P L D 1964 Dacca 150 (PLP)

"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.