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RESTORATION OF POSSESSION BY CRIMINAL COURT – WHEN ARISE ? SEC.456(1) Cr.P.C. = The object and purpose of section 456(1) are to prevent any person gaining wrongful possession of the land by his own unlawful and forcible acts. “In other words the principle of civil law that a person in peaceful possession of land should be protected against dispossession by requiring whoever claims the right to possession against him to go to a competent court and dispossess him only in due course of law is sought to be enforced by empowering criminal courts under S. 522 to direct restoration of possession with a view to see that no man flouts the law and relies upon physical force to achieve his ends.”- Before making an order under section 456(1) of the Cr.P.C. the following three conditions have to be satisfied: – “(1) The accused must be convicted of an offence attended by criminal force or show of force or by criminal intimidation; (2) the court must be of the opinion that the accused dispossessed another person of immoveable property by such force, show of force or criminal intimidation, and (3) the court, in the circumstances of the case must think fit to make an order for restoration of possession. The first two conditions must necessarily be satisfied before an order can be made and the third condition merely invests the court with the discretion whether or not to make an order.”

REPORTED IN/ PUBLISHED IN http://lobis.nic.in/dhc/RVE/judgement/07-06-2013/RVE05062013CRLR3382013.

 CRL.Rev.P.338/2013 Page 1 of 13

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. REV. P. 338/2013
KARTAR SINGH ….. Petitioner
Through: Mr. Kishore Gojoria, Mr. Vikram
Gujral and Mr. Anil K. Gujral,
Advocates.
versus
MAJOR MURLIDHAR & ORS. ….. Respondents
Through: Mr. Anil Sapra, Sr. Advocate with
Mr. Gaurang Kanth and Ms.
Snigdha Sharma, Advocates.
Mr. Manoj Ohri, APP along with SI
Pawan Kumar, P.S. Vasant Kunj.
CORAM:
MR. JUSTICE R.V. EASWAR
O R D E R
05.06.2013
CRL. M.A. 9248/2013
Exemption allowed subject to all just exceptions.
The application stands disposed of.
CRL. REV. P. 338/2013
1. This is a criminal revision petition filed against the order dated
22.05.2013 passed by the Additional Sessions Judge, Patiala House Courts,
New Delhi. The prayer in the petition is for setting aside the aforesaid order
and for restoration of the order passed by the trial judge on 30.01.2013 on the CRL.Rev.P.338/2013 Page 2 of 13
application filed by the revision petitioner under section 456(1) of the Cr.P.C.
in case FIR No.164/1989.
2. The present petition has been filed in the following circumstances.
One Major Murlidhar, the respondent No.1 herein, filed a complaint against
Kartar Singh, the petitioner herein, his father Udai Ram and son Jai Prakash,
which was registered at the Vasant Kunj police station on 02.09.1989 under
sections 448/ 34 of the Indian Penal Code. The background of the complaint
was this. Major Murlidhar had purchased a plot in village Rangpuri in the
name of his wife Kamlesh, respondent No.2 herein, and his mother Lakshmi
Devi and put up a boundary wall, two rooms and a hand pump. They
obtained the possession of the property from the sellers. However, Kartar
Singh and his father and son claimed themselves to be the owners of the
property and trespassed into the said land. A complaint was filed by Major
Murlidhar alleging that Kartar Singh, his father and son had committed house
trespass. The trial court convicted Kartar Singh by judgment dated
01.03.2008 and also passed an order of sentence on 14.03.2008. However, no
order was passed under section 456(1) of the Cr.P.C. restoring the possession
of the property to Major Murlidhar. The order of conviction and sentence on
Kartar Singh was not appealed against and thus became final.CRL.Rev.P.338/2013 Page 3 of 13
3. Since the trial court did not pass an order on the application filed by
Major Murlidhar under section 456(1) of the Cr.P.C., an appeal was filed by
him claiming relief under section 456(1) belatedly. Since at that time there
was no appeal provided against the refusal of the trial court to pass an order
under section 456(1), and in the light of section 372 of the Cr.P.C., the said
appeal was withdrawn by Major Murlidhar on 05.06.2010.
4. On 10.06.2010, Major Murlidhar and his wife Kamlesh, the first and
second respondents herein, filed an application before the trial court claiming
repossession of the property under section 456(1) of the Cr.P.C. This
application was dismissed by the Metropolitan Magistrate (South) New Delhi
by order dated 30.01.2013. According to the MM, even in the complaint
there was no allegation of threat or use of force while trespassing. In the trial,
though the complainant had deposed that there were threats extended to him
by Kartar Singh, it was not recorded that such threats were issued in the
course of the commission of the offence. The complainant, noted the MM,
had deposed during the trial that he found that the plot had been forcibly taken
possession of by Kartar Singh with the help of goondas but there was nothing
in the deposition of the complainant to show upon whom the force was
applied. He was not the eye witness to the use of force or threats allegedly
extended at the time of the commission of the offence. The MM further noted
that none of the witnesses had alleged that any force was used or threats CRL.Rev.P.338/2013 Page 4 of 13
issued in their presence when the offence was committed. In this
understanding of the evidence led during the trial, the MM found himself
unable to hold that the offence was attended by criminal force or show of
force or criminal intimidation. The application was rejected.
5. Aggrieved, the respondents filed an appeal before the Additional
Sessions Judge, Patiala House Courts, New Delhi in Criminal Appeal
No.17/2013. The Sessions Court, after examining the order of the trial court
as well as after hearing both the sides, allowed the appeal with the direction
for restoration of the property to the appellants. In doing so, it gave the
following findings/ reasons: –
(a) The property was initially owned by Kartar Singh’s father. It
was sold to Gagan Naresh Chadha, Pawan Chadha and Vinay Fotedar
who in turn sold the property to the wife of Major Murlidhar and his
mother by registered sale deed dated 13.03.1989. On that date,
possession was handed over to the purchasers. They constructed the
boundary wall, two rooms, etc. out of their own funds and appointed a
chowkidar to protect the property.
(b) Kartar Singh did not challenge the sale deed dated 13.03.1989
or the possession of Major Murlidhar and his wife. Therefore, the title CRL.Rev.P.338/2013 Page 5 of 13
to the property as well as physical possession of the respondents in the
present revision petition remained undisputed.
(c) After the FIR was registered against Kartar Singh, his son and
father for criminal trespass, there was a trial in the course of which
evidence was recorded. Kartar Singh was held guilty of the offence
under section 448 of the IPC.
(d) The reason given by the MM that there was no allegation of
threat or use of force while trespassing is bad in the light of the
evidence led by PW-3, PW-4 and PW-5 during the trial. Even in the
complaint, it was alleged that the complainant was the owner and in
possession of the plot in question and proceedings under section 145
Cr.P.C. were pending before the Court of SDM (South). The
complaint also alleged that despite objections, Kartar Singh, his father
and son had taken possession of the plot in question and kept some
goonda elements. This itself showed that there was threat and
application of force by Kartar Singh and the other accused. PW-3 i.e.
Major Murlidhar deposed during the trial that the accused had forcibly
taken possession of the plot with the help of goondas. His wife
Kamlesh, PW-4 deposed to the same effect. Constable Balraj Singh,
PW-5, deposed that Kartar Singh was arrested inside the plot; there CRL.Rev.P.338/2013 Page 6 of 13
were three or four persons with the accused and when the police
reached the plot, they ran away. These events also supported the
allegation of threat and use of force while trespassing, which the MM
had failed to note.
(e) It was not necessary, as opined by the MM, that there should be
a threat or intimidation in the presence of the owner. The rightful
owners had constructed a boundary wall, gate, two rooms and also put
up a pump in the plot and had locked the gate. A chowkidar had also
been appointed. These are all circumstances which indicated that
possession of the property could not have been taken by Kartar Singh
without the use of force.
(f) The MM was not right in saying that there was no use of force
or criminal intimidation, which is opposed to the evidence of PW-3,
PW-4 and PW-5 in the course of the trial.
(g) Once a person is punished under section 448 of the IPC, that
shows that he committed the offence of house trespass and hence threat
and application/ use of force is inherent in the conviction.
6. For the aforesaid reasons the Sessions Court allowed the appeal and
set-aside the order of the MM passed on 30.01.2013 and directed the
restoration of the possession of the property to the appellants.CRL.Rev.P.338/2013 Page 7 of 13
7. Against the aforesaid order passed by the Sessions Court, Criminal
Appeal No.745/2013 was filed by Kartar Singh before this Court. However,
the appeal was dismissed as withdrawn, with liberty to initiate appropriate
proceedings in accordance with law, by an order passed by a Single Judge
(Siddharth Mridul, J.) on 30.05.2013.
8. Thereafter Kartar Singh filed the present Criminal Revision Petition
praying that the order passed by the Sessions Court on 22.05.2013 may be setaside.
9. I have heard the learned counsel for the petitioner as well as the
learned counsel for the respondent who is present on advance notice. The
object and purpose of section 456(1) are to prevent any person gaining
wrongful possession of the land by his own unlawful and forcible acts. It was
so held by the Madras High Court (Horwill, J.)in M.V. Beran Kutty Haji vs.
C.I. Raman, AIR 1949 Madras 191. Taking note of this judgment, a learned
Single Judge (A. Narayana Pai, J.) of the Mysore High Court in Alakal
Senappa and Ors. v. State of Mysore and Anr., AIR 1960 Mysore 24 held as
follows: –
“In other words the principle of civil law that a person in
peaceful possession of land should be protected against
dispossession by requiring whoever claims the right to
possession against him to go to a competent court and
dispossess him only in due course of law is sought to be CRL.Rev.P.338/2013 Page 8 of 13
enforced by empowering criminal courts under S. 522 to direct
restoration of possession with a view to see that no man flouts
the law and relies upon physical force to achieve his ends.”
10. The more important observation in the Mysore case is what appears in
the second sub-para of paragraph 10 of the judgment. The learned Single
Judge observed: “However, the evidence which supports the conviction will in
a large number of cases support the order under section 522 also”.
11. Similar observations were made by a learned Single Judge of this
Court (Malik Sharief-ud-din, J.) in Prem Chand Sharma vs. State (Delhi
Administration) and Anr., 1985 Criminal Law Journal 374. The learned
Judge observed that the policy of the legislature manifestly seems to be that
nobody should be allowed to thrive on his criminal and wrongful acts.
12. Before making an order under section 456(1) of the Cr.P.C. the
following three conditions have to be satisfied: –
“(1) The accused must be convicted of an offence attended by
criminal force or show of force or by criminal intimidation;
(2) the court must be of the opinion that the accused
dispossessed another person of immoveable property by such
force, show of force or criminal intimidation, and
(3) the court, in the circumstances of the case must think fit
to make an order for restoration of possession. The first two
conditions must necessarily be satisfied before an order can be
made and the third condition merely invests the court with the
discretion whether or not to make an order.”CRL.Rev.P.338/2013 Page 9 of 13
13. The best point in support of the respondents before me is that there was
an order of conviction, convicting Kartar Singh under section 448 of the IPC
and that the said order has not been appealed against. The observations of the
Mysore High Court (supra) to the effect that the evidence which supported the
conviction will also support the order under section 456(1) of the Cr.P.C. are
apposite to the present case. It is difficult to see how in the face of the order
of conviction, it can at the same breath be said that the offence was committed
without criminal force or show of force or criminal intimidation. The learned
counsel for the respondents submitted, and in my opinion rightly, that the
conviction under section 448 is for house trespass which inherently involves
criminal trespass; the definition of criminal trespass under section 441 of the
IPC necessarily involves intimidation and, therefore, the impugned order, in
so far as it finds that Kartar Singh did use criminal force or show of force or
criminal intimidation, cannot be faulted. Apart from this, the Sessions Court
is also right, in my opinion, in holding that there was enough evidence led
before the trial court to show that the respondents were dispossessed of the
plot by use of force. It is at this juncture necessary for me to point out that
under section 456(1), it is not necessary that such criminal force or show of
force or criminal intimidation should have been simultaneous with the
dispossession of the immoveable property. As pointed out by the Mysore
High Court in the judgment cited (supra), it is enough that the dispossession is CRL.Rev.P.338/2013 Page 10 of 13
“attended by force or show of force or intimidation”. According to the
Mysore High Court, these words “may include not only an act done
simultaneously with another act, but also an act done immediately after
another act. So, if the commission of an offence is immediately or shortly
afterwards followed by force or show of force or intimidation, the case will be
covered by this section”. Thus, all that is required is that the force, show of
force or intimidation referred to in the section must be so connected to the
dispossession as to constitute more or less a single event or a single
transaction.
14. It is in the aforesaid light that we have to approach the evidence led in
this case during the trial of Karatar Singh which ended in his conviction.
Major Murlidhar (PW-3) had deposed during the trial that threats were
extended to him by Kartar Singh. The MM in his order on the application
under section 456(1) has observed that Major Murlidhar did not say that the
threats were made to him during the course of the commission of the offence.
This overlooks the statement of PW-3 that in the earlier 2-3 days he had come
to know that the plot had been wrongfully captured (“kabza”) by Kartar
Singh, his father and son. PW-3 had also deposed that when he visited the
plot he found that the accused persons had forcibly taken possession of the
plot with the help of goondas. It must be remembered – this aspect has been
taken note of by the Sessions Court – that the plot in question was secured by CRL.Rev.P.338/2013 Page 11 of 13
a compound wall, a gate and a lock and there was also a chowkidar to look
after the same; but despite all this security, the accused persons had taken
possession of the property by acts which inherently involved the use of force
or show of force or criminal intimidation. Moreover, constable Balraj Singh
(PW-5) had deposed that accused Kartar Singh was arrested inside the plot
and at that time three or four persons who were with him ran away on seeing
the police. I do not see how any inference is possible, other than the inference
that Kartar Singh had undoubtedly used force or show of force or intimidation
while dispossessing the respondents of the property.
15. I now turn to the authorities cited by the learned counsel for the
petitioner. In Subhan vs. State, 1974 Criminal Law Journal 731, the
Allahabad High Court was concerned with a case where it was evident from
the allegations in the complaint as well as the evidence that the applicant had
entered the premises with the consent and permission of the person in
occupation on the assurance of vacating the premises within one week, which
he failed to comply with. There was no evidence to support the allegation
against the applicant in that case that he and his five companions used
criminal force and intimidated the complainant. In fact, the applicant was
acquitted of those charges. There was, therefore, no question of any criminal
force or show of force or criminal intimidation having been employed by the
applicant against the complainant to enter the premises. The applicant was CRL.Rev.P.338/2013 Page 12 of 13
also acquitted of the charge under section 448 of the IPC. The Allahabad
High Court, therefore, held that the applicant, who in that case had been
evicted by an order passed by the Magistrate under section 522(1) of the
Cr.P.C., 1908, should be put back in possession of the premises. The facts are
completely different in the Allahabad case. In Pargan Chandra vs. State of
U.P., 1977 Criminal Law Journal 903, the Allahabad High Court held that if
there is no finding or evidence on record to show that any criminal force was
exercised by the accused in carrying out construction upon the property, the
accused cannot be directed to demolish the construction. In that case, it was a
matter of evidence and nothing was found against the accused to show that
while putting up the construction in the property, he had used any force. This
case is also one which turned on the facts and evidence. In contrast, the case
before me is one where there is an order of conviction under section 448 of
the IPC for house trespass which involves intimidation in taking possession of
any property. The conviction order has become final. Moreover, there is
ample evidence in the present case to show that the dispossession of the
property from the respondents herein was attended by criminal force or show
of force or criminal intimidation by Kartar Singh. In these circumstances, I
am satisfied that the Additional Sessions Judge has come to the right
conclusion in directing the appellant to restore the possession of the property
to the respondents, after evicting by force, if necessary, any other person who CRL.Rev.P.338/2013 Page 13 of 13
may be in possession of the property, with the help of the local police, if
required.
The petition is devoid of merit and is dismissed and consequently Crl.
M.A. No.9247/2013 stands disposed of.
R.V. EASWAR
(VACATION JUDGE)
JUNE 5, 2013
hs

 

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