Talukdar, J.@mdashThis Rule must be made absolute. The Rule is at the instance of the two accused Petitioners, Sm. Sukdhis Khatick and Sm. Baban Khatick, directed against an order dated February 12, 1973, passed by Sri K. Chatterjee, Presidency Magistrate, Sixth Court, Calcutta, ordering the restoration of possession of the room at the top floor to the de facto complainant Munni Devi in Case No. G.R. 620 of 1970.
2. The facts leading on to the Rule are short and simple. Five accused persons were placed on their trial before the learned Magistrate to answer charges under Sections 447, 448 and 341 of the Indian Penal Code. Three of them were acquitted ultimately by the learned trying Magistrate and the present two accused Petitioners though acquitted by Sri B.K. Misra, Presidency Magistrate, Sixth Court, Calcutta, on July 20,1971, u/s 341, Indian Penal Code, were convicted by the learned trying Magistrate u/s 448, Indian Penal Code and sentenced to pay a fine of Rs. 50 each, in default to suffer simple imprisonment for a period of one month each. An application thereafter followed u/s 522, Code of Criminal Procedure, at the instance of the de facto complainant Munni Devi. The application has had also a chequered career and at one state there was a revisional application before the High Court which sent it back on remand. After the case came back it was disposed of ultimately by Sri (K. Chatterjee, Presidency Magistrate, Sixth Court, Calcutta, on February 12, 1973. By that order the learned Presidency Magistrate directed restoration of possession of the room to the de facto complainant Munni Devi. This order has been impugned and forms the subject-matter of the present Rule.
3. Mr. Gurudas Bhattacharya, Advocate appearing in support of the Rule on behalf of the accused Petitioner, made a short submission. Mr. Bhattacharya contended that the essential ingredients of Section 522, Code of Criminal Procedure, have been thrown to the four winds by the learned Presidency Magistrate and the resultant order has been bad and repugnant. In this context, Mr. Bhattacharya submitted that the offence must be attended by criminal force and criminal force within the meaning of Section 350, Indian Penal Code, must be force used to any person without that person''s consent and cannot cover an incident where force is used to an inanimate object. Mr. Bhattacharya relied on the decision reported in
4. Having heard the learned Advocates appearing on behalf of the respective parties and on going through the materials on record I hold that there is a considerable force behind the submission of Mr. Gurudas Bhattacharya. A reference is necessary to the material provisions of Section 522, Code of Criminal Procedure, enjoining that
whenever a person is convicted of an offence attended by criminal force or show of force or 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.
Applying the said yardstick to the facts of the present case I find that although the two accused persons who are the Petitioners in the present Rule were convicted by the learned Presidency Magistrate u/s 448, Indian Penal Code, on July 20, 1971, the offence of which they were convicted was not attended by criminal force to the judgment passed by Sri B.K. Misra, Presidency Magistrate, Sixth Court, Calcutta, convicting the two Petitioners, I find that he has found unequivocally that during the absence of the de facto complainant''s son-in-law, Ram Bahadur Chhetri, the accused persons made criminal trespass into the said room by breaking open the padlock and they remained there after removing the belongings of Ram Bahadur and his wife there. Specifically, therefore, the force used is an inanimate object, namely, the padlock. A confusion very often prevails as to what is meant by the words ''criminal force'' and for the proper definition one has to turn to Section 350 of the Indian Penal Code. It lays down that whoever intentionally uses force to any person without that person''s consent, in order to the committing of any offence, etc. is said to use criminal force to that other. Bereft of all verbiage, therefore, criminal force is the force used to any person and not to any property. There is an imprimatur of judicial decision on it, but without multiplying the cases on the point a reference may be made to the case of Nani Gopal Deb v. Bhima Charan Rakshit Supra. Mitter J. delivering the judgment of the Division Bench held that when the entry into the rooms in question was made by the accused in the absence of any person, such entry could not have been attended by criminal intimidation and although the trespass continued its continuance was not responsible for the initial dispossession which was not attended by criminal force within the bounds of Section 350, Indian Penal Code. The Division Bench, accordingly, set aside the order of the learned Magistrate u/s 622(1), Code of Criminal Procedure. I agree with the decision and applying the said yardstick in the facts and circumstances of the present case, there has at best been use of force on the padlock but not on the de facto complainant or her son-in-law or on the latter''s wife. Further, the criminal force must be used at the time of the initial dispossession and it will not do that the same was used subsequently when certain persons came to protest. The learned Presidency Magistrate, appears to be under a misapprehension because he proceeded to find that as the de facto complainant returned and tried to enter into that room, she was restrained by the accused persons from entering into that room. He appears to proceed on the footing that the subsequent restraint put forward by the accused persons on the later entry by the de facto complainant into the room in question constitutes criminal force within the ambit of Section 350, Indian Penal Code. It has never been intended by the Legislature and as such, on such finding the case cannot come within the bounds of Section 522, Code of Criminal Procedure. The Division Bench has made that clear. Mrs. Sanyal pinpointed the observations made by Bagchi J. in the case of Abul Hossain v. Masadul Haq Supra. Bagchi J. undoubtedly held therein that the subsequent use of criminal force would make out an offence u/s 448, Indian Penal Code. He has distinguished the principles laid down in Nani Gopal Deb v. Bhima Charan Rakshit Supra with great respect to my learned brother, I would prefer the principles laid down by the Division Bench and abide by the same. In this case, in view of the clear and categorical finding arrived at by the learned trying Magistrate on July 20, 1971, that the criminal force used on the de facto complainant was used on a latter occasion, I ultimately hold that a subsequent use of criminal force, even if it be found to be so, cannot retrospectively convert an earlier incident into an offence of trespass and bring the case within the ambit of 522, Code of Criminal Procedure; The contentions raised by Mr. Bhattacharya, accordingly, succeed.
5. It was incidentally submitted that the de facto complainant is a lady and she is prejudiced by the factum of dispossession. It was even urged by Mr. Goswami appearing on behalf of the de facto complainant that it is expedient in the interests of justice that the helpless lady should be allowed to come back and the order passed by the learned Presidency Magistrate may not be interfered with in revision. I have given my anxious consideration to the matter and I have already given the steps of my reasoning to hold otherwise. Justice is in accordance with law and when there is an alternative remedy provided for under the law of the land for getting back possession of the property, the de facto complainant, if so advised, may seek her redress in the civil forum. The bounds of Section 522, Code of Criminal Procedure, cannot be explored to bring within its ambit the border-line case or cases which are clearly ruled out by the said provisions. On ultimate analysis, therefore, I hold that the finding arrived at by the learned Presidency Magistrate are bad in law and improper and should in the interests of justice be set aside.
6. In the result, the rule is made absolute and I set aside the order dated February 12, 1973, passed by Sri K. Chatterjee, Presidency Magistrate, Sixth Court, Calcutta, in Case No. G.R. 620 of 1970.
