(Prayer: Petition (disposed of on 23-7-1948) praying that in the circumstances stated in the affidavit filed therewith the High Court will be pleased to issue an order directing that the properties involved in C.C. No. 647 of 1946 on the file of the Court of the Sub Magistrate of Quilandy (Crl. R.C. No. 391 of 1947 on the file of the High Court) now in the unlawful possession of the respondent (accused 1 to 5) as a result of the offences of which they have been convicted be restored to the petitioner herein.)

The petitioners case, which has been accepted by three Courts, is that the respondents, a party of five men, formed themselves into an unlawful assembly, trespassed on the petitioners land and took away a thousand cocoanuts. After being convicted by the Sub Magistrate, they at once appealed to the Sub Divisional Magistrate of Calicut. That appeal was dismissed; and they at once filed Crl. R.C. No. 391 of 1947 in this Court. That petition was dismissed on the 25th February 1948; and within one month of the order of this Court dismissing the revision case this petition has been filed, praying that an order be passed under S. 522 of the Criminal Procedure Code for the restoration of possession of the property to the petitioner.

It is argued by the learned Assistant Public Prosecutor and by the learned Advocate for the accused that the trespass was not attended by criminal force or show of force and that therefore S. 522 is not applicable. There is evidence that the kariasthan of the petitioner was in the field at the time; but even if that were not the case, the accused went in a body to the field for the purpose of making a show of force so that they would be able to trespass and to commit theft of cocoanuts. Whether they actually met with any resistance or not is beside the point. They went there prepared to meet resistance and therefore made a show of force in committing the trespass.

It has been further contended that this Court has no jurisdiction; because the passage in S. 522 giving one month to the petitioner to file an application for restoration of property applies only to the convicting Court. It is difficult, however, to read the section in that way. Literally interpreting S. 522, the Court can pass an order only when convicting such person or at any time within a month from the date of the conviction; so that if in revision the hearing is more than a month after the time of conviction, as is usually the case, the provisional Court would be unable to pass any such order. That surely could not have been the intention of the Legislature. In my opinion, Cl. 3 indicates that the provisional Court can pass such an order at the time of dismissing the application or within a month of that date.

Finally, it has been urged that in view of the delay that has occurred and also of the circumstances of this case, this Court should not exercise its discretion in passing such an order. It is no doubt true that the petitioner could have applied to the Courts below at the time when the accused were convicted and when their appeal was dismissed. It has however been pointed out that the appeal and the revision case were filed so quickly after the orders of the Courts below were passed that the petitioner had little time in which to make such an application.

As to the propriety of such an order. I have no doubt. The object of this section is to prevent any person gaining wrongful possession of land by his own unlawful and forcible acts. The object of the respondents in this case was to retain possession until some future legislation is passed, which they hope will enable them to remain lawfully in possession; in other words, they hope to gain title to the property by their unlawful act of trespassing on this land. This is therefore certainly a fitting case in which such an order as is prayed for should be passed.

The accused are therefore ordered under S. 522 of the Code of Criminal Procedure to restore immediately to the petitioner the possession of the land on which they trespassed.