ANANTARAM PATNAIK Vs. STATE OF ORISSA
LAWS(ORI)-1988-8-51
HIGH COURT OF ORISSA
Decided on August 16,1988

Anantaram Patnaik Appellant
VERSUS
STATE OF ORISSA Respondents


Referred Judgements :-

JAGGABUNDHU MUKHERJEE AND ORS. V. RAM CHANDAR BYSACK [REFERRED TO]
LENGU ALIAS SATCHIDANANDA MISRA AND ANR. V. STATE [REFERRED TO]
SRI RADHA KRISHNA CHANDERJI V. RAM BAHADU AND ORS. [REFERRED TO]
PUNJAB NATIONAL BANK LIMITED ALL INDIA PUNJAB NATIONAL BANK EMPLOYEES FEDERATION VS. ALL INDIA PUNJAB NATIONAL BANK EMPLOYEES FEDERATION:PUNJAB NATIONAL BANK LIMITED [REFERRED TO]
RASH BEHARI CHATTERJEE VS. FAGU SHAW [REFERRED TO]
NANI GOPAL DEB VS. BHIMA CHARAN RAKSHIT [REFERRED TO]
JAYAGOPAL MUNDRA VS. GULAB CHAND AGARWALLA [REFERRED TO]


JUDGEMENT

V. Gopalaswamy, J. - (1.)THIS revision is preferred against the judgment of the learned Sessions Judge. Puri. dated 2 -8 -1983. in Criminal Appeal No. 52 of 1983, confirming the order of the Chief Judicial Magistrate. Puri in G. R. Case No. 248 of 1979, convicting the Petitioner under Section 448. I.P.C. and sentencing thereunder to pay a tine of Rs. 750/ - in default to undergo simple imprisonment for three months, and directing that from out of the fine amount, if realised, a sum of Rs. 500/ - should be paid to the informant (p.w. 2) as compensation and further directing the delivery of the vacant house to the inform ant under Section 456, Code of Criminal Procedure
(2.)FROM the material placed on record and the recitals in Ext. A. the prosecution has conclusively established that, in execution of the decree passed by the House -Rent Controller in H. R. C. Case No. 19 of 1978, there was symbolic delivery of possession of the house in question to the decree -bolder (informant) on 8 -10 -1978 in the presence of the accused judgment -debtor. The admitted position is that in spite of such delivery of possession of the house to the decree -holder on 8 -10 -1978, the accused -judgment -debtor continued to be in possession of the house in question. So the point for decision in' this revision is whether the Petitioner has rendered himself liable under Section 448, I.P.C. by continuing to remain in possession of the house even after it was symbolically delivered to the informant and in spite of his demand to vacate it.
The following observations of this Court in the Full Bench decision of Jayagopal Mundra v. Gulab Chandra Agarwalla and Ors. : 40 (1974) C.L.T. 213 (F.B.). are considered material and relevant and hence quoted below:' "...So far as delivery of possession against the judgment -debtor or any person in occupation on his behalf is concerned, there is no distinction between the two modes of delivery of possession. Law is well settled that as against the judgment -debtor symbolical delivery of possession amounts to delivery of possession. While giving the above Full Bench decisions this Court relied on a Full Bench decision of the five Judges of the Calcutta High Court in Jaggabundhu Mukherjee and Ors. v. Ram Chandar Bysack, I.L.R. (1880)5 Cat. 584 (F;B.). which was referred to and approved by the privy Council in Sri Radha Krishna Chanderji v. Ram Bahadu and Ors., A.I.R. 1917 P. C. 197 In the present case admittedly the informant (decree -holder) obtained symbolical delivery of possession of the house in question in the presence of the Petitioner (judgment -debtor) and so as against the Petitioner that would operate as actual delivery of possession to him.

(3.)FOR convenience of ready reference the provisions of Section 441. I.P.C. are quoted 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 of 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

Section 441, I.P.C. has three essentials:

(1) Entry into or upon property in the possession of another.

(2) If such entry is lawful then unlawfully remaining upon such property.

(3) Such entry or unlawful remaining must be with intent (i) to commit an offence; or (ii) to intimidate, insult or annoy the person in possession of the property.



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