted of an offence attended by criminal force or show of force or by criminal intimidation. It appears that there is not even an allegation that the petitioner was physically dispossessed from the C. S. Plot No. 3650. What is alleged is that there was obstruction put on this pathway which prevented the petitioner's tenants from proceeding to the latrines. That is no physical dispossession of any immovable property. It cannot, therefore, be said that the petitioner has been dispossessed of any immovable property. Moreover, the opposite parties were convicted under section 341 of the Indian Penal Code but there is no finding that the offence was committed attended by criminal force or show of force or by criminal intimidation. On the facts alleged or found, this case does not come under the requirements of section 522 of the Code. The order of the learned Assistant Sessions Judge refusing to pass an order under section 522 of the Code should not, therefore, be interfered with.

(3.) We may also record that the application before the learned Assistant Sessions Judge who was the appellate court was not made within one month from the date of disposal of the appeal. Lodge, J. in the case of Abdul Mannan Vs. Taiyab Ali, (I.L.R. 1948 Cal. (I) 153) has held that the appellate court can pass an order under section 522 of the Indian Penal Code within one month of the disposal of the appeal. The application in this case was made beyond this period. Thus in any view of the matter, there is no substance in this revisional application. The Rule is, therefore, discharged and the revisional application is rejected.