MOHINI MOHAN CHOWDHRY Vs. HARENDRA CHANDRA CHOWDHRY

JUDGEMENT

(1.) The question submitted to us is this: "Can a Magistrate, while convicting an accused under Secs.341/114 the Indian Penal Code, for wrongfully restraining a person by the erection of a hut or by any similar act of obstruction, order that the hut or other means of obstruction should be removed?" In my opinion, the Magistrate has no jurisdiction, under the sections referred to, to make such an order, and I say this with all respect to the authority cited. No such power is vested in the Magistrate either under the Indian Penal Code or under the Code of Criminal Procedure, and, in the absence of such statutory power. I fail to see how the order could properly have been made. I wish. I could have arrived at a different conclusion as expediency and common sense point in that direction but having regard to the facts found in this case, and to the terms of Section 522 of the Criminal P. C., the order may be supported. I see no reason for putting a narrow construction upon that section. Here the offence was attended by criminal force, and as the complainant was dispossessed by reason of the obstruction complained of, the case appears to me to fall within the section. The order then of the Magistrate may be sustained on this ground. It is true that this point has not been referred to us, as it was not raised before the -Referring Bench: but I can see no reason, as it has been argued before us, and all the facts are before us, why we should not express our opinion upon it. Prinsep, J.

(2.) I also agree that the order for the removal of the hut is not one which the Court is competent to pass, within the powers conferred upon it by the Criminal P. C., The matters in which a consequential or incidental order may be passed, in addition to a conviction, are expressly set out in the Criminal P. C.; and, in my opinion, the powers of a Court are limited to those. The order in this ease, however, could be passed under Section 522 of the Criminal P. C., inasmuch as on the finding of the Appellate Court, criminal force was used when the complainant and others objected to the obstruction, which constitutes the offence of wrongful restraint, the offence of which the petitioners have been convicted. That offence was therefore attended by criminal force within the terms of Section 522. I am aware that there are cases in which it has been hold that the offence, for which the conviction has been had, must be one of which criminal force is an ingredient. But I am not prepared to take such a contracted view of the terms of that section. The law says that the offence must be attended by criminal force, not that criminal force must necessarily form a portion of the offence. The order, therefore, should be maintained as though made under Section 522. Ghose, J.

(3.) I agree in the judgment that has been delivered by my Lord.