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Criminal Revision No. 118 of 1962, decided on 26th June 1962.

S. 522‑No specific finding by Court that offence was committed with force‑Prosecution, however, alleging use of force and Court while convicting accused observing "prosecution story is found proved beyond reasonable doubt"‑Order under S. 522, held, valid.

Nasiruddin Chowdhury for Petitioner.

A. R Khan for the Opposite‑Parties.

The short point raised in this revisional application is whether an order under section 522 of the Code of Criminal Procedure made by a Magistrate is liable to be set aside on the ground that there is no finding that the offence was committed with force although the prosecution case is that the offence was committed with force. It has been contended before me by Mr. Nasiruddin Chowdhury, learned Advocate for the petitioner‑complainant that the trying Magistrate after having convicted the accused persons, made the order dated 19‑6‑61 in the following terms:

"19‑9‑61. Seen the prayer of the complainant pressing for restitution of the possession in the disputed land Nazir is directed to deliver the possession within 21‑9‑61 to the com plainant and report compliance under section 522, Criminal Procedure Code.

(Sd.) G. Akbar"

The learned Assistant Sessions Judge has set aside the order dated 19‑9‑61 on the ground that offence of criminal trespass may be committed without use of force or criminal intimidation and there being no finding that the criminal force was used an order under section 522 cannot be maintained. As a proposition of law this view of the learned Judge is correct. But so far as the facts of this case are concerned, the learned Judge has failed to consider that he has himself found that the entry into the disputed land has been made forcible and this being the finding of the appellate Court which considered the evidence it is a finding of fact by a Court competent to assess the evidence. It is somewhat surprising that the learned Judge having himself applied the necessary finding of fact regarding the criminal force, has set aside the order of the trying Magistrate on the ground that there is no such finding. To quote the words of the learned Sessions Judge with regard to the forcible entry, the following passage from his judgment may be set out:

"Considering the evidence that exists on record I find that the complainant respondent is in possession of the disputed land from before and the accused‑appellants forcibly entered into the land with intent to annoy the complainant‑respondent and to commit the offence of mischief. So I further hold that the accused‑appellants committed the offence under section 447, P. P. C as alleged by the complainant‑respondent."

The words as alleged by the complainant‑respondent' indicate the acceptance of the prosecution case by the learned Judge himself and the complainant has deposed as follows:

"I protested and they jointly proceeded to assault me and then they dispossessed me from the disputed land."

Therefore, when the learned Judge says that the accused has committed the offence under section 447 as alleged by the com plainant‑respondent, the learned Judge at least impliedly accepts the allegations of the complainant to the effect that on his protest they jointly proceeded to assault him and then they dis possessed him from the disputed land. After this finding of fact, he has set aside the order under section 522 on the ground that there is no such finding in the judgment of the trying Magistrate. Inaccuracy in this respect as claimed by the learned Advocate for the petitioners is not without substance. In support of his contention, learned Advocate has drawn my attention to the following finding of the learned Magistrate.

"The prosecution story is found proved beyond reasonable doubt."

2. On this finding the learned Advocate rightly claims that the case of Rada and others v. Autan Singh (A I R 1938 Lah. 839), applies. The observation of the learned Judge in the said case is as follows:‑---

"From the reported facts of the case it does not appear whether there was any criminal force or not. In the present case Mr. Dutta argued that the Naib Tahsildar did not find that there was criminal force but, as pointed out by Sardar Harnam Singh, he found that the complainant's evidence was true. That evidence has already been summarised. The accused were seen by Devi Das breaking the lock and then the complainant reached the spot the four present petitioners were standing there armed with kulharis and sticks. In my judg ment an order under section 522 was competent."

3. Mr. Nasiruddin Chowdhury, therefore, submits that the Magistrate has found that the offence has been committed with force inasmuch as when he says that the prosecution story is found proved, he means that he accepts the prosecution allegations of assault. He submits that in the case cited by him, it has been seen that finding of the complainant's evidence being true by the Naib Tehsildar who tried the case, was found sufficient for the purpose of an Order made under section 522 of the Code of Criminal Procedure.

4. Reliance has also been placed by the learned Advocate for petitioners in the case of Osman Mia v. Amir Mid (28 Cr. L J 191). In that case while considering the contention that there has been no finding by the lower Court in connection with the question of criminal force or show of criminal force it was observed as follows:

.The evidence on record leaves not the slightest doubt to my mind that in this case the element of criminal force used to a person within the definition contained in section 549, Indian Penal Code, was present. Not only the statement of the complainant himself as a witness, but also those Nanhubeg (P. W. 2) and Indersha Daco (P. W. No. 3) clearly show that the element of criminal force to a person was present and in those circumstances, on the findings arrived at by the lower Courts the case certainly, to my mind, comes within the purview of section 522."

I am of opinion that it has been rightly claimed that the deposi tion of P. W. 1 indicate the presence of criminal force to a person. It is also true that the finding of the lower Appellate Court clearly establishes the use of criminal force and so far as the finding of trying Magistrate is concerned, it is to the effect that the pro secution case is proved and the prosecution case is that the offence has been committed with criminal force.

5. For the reasons stated above, the rule is made absolute and the order made by the learned Sessions Judge on 21‑12‑61 cancelling the order of the trying Magistrate is set aside and the order of the learned Magistrate dated 19‑9‑51 is restored.

S. B./K. E. A. Rule made absolute.

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