GADADHAR SAHARIA Vs. AMBIKA KUMAR

JUDGEMENT

(1.) THE petitioner was convicted under Section 447, Penal Code, for committing criminal trespass on the land belonging to the complainant. He was also ordered to restore possession of the land under Section 522, Criminal P. C. His appeal was summarily dismissed. He has now invoked the revisional jurisdiction of this Court.

(2.) I have heard the learned counsel and I see no reason to interfere with the finding that the petitioner committed criminal trespass by entering on the land belonging to the complainant and preventing him from re -entering on it by show of force, the finding being essentially on a question of fact on which the two Courts below have concurred. The contention which the learned counsel has pressed is that the order directing the restoration of possession of property under Section 522 is not sustainable in law. He points out that there is no clear finding that the complainant was dispossessed of the land by force or show of force or criminal intimidation. He has also referred to the statement of the complainant, according to which he received information about the trespass from his servant and it was on the next day that he went to the land and found the petitioner and another person ploughing the land. He protested but was threatened. The learned counsel points out that even according to this statement the dispossession could not be said to have been caused by resort to force or show of force or criminal intimidation. This occurred when criminal trespass was committed on the previous day in the absence of the complainant.

(3.) SECTION 522, Criminal P. C., provides that whenever a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation and it appears to the Court that by such force or show of force or criminal intimidation any person has been dispossessed of any Immovable property, the Court may, if it thinks fit, when convicting such person or at any time within one month from the date of the conviction order the person dispossessed to be restored to the possession of the same. It is necessary that the offence should be attended by force or show of force or criminal intimidation and dispossession too should have been caused by such force etc. The question then arises whether it can be said in this case that the offence of criminal trespass of which the petitioner has been convicted was attended by force or show of force and the complainant was dispossessed by such force or show of force. There is no doubt that the complainant has been dispossessed. If dispossession occurred at the time when criminal trespass was committed by entry on the land, there was admittedly no resort to force or show of force or any criminal intimidation. The element of force or show of force comes in if it is held that the offence of criminal trespass was committed or completed on the second day when the complainant tried to enter on the land and was prevented from doing so by threats from the petitioner and his co -accused who has been acquitted. The definition of 'criminal trespass' given in Section 441, Penal Code, provides that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, commits criminal trespass. Similarly anyone who having lawfully entered into or upon such property, unlawfully remains there, with intent there by to intimidate, insult or annoy any such person, or with intent to commit an offence also commits criminal trespass.