1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL REVISION APPLICATION NO.75 OF 2000 Raghunath B. Rashinkar (Since deceased) by his L.Hs. & Rs. Mrs. Kusum R. Rashinkar & Ors. ...Applicants Vs. State of Maharashtra & Anr. ...Respondents Mr.Sanjeev J. Rairikar i/b. Shankar Deshmukh Advocate for the Applicants Mrs.A.A.Mane, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 7TH NOVEMBER, 2009 ORAL JUDGMENT: 1.This is a Revision Application which has traversed several decades in our Criminal Justice system. Since about 1970, 40 years ago Civil Proceedings were followed, prosecuted and adjudicated upon between the original complainant and the original accused. The original complainant and the original accused having expired, their respective heirs and legal representatives are brought on record. They shall all be referred to as complainant and accused respectively. The original complainant under C.C.No.153/1982 was the owner and landlord of House No.1700, R.S. Kedari Road, Poona-1. 2 rooms on the first floor were tenanted to 2 one Esa Hussain Fidhali. 2.The complainant obtained a decree in his litigation with his original tenant. He filed Execution Proceedings being Darkhast No.1582/1975. After several hearings an order for breaking open the locks with police protection came to be granted. The complainant sought to execute that decree under those execution proceedings as per that order. He attended the property for which he had obtained the decree with the Court Bailiff, panchas and the police on 17th April 1982. He obtained vacant possession. He affixed his locks on the door. Hence, 12 years after the initial litigation, he obtained its fruits. Alas, this remained with him for only about a week. The original accused broke open the locks of the complainant and got in possession. On 25th April 1982 the complainant was abused and threatened and prevented from being in possession. Consequently the original complainant was frustrated in his efforts to secure possession by authority of law on account of the possession being obtained by the original accused. A complaint came to be filed for offences punishable under Sections 448,451,454,504 and 506 of the I.P.C. 3.In the trial Court the Complainant s daughter examined herself as P.W.1. She deposed that on 17th April 1982 her father took possession as given by the Small Causes 3 Court under the Darkhast/Execution Application. She was present. The house was locked by putting up 3 locks. The articles of the tenant were put outside the house. In her cross examination she has deposed that the work of the Bailiff of giving possession went on till 10.40 a.m. The accused was present. Her further cross examination shows that the accused was present since 9.00 a.m. The Bailiff started the work of taking/giving possession at 9.20 a.m which continued till 10.40 a.m. She has refuted the suggestion that there was any stay of order of any Court passed in Civil Suit No.1251/1981 pending between the accused and the complainant. She has refuted the suggestion that the accused has obtained any stay pending taking/giving up possession or that the Bailiff did not accept the same. Her cross examination does not show at what precise time the stay order was shown to her by the accused or the Bailiff. Consequently, the details of what transpired for taking/giving possession has not been disrupted in her cross-examination. 4.The Bailiff has been examined as P.W.2. He was handed over the warrant of Darkhast No.1582/1975. He executed the Darkhast and gave physical possession to the Complainant. The Complainant locked the house in his presence. His evidence shows that thereafter, the accused had brought the stay order. It runs thus:- 4 Then accused had come with the stay after I handed over possession to the Plaintiff . His deposition shows that he received the stay order at 10.50 a.m. Though his deposition shows that he handed possession at 9.40 a.m, it appears to be a typographical error since the possession work was continued till 10.40 a.m. His later evidence shows that the work was completed at 10.40 a.m when he came down. The evidence, therefore, shows that by 10.40a.m when the legal formalities were completed, possession was handed over. His cross-examination further shows an assertion that the house hold articles were taken out of the suit premises. 5.The accused examined a neighbour to show that the aforesaid did not happen. As per the case of the Complainant the evidence of the witness of the accused shows that the incident took place on 17th April 1982. He saw the Bailiff removing house hold articles. All that he states is that the stay order was obtained from the Court and therefore, nobody put locks on the house. If that was truthful evidence, the complainant would have made the application before the Executing Court for further orders upon his execution application/Darkhast. That has not been done. That 5 itself shows that the complainant took possession as averred by him. It may also be mentioned that if the stay order was shown prior to the possession being taken/handed over and if the complainant has been put in possession by the Bailiff, the accused would have taken out Contempt Proceedings. No such proceedings have been taken out. 6.A reading of the evidence shows, as has been seen in the 2 concurrent findings of the Courts, that the complainant obtained the decree which he sought to execute. He obtained the order in execution for taking forcible possession with police assistance. There is no reason for the complainant to stop obtaining possession. There is nothing to show or suggest that the possession was not taken under the procedure established by law, which the complainant was entitled to have continued. 7.The Complaint is not merely on trespass. It shows the use of force along with criminal trespass and in the act of obtaining such trespass. The relevant part of the complaint showing dispossession of the Complainant by force runs thus:- The complainant has been dispossessed by show of force by the accused who when the complainant went on the premises on 25.4.82 at about 10.00 a.m abused and threatened the complainant in presence of the witnesses . 6 The evidence of the Complainant s daughter P.W.1 with regard to the show of force runs thus:- On 25.4.1982 at about 10 a.m we went to the house and I saw the locks of the house were broken and the accused was sitting in the house, he started quarreling with us. Accused gave push to my father. Locks were not there. 8.This evidence shows the criminal force used by the accused. The criminal trespass had taken place prior to 25th April 1982. The house locks were broken. Hence, the complainant s locks were not there and the accused was sitting in the house. But, on 25th April 1982 the accused started quarreling with the Complainant s daughter as well as her husband and father, who had gone to the house. The Complainant s father who was still alive was an old man. He was pushed. He took recourse to law once again. That is how he went to the police station to lodge his complaint. 9.It is argued on behalf of the accused that this evidence does not show criminal force, because the Complainant was a cripple. Cross-examination of P.W.1 shows that the Complainant was walking with 2 sticks, one in each hand. He was able to take steps, but he walked slowly. Consequently, a push prevented him from 7 coming into the house, which he obtained under lawful authority by filing due legal process. This act shows not only criminal trespass, but criminal trespass with use of force. 10.The learned J.M.F.C. Cantonment Court, Pune has correctly appreciated the evidence and convicted the original accused for offence punishable under Sections 451 and 454 of the I.P.C. The accused was sentenced to suffer Simple Imprisonment till the rising of the Court and to pay fine of Rs.500/-. The accused has paid the fine. Hence the original accused accepted his conviction. The possession of the disputed premises was restored to the daughter of the Complainant after evicting the original accused under Section 456 of the Cr.P.C. That order of restoration of property has not been implemented yet. This was in view of the Criminal Appeal No.466/1995 filed by the accused. That Appeal has come to be dismissed, which order is challenged in this Revision. Consequently, the order of the learned J.M.F.C is confirmed. That includes the order of restoration of possession. That follows as a matter of corollary since use of force is seen. The possession must, therefore, be directed to be restored as per that order passed since 11th September 1995. 11.The Advocate on behalf of the legal heirs of the 8 tenant (accused) submits that there was no criminal force to justify that order. He drew my attention to Section 456 of the Cr.P.C. The Section runs thus:- 456. Power to restore possession of immovable property  (1) When 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 intimidation, any person has been dispossessed of any immovable property, the Court may, if it thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary, any other person who may be in possession of the property: Provided that no such order shall be made by the Court more than one month after the date of the conviction. (2) Whether the Court trying the offence has not made an order under sub-section (1), the Court of appeal, confirmation or revision may, if it thinks fit, make such order while disposing of the appeal, reference or revision, as the case may be. (3) Where an order has been made under sub- section (1), the provisions of section 454 shall apply in relation thereto as they apply in relation to an order under Section 453. (4) No order made under this Section shall prejudice any right or interest to or in such immovable property which any person may be able to establish in a civil suit. 9 12.It is seen that in this case criminal force has been used, if such force was not used, the original Complainant as well as his daughter and son-in-law, who went to the premises on 25th April 1982 could have entered into the premises. He was pushed and not allowed to enter. There was a quarrel between the parties. Consequently because of such show of force he came to be dispossessed of the immovable property rightfully secured by him in Execution of the Civil Decree. Hence, the restoration of the possession to the original Complainant after evicting by force by the original accused was the order correctly passed by the learned J.M.F.C, which has been correctly upheld by the learned Sessions Judge, Pune. That order is required to be upheld. There is no error on the part of either of the Courts below. There is no material irregularity in the orders. The heirs of the original accused have stepped into the shoes of the accused and must, therefore, be bound by the order passed against their predecessor-in-title, the original accused, through whom they claim possession of the suit premises, once it is seen that the original possession was illegally and wrongfully obtained by the original accused by an act of criminal trespass of which he has been convicted. Hence, the following order: 10 O R D E R 1.The Criminal Revision Application No.75/2000 is dismissed. 2.The property being House No.1700, R.S. Kedari Road, Poona-1 shall be forthwith restored to the present complainants after evicting the present accused (being the heirs and legal representatives of the original complainant and the original accused) by the relevant Senior Inspector of the relevant Police Station being Chaar Baudi Police Station. (SMT. ROSHAN DALVI, J.)