USMAN MIYA Vs. AMIR MIYA

JUDGEMENT

(1.) THE only point I am concerned with in this application is whether this Court can or should now pass an order under Section 522, Criminal P.C., putting the applicant in possession of the house. The revision application of the non-applicant was dismissed by my learned predecessor, Kotval, O.J.C., on the 30th of October last. The applicant's petition now is that the findings of both the lower Courts show that he was dispossessed by the non-applicant either by "criminal force" or by a show of criminal force.

(2.) ON behalf of the non-applicant it has been urged that there has been no finding by the lower Courts in connexion with the question of criminal force or show of criminal force and I have been referred to the decisions in Bhagbat Shaha v. Sadique Ostagar [1912] 39 Cal. 1050, Sadasib Mandal v. Emperor [1914] 18 C.W.N. 1150, Batakala Pottiavadu, In re [1902] 26 Mad. 49, Churaman v. Ramlal [1903] 25 All. 341 and Mohunt Luchmi Dass v. Pallat Lall 23 W.R. Cr. 54, in this connexion. These cases are at authority for the proposition that a person, in whose favour an order under Section 522, is made, must have a finding in his favour that he was dispossessed by the use of criminal force. It is pertinent, first of all, to point out that all these decisions have reference to the old Criminal P. C, whereas an important amendment has been introduced in the new section. It is clear on the findings of both the trying Magistrate and the Magistrate, 1st class, that what the non-applicant did in this case was to break open the lock of the complainant's house, to throw out all the property belonging to him therefrom, and to put a lock of his own on the house thereafter. The evidence on record leaves not the slightest doubt to my mind that in this case the element of criminal force used to a person within the definition contained in Section 349, I. P. C, was present. Not only the statement of the complainant himself as a witness, but also those of Nanhubeg (P. W. 2) and Indersha Daoo (P. W. 3) clearly show that the element of criminal force to a person was present and, in those circumstances, on the findings arrived at by the lower Courts the case certainly to my mind comes within the purview to Section 522.