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1961 Supreme(HP) 21
HIMACHAL PRADESH HIGH COURT
C. B. CAPOOR, J.C.
Sant and another – Petitioners
v.
The Union of India - Respondent
Criminal Ref. Nos. 3 and 4 of 1961
Decided On : 4 -7 -1961
Sant Ram, for Petitioner;
J.C. Malhotra, Govt. Advocate, for Respondent (in both cases).
The word 'possession' in Section 447, I.P.C., includes both actual and constructive possession.
Headnote:
CRIMINAL TRESPASS - SECTION 447, I.P.C. - TRESPASS UPON PROPERTY IN POSSESSION OF ANOTHER - INTERPRETATION OF 'POSSESSION' - ACTUAL AND CONSTRUCTIVE POSSESSION - INTENT TO ANNOY - SECTION 522, CR.P.C. - ORDER FOR RESTORATION OF POSSESSION - CONDITIONS.
Fact of the Case:
Petitioners were convicted under Section 447, I.P.C., for criminal trespass on Government land. They pleaded guilty and agreed to give up possession. The Magistrate ordered restoration of the land to the respondent under Section 522, Cr.P.C.
Finding of the Court:
The High Court held that the petitioners could be convicted under Section 447, I.P.C., even though the respondent was not in actual possession of the land, as the word 'possession' in the section includes both actual and constructive possession. The order for restoration of possession under Section 522, Cr.P.C., was set aside as the conditions laid down in the section were not fulfilled.
Issues: 1. Whether the petitioners could be convicted under Section 447, I.P.C., even though the respondent was not in actual possession of the land? 2. Whether the order for restoration of possession under Section 522, Cr.P.C., was valid?
Ratio Decidendi: 1. The word 'possession' in Section 447, I.P.C., includes both actual and constructive possession. The owner of a property is deemed to be in possession of it even though he or any one on his behalf may not be in actual possession. A trespass upon such property results in the dispossession of the true owner. 2. The order for restoration of possession under Section 522, Cr.P.C., is valid only if a person is dispossessed of any immovable property by force, show of force or criminal intimidation. In the instant case, there was nothing to show that the respondent was dispossessed of the disputed land as a result of force, show of force or criminal intimidation at the instance of the petitioners.
Final Decision: The references were accepted and the orders restoring possession to the respondent under Section 522, Cr.P.C., were set aside.
This reference and Criminal Reference No. 4 of 1961 can conveniently be dealt with together as common questions of law arise in both of them.
2. Sant Ram and Munshi Ram, the petitioners, were separately prosecuted for an offence under Sec. 447. I. P. C., for having trespassed upon land belonging to Government. When the petitioners appeared before the Court and the accusations were put to them they entered a plea of guilty and also undertook to give up possession. The learned Magistrate by judgments which have rightly been characterized by the learned Sessions Judge to be sketchy convicted the petitioners and sentenced petitioner Sant to pay a fine of Rs. 40/- and the other petitioner to a fine of Rs. 50/- and ordered the land trespassed upon to be restored to the respondent.
3. Applications in revision were filed before the learned Sessions Judge and in the main two points were raised. Firstly, that the petitioners could not have been convicted of the offence under Sec. 447, I. P. C., inasmuch as the respondent was not in actual possession of the land trespassed upon, and, secondly, that as the criminal trespass was not attended with force or show of force the order for restoration of possession made under Sec. 522, Cri. P. C., was without jurisdiction. The learned Sessions Judge rejected the first contention but was inclined to accept the second and accordingly made the recommendation that the order under Sec. 522, Cri. P. C., be set aside.
4. The relevant portion of Sec. 522, Cri. P. C., runs as below :
"Whenever a person is convicted of an offence attended by criminal force or show of force or by 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 ........... order the person dispossessed to be restored to the possession of the same."
5. It is thus clear that the aforesaid section does not come into play unless a person is dispossessed of any immovable property by force, show of force or criminal intimidation. In the instant cases there was nothing to show that the respondent was dispossessed of the disputed land as a result of force, show of force or criminal intimidation at the instance of the petitioners. The fact that the petitioners agreed to give up their possession would not confer jurisdiction on a Magistrate to order the land trespassed upon to be restored unless the conditions laid down in Sec. 522, Cri. P. C., are fulfilled. The orders for restoration of possession under Sec. 522, Cri. P. C. were thus not sustainable.
6. On behalf of the petitioners it was reiterated that the conviction for the offence under Sec. 447, I. P. C., was bad in law as the respondent was not in actual possession of the disputed land and in support of that contention reliance was placed upon the following cases : (1) Motilal v. Emperor, AIR 1925 All 540, (2) State v. Abdul Sukur, AIR 1960 Cal 189, (3) Soram Parijat Singh v. Thongram Meri Singh, AIR 1960 Manipur 17 and (4) S. Vullappa v. S. Bheema Row, AIR 1918 Mad 136(2) (FB).
7. Before I proceed to refer to the aforesaid cases, I would examine the question as if it were one of first impression.
8. Criminal trespass for which punishment has been provided in Sec. 447. I. P. C., has been defined as below;
"Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence is said to commit 'criminal trespass'."
9. The section consists of two parts. The first part deals with entry which is initially unlawful and the second with entry which is lawful in the beginning but becomes unlawful subsequently. The instant cases are of entry
