BHANWARLAL Vs. JADAWALI AND CHOTHIA

JUDGEMENT

(1.) THIS appeal by the complainant Bhanwar Lal is directed against the order of the Additional Munsif -Magistrate, Merta City, acquitting the accused -respondents of the offence under Section 448 IPC.

(2.) BRIEFLY put, the case of the complainant was that in execution of a decree of a civil court the salesamin of the District Court, Merta, auctioned the house in dispute. The sale was confirmed by the executing court on 22.8 64 and a sale certificate was issued in favour of Bhanwarlal on 19.5.65. On 17 5.66 the sales amin handed over possession of the house in dispute to Bhanwarlal after breaking open its lock, as the judgment debtor accused -respondent Mst. Jadawali was not present at the house. The sales am in also prepared a list of the property lying in the house and handed over to PW 1 Sampatraj vide superdinama Ex. P. 3. Bhanwarlal put certain goods inside the house and locked it. It is alleged that on the night between the 17th and 18th May, 1966 the two accused respondents broke open the lock put by Bhanwarlal and took over possession of the house. Bhanwarlal thereupon filed a report at the police station, Degana, on the same day, that is, 18 -5 -66. On finding that the police was not doing any investigation, he lodged the complaint in the court of the Additional Munsif -Magistrate, Merta City, on 24 -5 -66. The accused -respondents pleaded not guilty and denied that they had committed house -trespass as alleged by the complainant Bhanwarlal. According to them, the house in dispute was in fact never auctioned and Bhanwarlal was never put in possession of it. In defence, the accused - respondents examined two witnesses. The learned magistrate came to the conclusion that the possession of the disputed house was given to the complainant Bhanwarlal on 17 -5 -66. He also came to the conclusion that the two accused -respondants entered the house on the night between 17th and 18th May, 1966 after breaking -open the lock put on by the complainant Bhanwarlal. He, however, held that there was no intent to annoy the complainant, and as such the offence under Section 448 IPC was not made out. He accordingly acquitted the accused respondents. It is against this order that the present appeal has been filed after obtaining special leave under Section 417(3) Cr. P. C.

(3.) IN the present case, the two accused -respondents broke open the lock and took possession of the disputed house after it was handed over to the complainant Bhanwarlal. In these circumstances, there cannot be any doubt that the intention of accused -respondents was to annoy the appellant who was in the possession of the house. The accused -respondents very well knew that the house had been auctioned and the civil court had given possession of it to the complainant Bhanwarlal. The learned counsel for the accused -respondents also did not press this point. The only point which he urged was that, according to him, the house which was taken possession of in execution of the decree, was a different one than the house in which the two accused -respondents were found in possession on 18 -5 -66. In this connection, I have gone through the entire evidence on the record. The boundaries of the house which was auctioned by the civil court, were as follows: