RABINARAYAN MISHRA Vs. HARIPRASAD SHARMA

JUDGEMENT

(1.) The question urged in this revision is whether while convicting a person Under Section 448, IPC because of having committed offence under part -III of Section 441, IPC of the Orissa amendment, direction can be issued Under Section 456 of the Code of Criminal Procedure to deliver the premises to the complainant. The opposite party was admittedly a tenant in the house of the petitioner -complainant and because he did not vacate the house in spite of the necessary notice served upon him, the petitioner filed the complaint alleging an offence Under Section 448, IPC to have been committed. On trial the opposite party was convicted of the offence but the learned Magistrate refused to restore possession of the house to the complainant being of the view that Section 456 of the Code of Criminal Procedure was not applicable and that the decision cited on behalf of the petitioner, 48(1979) CLT 519 (Dhani Dibya v. Kashinath Nanda), also was not applicable to the case. It is this order of the learned Magistrate which is impugned in this revision.

(2.) SECTION 456, CrPC on its own term applies only if a conviction has followed because of an offence committed attended by criminal force or show -of force or criminal intimidation. Hence when a trespass as defined Under Section 448, IPC is attended by such ingredients and the accused is convicted of the offence, a direction for restoration of the premises is possible. Section 441, IPC of the Orissa Amendment consists of three parts, the first two of which deal with trespass with intent to commit an offence or to intimidate, insult or annoy any person. For the third part of the section such ingredients are not required.

(3.) THE ambit and scope of Section 441, IPC were considered in detail in 1990(I1)OLR 446 (Savani Transport Ltd. and Anr. v. Kamraju Bisoi) pointing out that where it is a case of a tenant not vacating the premises, even after receipt of the notice served in accordance with the provision, it is the third part of Section 441, IPC that becomes applicable. There is however no corresponding provision in Section 456, CrPC that even where the offence is not committed by adoption of any criminal force or criminal intimidation, it is yet possible for the Magistrate to order restoration of possession of the property if he finds that one who had lawfully entered into or upon the property had remained there with intention of taking unauthorised possession or making unauthorised use of such property or has failed to withdraw from such possession or use when called upon to do so by the entitled person by notice in writing duly served upon him. Such a provision being absent in Section 456, CrPC, the Magistrate would be plainly without authority to direct restoration of possession of the property under that section. Until such a. corresponding amendment is carried out in Section 456, CrPC, that provision cannot be utilised to direct restoration of the house.