SUKDHIS KHATICK Vs. STATE

JUDGEMENT

(1.) This Rule must be made absolute. The Rule is at the instance of the two accused Petitioners, Sm. Sukdhis Khatick and Sm. Baban Khatick, directed against an order dated February 12, 1973, passed by Sri K. Chatterjee, Presidency Magistrate, Sixth Court, Calcutta, ordering the restoration of possession of the room at the top floor to the de facto complainant Munni Devi in Case No. G.R. 620 of 1970.

(2.) The facts leading on to the Rule are short and simple. Five accused persons were placed on their trial before the learned Magistrate to answer charges under Ss. 447, 448 and 341 of the Indian Penal Code. Three of them were acquitted ultimately by the learned trying Magistrate and the present two accused Petitioners though acquitted by Sri B.K. Misra, Presidency Magistrate, Sixth Court, Calcutta, on July 20,1971, under Sec. 341, Indian Penal Code, were convicted by the learned trying Magistrate under Sec. 448, Indian Penal Code and sentenced to pay a fine of Rs. 50 each, in default to suffer simple imprisonment for a period of one month each. An application thereafter followed under Sec. 522, Code of Criminal Procedure, at the instance of the de facto complainant Munni Devi. The application has had also a chequered career and at one state there was a revisional application before the High Court which sent it back on remand. After the case came back it was disposed of ultimately by Sri (K. Chatterjee, Presidency Magistrate, Sixth Court, Calcutta, on February 12, 1973. By that order the learned Presidency Magistrate directed restoration of possession of the room to the de facto complainant Munni Devi. This order has been impugned and forms the subject -matter of the present Rule.

(3.) Mr. Gurudas Bhattacharya, Advocate appearing in support of the Rule on behalf of the accused Petitioner, made a short submission. Mr. Bhattacharya contended that the essential ingredients of Sec. 522, Code of Criminal Procedure, have been thrown to the four winds by the learned Presidency Magistrate and the resultant order has been bad and repugnant. In this context, Mr. Bhattacharya submitted that the offence must be attended by criminal force and criminal force within the meaning of Sec. 350, Indian Penal Code, must be force used to any person without that person's consent and cannot cover an incident where force is used to an inanimate object. Mr. Bhattacharya relied on the decision reported in Nani Gopal Deb v/s. Bhima Charan Rakshit : 59 C.W.N. 688. Mr. Santi Ranjan Goswami, Advocate, appeared on behalf of the de facto complainant opposite party No. 2, Munni Devi. Mr. Goswami submitted that the findings of fact arrived at by the learned Presidency Magistrate should not be interfered with in revision, more so when the accused persons, have been convicted under Sec. 448, Indian Penal Code. Mrs. Uma Sanyal, Advocate appearing on behalf of the State, also joined issue. Mrs. Sanyal submitted that the essential ingredients of Sec. 522, Code of Criminal Procedure, have been established and the learned Presidency Magistrate while convicting the two accused Petitioners under Sec. 448, Indian Penal Code, found, inter alia, that when the de facto complainant returned and tried to enter into the room in question she was restrained by the accused persons from entering into the room. This, according to her, satisfies the essential ingredients of Sec. 522, Code of Criminal Procedure, to enable the Court to restore possession of the immovable property. Mrs. Sanyal also referred to a case decided by Bagchi J. in Abul Hossain and Ors. v/s. Masadul Huq, (1972) Cri. L.J. 1499.