H. N. Kapoor, J. - (1.) THIS revision is directed against an order dated 26th May, 1975 of the II Additional Sessions Judge, Moradabad allowing Criminal Revision No. 183 of 1974 and ordering that Narendra Gupta be put in possession of the disputed balakhana in accordance with the provisions of section 456 (2), Cr. P. C.
(2.) IN this case a complaint was filed by Narendra Gupta under sections 448, 504 and 506, I. P. C. on the allegation that the complainant was the owner of a shop and balakhana and had obtained a decree for ejectment against Dr. Akhlaq Ali Khan, the revisionist and his compounder Sri Naveel Ahmad and that decree had been executed through a Vakil Commissioner with police help on 19-5-1970 and the complainant had been put in possession of the shop and the balakhana. That very day, he had put some of his luggage and had locked the rooms and he had thus taken full possession of the shop and the balakhana. It was further alleged that the complainant bad gone out and on his return on 22-7-1970, at about 11AM. when he went to his shop, be found that the lock of the shop was intact but the balakhana over the shop was open and Dr. Akhlaq Ali Khan and Naveel Ahmad both were present inside the balakhana. He protested and enquired from them as to how they had taken forcible possession of the balakhana after breaking open the locks. At this the accused persons told him that he had nothing to do with the balakhana and he should go away. They also abused him and threatened to kill him saying that they would not leave the balakhana whatever the result might be. The noise attracted witnesses. The complainant then filed a first information report and lodged the complaint. The criminal case was ultimately decided on 30-9-1974 by Sri V. P. Tripathi, Sub-Divisional Magistrate. Sambhal. holding Dr. Akhlaq Ali Khan guilty under section 488, I. P. C. and sentencing him to pay a fine of Rs. 60.00 and in default of payment of fine to undergo simple imprisonment for a period of one month. The other accused was, however, acquitted. The learned Magistrate further ordered that the complainant might seek remedy for ejectment from the competent court of law. In other words, he did not allow restoration of the property to the complainant under section 522, Cr. P. C. (old) or section 456 (2), Cr. P. C. (new). Dr. Akhlaq Ali Khan had preferred an appeal before the Sessions Judge against his conviction which was dismissed by the II Additional Sessions Judge, Moradabad on 26-5-1975 treating the same to be a revision.
(3.) A petition under section 482, Cr. P. C. (Crl. Misc. No. 4581 of 1975) was filed in this court which was rejected summarily on 1-10-1975. The result is that the conviction of Dr. Akhlaq Ali Khan under section 448, I. P. C. has been finally confirmed. It appears that the present revision came up for hearing before Hon'ble Hari Swarup, J. on 30-7-1975 when the hearing was postponed on the ground that the revision against the order of conviction was proposed to be filed. This revision was then put up for hearing before me after decision in Cr. Misc. No. 4581 of 1975, and after the cases have been released by Hon'ble Hari Swarup, J. who is now sitting permanently at Lucknow Bench. Learned counsel for the applicant has argued that order for restoration of possession under section 522, Cr. P. C. (old) could be carried only 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 criminal intimidation has been dispossessed of any immovable property. His contention is that the allegations in the complaint are that the locks of the balakhana were broken open during the absence of the complainant and as such there could be no question of dispossessing the complainant at that time by use of force, or show of force or criminal intimidation. He has placed reliance on the case of Subhan v. State and another (1971 Allahabad Criminal Cases, 235.) in which Hon'ble Hamid Hussain, J. took the view that property could not be restored under section 522, Cr. P. C. even though conviction under section 488, I. P. C. had become final. The facts of that case were that the accused had entered the premises with the consent of the complainant on the assurance of vacating the same within one week which the accused failed to do. Possession was thus obviously not taken by force nor there was show of force or criminal intimidation at the time when the accused entered the premises.;