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Ram Krishna Singh And Others Accused v. King-Emperor Opposite Party.
Factual and Procedural Background
This opinion concerns five petitioners convicted in the criminal courts in respect of events arising out of possession and an alleged forcible ouster and burning of a house. The petitioners were originally convicted of rioting under Section 147 I.P.C.; one petitioner (Shibram) was convicted by the Assistant Sessions Judge under Section 436 I.P.C (mischief by fire). On appeal the lower appellate Court set aside the Assistant Sessions Judge's conviction of Shibram under Section 436 and convicted him under that section read with Section 149. Ultimately, the lower appellate Court convicted all the petitioners under Sections 436-149 and imposed sentences: one year's rigorous imprisonment under Sections 436-149 (after reduction), six months' rigorous imprisonment under Section 147 I.P.C, and, in respect of Shibdhyan and Babua, three months' rigorous imprisonment under Section 323 I.P.C — all sentences to run concurrently.
The factual background as found by the courts: Ram Krishna Singh obtained a mortgage decree against the complainant Adya on 7 July 1915; in execution 8 annas share in Akbarpur Tauzi No. 796 was sold. Ram Krishna Singh and his brothers purchased that share on 28 July 1918; the sale was confirmed on 26 August 1918. Delivery of possession to Ram Krishna Singh was effected on 15 March 1919 under Order 21, Rule 95 of the Civil Procedure Code (CPC). There was further litigation about the sale, which was ultimately upheld by the High Court (referred to in the opinion as Exhibit H).
Administrative police action followed: on 27 April 1920 a Sub-Inspector submitted a report recommending action under Section 144 against Adya Singh and his family on the ground that the disputed property was in the possession of Ram Krishna and his brothers. Proceedings under Section 145 were instituted on 7 June 1920. On 6 November 1920 the Magistrate declared that Adya Singh was in possession; that order was set aside by this Court on 12 January 1921 on the ground that the Magistrate could not disregard the Civil Court writ of delivery of possession in favour of Ram Krishna Singh. The key incident giving rise to the criminal charges occurred shortly thereafter.
The prosecution's account of the incident is that Ram Krishna Singh came with a mob of about 200 men armed with lathis and ordered Adya Singh to leave the house; when Adya refused, the mob was ordered to demolish, loot, burn and remove occupants. Several assaults occurred (Babua struck Adya; Shibdhyan struck Khela; Nasib struck Lalbati and snatched a box) and loot continued. Finally, Shibram Singh is alleged to have set fire to a room which was wholly destroyed.
Legal Issues Presented
- Whether the convictions under Section 147 (rioting) and Sections 436-149 (mischief by fire with group liability) could be sustained where the Civil Court had earlier executed a writ of delivery of possession in favour of Ram Krishna Singh.
- Whether a criminal court (or a Magistrate in proceedings under Section 145 CrPC) is competent to re-open or dispute a Civil Court's writ of delivery of possession (dakhaldehani), or whether after proof of such delivery the criminal court must maintain the civil court's possession order.
- Whether acts causing destruction or burning of the property could constitute mischief (Section 425/436) when the property in question belonged to the accused (and not to the complainant).
- Whether convictions under Section 323 (causing hurt) against Babua and Shibdhyan could stand where the record did not disclose a definitive finding as to whether the assaults were necessary to eject a trespasser or were in excess of the right of private defence.
Arguments of the Parties
Petitioners' (Accused) Arguments
- The house in question was not the house which had been the subject-matter of dispute under Section 145 or of the Civil Court's delivery of possession to Ram Krishna Singh on 15 March 1919.
- Adya Singh was in possession of the house and was never lawfully dispossessed; therefore the accused had no right to dispossess him by force.
- Because the house was in the possession of Adya Singh, any damage done by the accused constituted mischief as defined by Section 425 I.P.C and therefore they were liable under Section 436 I.P.C.
- Implicitly, the accused argued that any forcible acts could not be justified by a prior civil writ in their favour unless the criminal court expressly recognized that possession.
Prosecution (as represented by the Assistant Government Advocate) Arguments
- The Assistant Government Advocate referred to Explanation 2 to Section 425 I.P.C. to suggest that mischief may arise from an act which affects property belonging to the person committing the act or to that person and others jointly, i.e., that mischief could be made out despite the accused having an interest in the property.
- It was contended that, rightly or wrongly, the complainant Adya Singh occupied the house at the relevant moment and thus the accused had no right to “take the law into their own hands” — the prosecution emphasized that the accused should not use force beyond what is permitted to maintain possession.
- The prosecution argued that the convictions for causing hurt under Section 323 against Babua and Shibdhyan should stand.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Empress v. Rajcoomar Singh | Illustrates that where a Civil Court has declared a person's right in the property, the destruction (or removal) of structures by that person or their agents may not constitute 'mischief' because there is no wrongful loss to another. | The Court analogized this authority to the present facts: in Empress v. Rajcoomar Singh Jackson, J. held that pulling down an edifice by a person whose right was declared by a Civil Court did not cause wrongful loss. The court treated the present case (burning rather than pulling down) as on all fours with that decision and used it to support acquittal on mischief charges. |
| Parmeshwar Singh v. Emperor | Shows that no mischief can be committed by an act which causes damage to a property if the property actually belongs to the accused. | The Court cited this case to reinforce the proposition that where the property belongs to the accused, acts causing damage do not constitute mischief under Section 425/436 because the essential element of intending wrongful loss to another is absent. |
| Emperor v. Gulsha | Affirms that a rightful owner is entitled to physically turn out a trespasser, but must not use more force than is necessary in defending possession. | The Court relied on this authority to emphasize the limitation on the right of private defence: even where the accused were rightful owners, they could not employ disproportionate force. The case supported the view that the accused were not criminally liable provided they did not exceed reasonable force. |
Court's Reasoning and Analysis
The Court's analysis proceeded in several linked steps, applying civil-possession principles to the criminal charges:
- Respect for the Civil Court's writ: The Court held that after execution of a Civil Court writ of delivery of possession (dakhaldehani) the Criminal Court is bound to maintain the person placed in possession by the Civil Court (here Ram Krishna Singh) in that possession. The Criminal Court is not competent to re-open or dispute the Civil Court's delivery of possession.
- Limited scope of Section 145 inquiry: While Section 145 CrPC authorizes inquiry into disputed possession, that inquiry cannot be used to disregard or re-open a Civil Court's order of delivery of possession. The Magistrate may inquire into the actual service of the civil writ, but once dakhaldehani is proved to the Magistrate's satisfaction it is his duty to maintain the possession of the person so delivered (by order under Section 145 or by invoking preventive provisions such as Sections 144 or 107).
- Consequence for the rioting charge (Section 147): Because the Civil Court had placed Ram Krishna in possession and the Criminal Court had to maintain that possession, Ram Krishna asserting his title and taking possession by ousting Adya (who, following civil process, was a trespasser) could not be treated as committing a criminal act of rioting. Hence the conviction under Section 147 could not stand.
- Analysis of mischief (Sections 425/436): The Court emphasized that the principal ingredient of mischief is an intention to cause wrongful loss or damage to another. If the property belonged to the accused, there could be no wrongful loss to the complainant. The Court examined Explanation 2 to Section 425 and illustrations (g) and (h) and concluded these show the mischief must be to property belonging to another even if the act affects property of the actor; thus where the property belongs to the accused, there is no mischief.
- Use of precedents: The Court relied on Empress v. Rajcoomar Singh and Parmeshwar Singh v. Emperor as direct illustrations that a person whose right is declared by a Civil Court who destroys or removes structures does not commit mischief. The Court drew a direct analogy between those authorities and the present facts (noting that in the present case the house was burnt rather than pulled down) to hold there was no mischief.
- Private defence and force used: The Court acknowledged the prosecution contention that a person should not "take the law into his own hands" and that force must be proportionate. The Court cited Emperor v. Gulsha to show a rightful owner may eject a trespasser but must not use excessive force. On the facts, the Court concluded the accused had not exceeded the right of private defence of property.
- On the Section 323 convictions: The Court noted the learned Sessions Judge did not make a definite finding as to whether the assaults by Babua and Shibdhyan were necessary to eject the trespasser or were excessive. Because the record lacked a definitive finding on whether the force was within the right of private defence, the Court was not prepared to sustain convictions under Section 323.
Holding and Implications
Holding: The Court set aside the convictions and sentences imposed upon the accused. More specifically, the Court ordered that the convictions and sentences passed upon the accused are set aside and the petitioners were to be acquitted; Coutts, J. agreed and the rule was made absolute.
Implications:
- The direct effect on the parties is that the criminal convictions (Sections 147, 436-149 and the contested Section 323 convictions) and the sentences imposed were quashed and the petitioners were acquitted.
- The Court's decision rests on recognition that a criminal court must respect and maintain a Civil Court's executed delivery of possession (dakhaldehani) and that mischief requires wrongful loss to another — thus where the property belongs to the accused, mischief is not made out. The opinion applies established authorities to the facts before it.
- This opinion does not purport in its text to establish a new legal precedent beyond applying and reconciling existing authorities to the facts; the immediate consequence is reversal of conviction and acquittal of the petitioners.
Jwala Prasad, J.:— The petitioners 5 in number have been convicted of rioting under Section 147, I.P.C Petitioner Shibram was convicted by the Assistant Sessions Judge under Section 436, I.P.C (mischief by fire) and the other petitioners were convicted of mischief under Sections 436-149, I.P.C The lower appellate Court has set aside the conviction of Shibram under Section 436, I.P.C and has convicted him under that section read with Section 149.
2. Thus all the petitioners have been convicted under Sections 436-149 by the lower appellate Court. Petitioners Shibdhyan and Babua have been convicted also under Section 323, I.P.C All the petitioners, after the reduction of the sentences, have been sentenced to one year's rigorous imprisonment under Sections 436-149. They have further been sentenced to six months' rigorous imprisonment under Section 147, I.P.C and Shibdhyan and Babua to three months' rigorous imprisonment under Section 323, I.P.C The sentences are to run concurrently. The facts briefly stated are as follows. Ram Krishna Singh obtained a mortgage-decree against Adya, the complainant, on the 7th July, 1915, and in execution of that decree he sold 8 annas share in Akbarpur Tauzi No. 796. Ram Krishna Singh and his brothers purchased the same ton the 28th July, 1918. The sale was confirmed on the 26th August, 1918. Ram Krishna Singh obtained delivery of possession of the property on the 15th March, 1919. This delivery of possession was under Order 21, Rule 95 of the CPC.
3. There was some litigation between the parties with respect to the sale, but the sale was finally upheld by the High Court (vide judgment Exhihit H). On the 27th April, 1920, the Sub-Inspector of Police submitted a report for an action under Section 144 to be taken against Adya Singh and his family on the ground that the disputed property was in possession of the petitioners, Ram Krishna. Singh and his brothers.
4. Subsequently proceedings under Section 145 were instituted on the 7th June, 1920. On the 6th November, 1920, the Magistrate declared the possession of Adya Singh holding that in spite of the delivery of possession, he continued to be in actual possession of the property in question. This order of the Magistrate was set aside by this Court on the 12th January, 1921, with the observation that it was not open to the Magistrate to dispute or disregard the Civil Court writ of deli, very of possession in favour of Ram Krishna Singh. This occurrence took place 4 days after the aforesaid order of the High Court on the 16th January, 1921.
5. The case of the prosecution is that Ram Krishna Singh came to the house in question with a mob of about 200 armed with lathis and ordered Adya Singh to leave the house in question. Adya Singh refused to do so. Thereupon Ram Krishna Singh ordered the mob to demolish the house, loot its contents, burn it down and remove the occupants. Adya Singh remonstrated and thereupon he was hit by Babua Singh with a lathi. Khela Singh, a grandson of Adya Singh, Was also assaulted by Shibdhyan Singh with a lathis Khela Singh retaliated and struck Ram Krishna Singh with a lathi. Subsequently the ladies of the house came out and one of them Lalbati was struck on the head by Nasib Singh with a lathi and a box which she was carrying was snatched from her by Nasib Singh. The mob continued the loot and eventually Shibram Singh set fire to a room on the northern side of the house. This room was wholly destroyed by fire.
6. It was contended by the defence that the house in question was not the house which was the subject-matter of dispute under Section 145 or with respect to the Civil Court delivery of possession to Ram Krishna Singh on the 15th March, 1919. It was further asserted that Adya Singh was in possession of the house and was never dispossessed; and, therefore, the accused had no right to try to dispossess him by means of force; and that inasmuch as the house was in possession of Adya Singh and he with his family was residing therein, the accused did mischief as defined by Section 425, I.P.C and hence were liable to conviction under Section 436.
7. The Court below has come to a definite finding that the house in question was the very house with respect to which the Civil Court had executed the writ of delivery of possession in 1919 and that it was the property which was the subject of dispute under Section 145 of the Cr PC. The Court has further held that the possession of Adya Singh and his family was wrongful and that of a trespasser inasmuch as the petitioner Ram Krishna Singh was put in possession of it in pursuance of a Civil Court dakhaldehani.
8. The Court very rightly repelled the suggestion that inasmuch as symbolical possession was only delivered under Order 21, Rule 95. Ram Krishna Singh should not be deemed to be in actual possession of the house in question. The Court, however, has held that in spite of the Civil Court dakhaldehani, Adya Singh continued to be in actual possession of the house in question and, therefore, the accused were not justified in attacking him with a large mob and assaulting his party and in turning them out and burning the house. According to the finding of the Court below the house in question now belongs to Ram Krishna Singh by virtue of his purchase at a Civil Court auction sale in 1918. He was also given possession by the Civil Court; therefore Adya Singh was occupying the house if at all as a mere trespasser.
9. It was rightly pointed out by this Court that after the execution of the writ of delivery of possession, the Criminal Court was bound to maintain Ram Krishna Singh in possession of the house in question. In other words the Criminal Court was bound to maintain Ram Krishna Singh in possession of the house in question. In other words, the Criminal Court was not competent to re-open the question of possession and to investigate it under Section 145 of the Cr PC. No doubt under Section 145, a disputed possession may be enquired into and the party found in possession by the Magistrate may be maintained by an order under Clause (4) of that section.
10. Therefore, in order to find out as to whether the possession was disputed or not, the Magistrate could investigate as to the actual service of the writ of delivery of possession; but once a dakhaldehani was proved to have been effected to the satisfaction of the Magistrate, it was then his bounden duty to maintain the possession of Ram Krishna Singh either by an order under Section 145 or by having recourse to actions under Section 144 or 107 of the Cr PC.
11. In this case it appears that the dakhaldehani was proved and consequently the Criminal Court whether acting under the preventive sections of the Code of Criminal Procedure or enquiring into an offence under the Indian Penal Code has to maintain the possession of Ram Krishna Singh; therefore, Ram Krishna Singh was not committing any criminal act in going to assert his title and to take possession of the house in question by ousting Adya Singh who was remaining in the house only as a trespasser. Therefore, the accused were not members of an unlawful assembly and they did not commit any riot. So the conviction under Section 147, I.P.C must fail.
12. As to the conviction under Section 436 of causing mischief by setting fire to the house, it is obvious that there could not possibly be any wrongful loss or damage to Adya Singh or any person inasmuch as the house did actually belong to Ram Krishna Singh, the accused. The principal ingredient of an offence under Section 425 is that there must be an intention to cause wrongful loss or damage to the public or to any person.
13. Therefore, if the property in question did not belong to Adya Singh and belonged to the accused no offence of mischief was at all committed. Explanation 2 to Section 425, I.P.C has been referred to by the learned Assistant Government Advocate in order to show that mischief may be by an act which affects any property belonging to the person committing the act or to that person and others jointly.
14. Now Illustrations (g) or (h) clearly show the cases to which that explanation is applicable. The mischief must be done to the property belonging to another person, but the act whereby that mischief is done may have reference to the property belonging to the person committing the mischief.
15. The case of Empress v. Rajcoomar Singh(1), is an obvious illustration of a person having his right declared by a Civil Court destroying the property without being guilty of any mischief. In that case B obtained a decree from a civil Court against A declaring his right in the property, whereupon the servants of B went on the land and pulled down the edifice which was erected thereon by A subsequent to an order under Section 530 of the Cr PC (145 of the present Code), Jackson, J., held that as there had been no causing of wrongful loss the accused had not been guilty of mischief.
16. The following observation appears to me to be pertirent to the question in issue in the present case. His Lordship (Mr. Justice Jackson) observed: “Now it is clear from the decision of the Civil Court, which was then in force, that Shama Charan Lahiri was not at that time legally entitled to have those bamboos put together in that place in the form of a nawbutkhana, and consequently there was no causing of wrongful loss in the act done by the accused persons.”
17. Instead of pulling down the house, here the accused persons burnt it down; otherwise the case appears to me to be on all fours with the present one. If there was no mischief in pulling down the edifice there was no mischief committed in burning it. I would quote the case of Parmeshwar Singh v. Emperor(2) in order to show that no mischief can be committed by any act which causes damage to a property if the property actually belongs to the accused.
18. The learned Assistant Government Advocate then contended that rightly or wrongly, the complainant, Adya Singh, occupied the house in question at the moment, and, therefore, the accused had no right, what the learned Assistant Government Advocate describes, to take the law into their own hands. That phrase obviously means that the accused persons should not use more force than is necessary in order to maintain their own right or possession.
19. It goes without saying that a rightful owner is entitled to physically turn out a trespasser or one trying to infringe upon his rights. It is also true that a person exercising this right should not use more force than is reasonable to defend his possession from a trespasser.
20. This is the view taken even in the case quoted by the learned Assistant Government Advocate; Emperor v. Gulsha(3). Therefore, the accused persons to my mind are not guilty either under Section 147 or under Sections 436-149.
21. The last contention of the learned Assistant Government Advocate is that the conviction of Babua and Shibdhyan under Section 323, I.P.C for causing hurt to Adya and Khela with lathis should stand.
22. The learned Sessions Judge has not come to any definite finding as to the circumstances under which the aforesaid assaults were committed and whether they were necessary to eject Adya Singh from the house or that they were in excess of the right of private defence of property which Ram Krishna and the other accused had in order to maintain their possession of the house in question. Therefore, I am not prepared to convict the aforesaid petitioners Babua and Shibdhyan under Section 323.
23. The result is that the conviction and the sentences passed upon the accused are set aside.
24. Coutts, J.:— I agree that these petitioners must be acquitted.
25. The learned Sessions Judge has found that the complainant and his party were trespassers and it is clear that the accused have not exceeded right of private defence which they undoubtedly had.
26. Rule made absolute.
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