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Criminal Revision No. 822 of 1962, decided on 21st May 1963.
S. 517-Provisions applicable to all sorts of properties both "movable" and "immov able"-Analogy based on reference to word "property" in S. 405, Penal Code (XLV of 1860) held, inapt.
Tum Hla v. Shwe Ngo Vol. IV, Lower Burma Rulings at p. 209 rel.
Ready v. Ramayya (1929) 591 C 414 not fol.
Jugdown Sinha v. Queen Empress (1896) 23 Cal. 372 considered.
Ahmad Ali v. Keenoo Khan (1909) 36 1 L R Cal. 44 and Bisweswar Singh and others v. Bhola Nath Pathuk A I R 1914 Cal. 629 ref.
Ss. 517 & 522 S. 522, being special provision, to have precedence over general provision contained in S. 517-Maxim : generalia specialibus non derogant.
Ss. 517 & 522 ---Two sections meant for two entirely different situations-Under S. 517 only person claiming to be entitled to possession of property can ask for its delivery to him while under S. 522 person asking for restoration of property need not claim to be entitled to its possession-Court acting under S. 522 need not enter into question of right of possession of person praying for restoration of property
A. A. K. Lodhi for Petitioner.
Muhammad Siddiq and Rao Muhammad Yousaf for Respondents.
Qazi Ahmad Khan for Advocate-General for the State.
Date of hearing : 13th February 1963.
This is a revision petition directed against the order dated the 8th of August 1962 of the learned Sessions Judge, Lyallpur, whereby he set aside an order of Mr. Muhammad Nazeer, Magistrate 1st Class, Lyallpur, dated the 26th of May 1962.
2. The facts of the case are that Muhammad Bakhsh peti tioner was tried under section 447/457, P. P. C., on a complaint lodged by Ashiq Hussain respondent. The investigating officer applied to the Court for permission to break open the lock of the premises in dispute which was alleged to have been put on it by the said Muhammad Bakhsh with a view to making an inventory of the articles in the shop. An application was later made on the 2nd of June 1960 by Ashiq Hussain complainant to the A. D. M., Lyallpur, praying that the possession of the portion of the shop previously in the occupation of Muhammad Bakhsh accused be given to Ashiq Hussain. The A. D. M., directed that as an interim measure possession be handed over as prayed.
3. The case under section 447/457, P. P. C., against Muhammad Bakhsh was decided in his favour and he was acquitted by an order dated the 27th of November 1961. It may also be mentioned that no charge was framed under section 447, P. P. C., by the learned Magistrate at all, because a prima facie case under that section was not made out against Muhammad Bakhsh petitioner.
4. Having been acquitted, Muhammad Bakhsh presented an application to the trial Court for restoration of possession of the property in dispute. The learned Magistrate ordered that Muhammad Bakhsh be put in possession of the portion of the shop from which he was evicted under the orders of Mr. S. A. Majid, A. D. M., Lyallpur. Although he has not specifically said so, a perusal of the order passed by him shows that he acted under sections 517 and 522 of the Criminal Procedure Code.
5. The learned Sessions Judge, Lyallpur, sitting in appeal vacated the order passed by the learned Magistrate. The learned Sessions Judge proceeded on the assumption that the order of the Magistrate was not passed under section 522 of the Criminal Procedure Code and had actually been passed under section 517 of that Statute. The ratio decidendi of the order of the learned Sessions Judge is contained in the following sentence :-
" . . it is equally plain that section 517, Cr. P. C., does not apply to immovable property which is the property involved in the present case."
In this connection he referred to a ruling, Ready v. Ramayya ((1929) 591 C 414). The learned Sessions Judge, however, did not choose either to discuss the judicial decision that he quoted or to give his own reasons for having come to the conclusion that section 517 does not apply to immovable property.
6. The question of law which falls to be answered in this case is whether the word "property" used in section 517 of the Code of Criminal Procedure has been used in the generic sense or is it confined only to the immovable species. This self-same word has been noticed by the Calcutta and Madras High Courts as well as the Lower Burma Court, and divergent views have been expressed. The two former Courts have spelt it to mean only movable property, while the latter has not been able to find anything in the word, or the context in which it has been used so as to put this restricted interpretation upon it.
7. Ahmad Ali v. Keenoo Khan ((1909) 36 1 L R Cal. 44), is the first of the two Calcutta cases which touch this point. The facts of that case were that on the 9th of September 1907, Keenoo Khan and others went to Ahmad Ali's village and entered his tiled bungalow, beat him and forcibly ousted him there-from. A charge under section 147 of the Penal Code was framed and ultimately three of the accused were convicted under section 323 of the Code. The trial Magis trate also found that the complainant was in possession of the house at the relevant time and was evicted by the accused.
8. On an application made by Keenoo Khan for restoration of possession of the house and the articles in it the learned Magistrate observed that as it was not decided that force was used to drive out the complainant from the bungalow, he bad no power to order the complainant to be put in possession of the property. He, therefore, ordered the property to be returned to the party, in whose possession it was found. Ahmad Ali complainant moved the High Court. After briefly narrating the facts their Lordships were pleased to observe as follows :-
"In those circumstances it was the duty of the Magistrate to pass orders under sections 522 and 517 of the Criminal Procedure Code directing restoration to the petitioner of the bungalow and its contents, from which it was found he had been forcibly dispossessed.
These observations have been relied upon in Bisweswer Singh and others v. Bhola Nath Pathuk (A I R 1914 Cal. 629) in the following words :-
"In the case of Sheikh Ahmad Ali v. Keenjo Khan where a person had been dispossessed of a bungalow and its contents and it was attended with force, Brett and Ryves, JJ., held that. in respect of them orders ought to have been passed under sections 522 and 517, Criminal Procedure Code. Although the point was not discussed, we clearly see that the learned Judges in that case did not think that an order under section 517 could have been made in respect of the bungalow."
I respectfully agree with their Lordships in their brief that the learned Judges in that case did not think that an order under section 517 could have been made in respect of the bungalow, but this would be no ground for concluding that they were holding section 517 inapplicable to immovable property as such. In fact, in Keenoo Khan's case the learned Judges were not at all faced with the question as to whether section 517 or section 522 of the Criminal Procedure Code was attracted to the particular facts of the case that they were deciding. Their Lordships gave no reasons, as eve have already seen, for holding that orders under sections 517 and 522 should have been passed and, in any case, they were not called upon to say whether one section or the; other was applicable to the entire property or to a part of' it The learned Magistrate in Keenoo Khan's case had held :-
"It was not decided that force was used to drive out the complainant from the bungalow . . . . Unless there is x specific charge that force was used to drive the complainant from the bungalow, I have no power to order the complainant to be put in possession of the property. I order the property to be returned to the party, in whose possession they were found."
The question, therefore, which their Lordships were called upon to decide in that case was whether the Magistrate was correct in holding that he had no power to order the complainant to be put in possession of the property, as, according to him, the pre requisites of exercising jurisdiction under section 522 of the Criminal Procedure Code, i.e., use of force in dispossesssing the complain ant, were not present. And in fact their Lordships in the second paragraph of their judgment, on which the part of the judgment dealing with sections 522 and 517 has actually proceeded did observe as follows :-
"It is clear from the facts stated in the petition that the petitioner's case, in which he charged the opposite-party with having forcibly dispossessed him of the bungalow and its contents, was found to be true, and the opposite-party was convicted under section 323 of the Indian Penal Code of having forcibly dispossessed him of both.
Since their Lordships found as a fact that the petitioner in that case had been dispossessed forcibly of the bungalow in dispute, there was no alternative for them but to apply section 522 of the Code of Criminal Procedure to that case, because it is that section which specifically deals with cases in which dispossession from immovable property has been the result of the use of force. There can be no dispute about this proposition since section 522 being a special provision had to take precedence over the general provisions contained in section 517 of the Code in accordance' with the time honoured maxim general specialibus non derogant. It is, therefore, quite clear that Ahmad Ali v. Keenoo Khan cannot be used as the basis of holding that section 517 is applicable only to movable property and section 522 to immovable property.
9. The learned Judges deciding Bisweswer Singh case, however, chose to give their own reasons also for holding as they did. In the second column, at page 629 they proceeded to observe as follows :-
"We have no hesitation, after comparing section 517 with section 522, in saying that the former section has no application to immovable property. If that section had any application to immovable property, the provisions of section 522 would become superfluous ; because if the word property' comprehends both movable and immovable property, section 517 then becomes much more comprehensive in its meaning than section 522 , . .
"In this connexion as to the interpretation of the word property' the learned vakil on behalf of the petitioners has drawn our attention to the case of Jugdown Sinha v. Queen Empress (1896) 23 Cal. 372, where the word property' as used in section 405, I. P. C., has been explained to mean movable property only. Similarly in section 517, from the language employed we do not understand the word property' to mean immovable property'."
The first reason given by their Lordships proceeds on the assump tion that section 522 would become superfluous if section 517 is held to be applicable to all sorts of property.
10. Subsection (1) of section 517 provides generally "for the disposal by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property "Subsection (2) deals with the implementing of such an order if it is passed by a High Court or a Court of Sessions. Subsection (3) provides for the non-implementation of it for one month from the date of order or till the appeal is disposed of if one has been filed. Subsection (4) provides for the execution of a bond by the person who claims to be entitled to the posses sion thereof for restoring it if an appeal has been filed. A reading of these various clauses of this section shows that it deals with cases where a person claims to be "entitled to possession." On the other hand, we find from section 522 that the property is, if other circumstances detailed in subsection (1) of section 522 are present, to be restored to a person who has been dispossessed of it. There is no provision in this section permitting the Court to give possession of the property to a person who "claims to be entitled to it." In other words, it is not necessary for the Court while acting under section 522 to enter into the question of the right of possession of the person praying for restoration of property, which it has to do under section 517. The reasons seem to be obvious. The framers of the Code have thought it fit that if a person has been dispossessed of immovable property by force, then, notwithstanding the title of any person to it, he should be put in possession if the person guilty of such forcible dispossession has been convicted by the Court for such an offence. They have, therefore, advisedly provided for in subsection (2) of that section that such an order restoring possession shall not prejudice "any right or interest to or in such immovable property which any person may be able to establish in a civil suit." We find no such provision in section 517. The conclusion would, therefore, be that while in a case under section 517 only a person who claims to be entitled to possession of property can ask for its delivery to him, in a case under section 522 it is not necessary that the person asking for restoration should claim to be entitled to possession. The mere fact that there has been forcible dis possession of immovable property, and the person who dispos sessed him has been convicted of that offence, entitles him to the restoration of possession.
11. With all respect to the learned Judges who decided Bisweswar Singh's case, in my humble opinion it would not be correct to say that "if that section had any application to immov able property, the provisions of section 522 would become superfluous ; because if the word property' comprehends both movable and immovable property, section 517 then becomes much more comprehensive in its meaning than section 522." The two sections are, in fact, meant for two entirely different situations which have been analysed above.
12. The second reason given by the learned Judges was based upon a reliance on the case Jugdown Sinha v. Queen Empress ((1896) 23 Cal, 372) which related to section 405 of the Penal Code. That case dealt with a situation where the appellant had been convicted under section 408 of the Penal Code for having committed breach of trust in respect of certain plots of agricultural land over which he had been entrusted with dominion in his capacity as a Jemadar of an Indigo Factory. The contention raised before their Lord ships was that criminal breach of trust cannot be committed in respect of immovable property. The Judges decided that case on facts as would be clear from the following part of the judgment :-
"Be that as it may, we think that upon the evidence the conclusion cannot be sustained. Both the assessors found the appellant not guilty, and, as they have pointed out, the evidence in the case is extremely unsatisfactory. There are not only contradictions in the evidence, but the witnesses are, upon their own showing, accomplices with the accused, and their evidence is entirely uncorroborated. It appears, moreover, that the factory people had a grudge against the accused who appears to have left their service and entered the service of a neighbour ing factory. Under all these circumstances it would not be safe to convict the accused."
This was, therefore, the reason for acquittal. There is, however, no doubt that their Lordships did make the following observa tion with regard to law in the same judgment :-
"We are ourselves inclined to the opinion that the property referred to in section 405 of the Penal Code must, as in section 403, be immovable property, . . ."
Though section 405 only uses the word "property" and not "immovable property", one of the necessary ingredients of the offence is dishonest misappropriation. The part of the Code to which section 405 belongs is headed: "Of Criminal Misappro priation of Property", and the first section in that part is section 403 which specifically says that it deals with movable property. Although the sections following it do not use the word "movable" or "immovable", the analogy can, therefore, not be applied to sections 517 and 522, since neither of them specifically mentions movable property. I would, therefore, with all respect, maintain that the decision in the case Jugdown Sinha v. Queen Empress is not relevant for deciding whether section 517 is applicable to immovable property also.
13. Coming to the Madras case, we find that in A. B. Adepu Reddi v. R. Ramayya (A I R 1920 Mad. 652 (1)) it was held that "section 517 must be regarded as applying to movable property only." The learned Judge who decided that case has not discussed the law on the point himself, but has only referred to the two Calcutta cases that have been discussed above in this judgment. I, therefore, need not discuss it.
14. I am of the view that section 517 is applicable to all sorts of properties, and I am fortified in that a decision in the case Tum Hla v. Shwe Ngo reported in conclusion by a Volume IV, Lower Burma Rulings at p. 209, wherein it has been held that the word "property" occurring in section 517 does not relate only to movable property, but includes immovable property also.
15. In this view of the matter, I hold that the learned Sessions Judge, Lyallpur, was wrong in concluding that section 517, Cr. P. C., is applicable only to movable property. I would accordingly accept the revision petition and direct that the order of the learned Magistrate dated the 26th of May 1962 shall now be implemented.
K. B. A./A. H. Petition accepted.
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