MIDA DASS AND ORS. Vs. THE STATE

JUDGEMENT

(1.) ON the report of one Sampuran Singh the Police sent up a case under Section 448 I.P.C. against six persons of those two died during the pendency of the proceedings and the remaining four, viz. Midha Dass, Arjan Dass, Hardwari Lal and Prem Dass, were convicted and sentenced to one month's rigorous imprisonment each. Sampuran Singh's prayer that possession of the disputed property should be restored to him under Section 522 Cr.P.Code was rejected. All the convicted persons preferred an appeal to the Sessions Judge while Sampuran Singh made a revision petition challenging the correctness, of the Magistrate's order refusing to take any action under Section 522 Cr.P.Code. Both the appeal and the revision petition were dismissed. Midha Dass and others have now come to this Court on the revision side. There is also a revision petition by Sampuran Singh. This order will dispose of the two petitions.

(2.) THE prosecution case was that a house and some vacant land attached to the house were purchased by Sampuran Singh by a registered deed on 24th Maghar, 1999 and the possession of the house and the land was also delivered to him. He continued in possession of both for a considerable time and leased the house and the land to various persons until a couple of days before 13 -5 -2006 when the accused took possession of the house and the land and constructed on the land temporary structures by way of huts. It so happened that on the day the accused trespassed into the house and the land Sampuran Singh was not in the town. He returned on 13 -5 -2006 and when he came to know that the accused had taken possession of his properly he went to them and asked them to vacate it. The accused told him that they would leave the place in a few days but later on refused to do so. The accused in their statements admitted being in possession of the disputed property but pleaded that they had committed no offence because the property did not belong to Sampuran Singh nor was he ever in possession of it. Both the trial Court and the learned Sessions Judge have held that there was ample evidence to prove that Sampuran Singh was the owner of the property and that he was in possession of it till he was deprived of it by the accused. They have further held that the accused while taking possession of the property had the intention to annoy, insult and intimidate Sampuran Singh and consequently their act amounted to criminal trespass. So far as the findings of the Courts below on the questions of fact are concerned they are supported by the evidence, documentary as well as oral, that was produced by the prosecution. It may be said in fairness to the accused counsel that he did not even attempt to challenge the correctness of those findings. What he contended was that the accused entered into possession under a bona fide belief that it was a Dera of the sweepers, the accused are also sweepers that they had no criminal intention whatsoever and consequently, their act, if it can be regarded as trespass, was merely a civil trespass and not punishable as an offence. He cited in support of his contention a single Bench decision of the Rangoon High Court - 'Emperor v. U. Kyaw Zan', AIR 1937 Rang 132 and a decision by the Additional Judicial Commissioner of Oudh, - 'Emperor v. Jagmohan Dass', 75 2 Case 292 (Oudh). In the first case certain land was sold in execution of a decree and the purchasers were given symbolical possession. The person in actual possession who was not a party to the proceedings brought a suit claiming that he had bought the land from the judgment -debtor but the suit was dismissed. While the appeal arising out of the suit was still pending the lessees of the claimant entered the land asserting that he had the right to take possession of it. It was held that under the circumstances there was no criminal trespass as the lessees acted in good faith. It appears from the judgment that the learned Judge while setting aside the accused conviction relied solely upon the decisions of his Court and refused to consider the contrary view held by the other High Courts on the ground that that was not accepted by the Rangoon High Court.

(3.) COMING now to the complainant's petition. As the very words of Section 522 go to show possession of the property for the criminal trespass of which an accused person is convicted can only be ordered if the offence committed is attended by criminal force or show of force, or criminal intimidation and if it appears to the Court that the person in possession has been dispossessed of the property by such force, or show of force, or criminal intimidation. In the present case, it is admitted that the accused took possession of the land and the house in the absence of the complainant, when he was out of Patiala, and it was not even alleged by him that the accused used force, or show of force, to any person who was in possession on his behalf, or they criminally intimidated him. The evidence produced by the prosecution does not even make out that the accused used any force, etc. even in respect of the property of which they took possession, but even if they had used, this would not bring the case within the purview of Section 522 Cr. P. Code, because it is the use of force, etc. against -