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Shaukat Ali and ors. Vs. Sadaqat Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1977CriLJ460
AppellantShaukat Ali and ors.
RespondentSadaqat Ali and ors.
Excerpt:
- - the revisional application before us was not clearly pending when the new code came into force. it is well known that revision is a discretionary remedy to which no litigant has a vested right. is that whereas under the old code the magistrate was empowered to make a reference to the civil court if he was unable to decide the question of possession and on receipt of its finding to deliver possession to one party or the other, the new code merely authorises the magistrate in the event of his failure to decide the question of possession to keep the property in dispute under attachment until the parties get their title decided by a competent civil court......before the date on which the new code came into existence, the same will be governed by the old code. appeal is one of the five categories mentioned in the said sub-section. 'revision' as such is not mentioned there. the word 'application' also has no adjective or adjunct added to it. it is not clear how a revision petition is sought to be made synonymous with an appeal in the madhya pradesh case d. singh v. shivnaresh, 1975 cri lj 1710 (m.p.). a revisional application unlike an appeal is not a contnuation of the old proceeding to which it relates. the revisional application before us was not clearly pending when the new code came into force. it is an original application initiating a proceeding. it relates to a pending trial but is neither a trial nor an appeal nor an enquiry or.....
Judgment:
ORDER

P.N. Bakshi, J.

1. This application under Section 482, Cr.P.C. arises out of proceedings under Section 145, Cr.P.C. It appears that on 27-6-1973 and 5-7-1973 two police reports were submitted to the Magistrate on the basis of which he passed a preliminary order on 27-7-1973 attaching the disputed land. The Sub-Divisional Magistrate, Mawana being unable to decide the question of possession himself made a reference to the civil court under the old Act, Thereafter, the Code of Criminal Procedure 1973 came into force on 1-4-1974 The Civil Court returned a finding to the Sub-Divisional Magistrate on 11-5-1974. Thereafter, the Sub-Divisional Magistrate passed an order in conformity with the finding on 18-5-1974. On the basis of this order, the petitioners were deemed to be in possession of the property in question on the date of the passing of the preliminary order. The opposite parties were restrained from interfering with their possession unless otherwise evicted in accordance with law.

2. Aggrieved by this order, a revision was filed before the Sessions Judge. A preliminary objection was taken mat the revision is not maintainable This objection has been rejected by the Sessions Judge, Meerut on 2-9-1975. He fixed 9-9-1975 for hearing the parties on merits of their respective cases, Aggrieved thereby the present revision has been filed in this Court.

3. I have heard counsel for the parties and have also perused the relevant annexures. Learned Counsel for the petitioner has drawn my attention to Section 146(ID) of the Code of Criminal Procedure 1898 which runs thus:

No appeal shall lie from any finding of the civil court given on a reference under this Section nor shall any review or revision of any such finding foe allowed.

4. Learned Counsel submits that the decision of the Magistrate which has been passed in conformity with the finding given by the civil court has become final and cannot form the subject-matter of the revision before the Sessions Judge. Reference has also been made to Section 484(2)(a) of the Cr.P.C. (New) which runs as follows:

Notwithstanding such repeal. - If immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898, as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force.

5. Reading both these sections together it is urged that the findings of the Magistrate with regard to the petitioner's possession became final and cannot now be reagitated either by way of an appeal or revision. Section 484 of the New Code directs that an application pending under the old Code would be continued in accordance with the provisions of that Code. From a perusal of Section 482(2) there can be no dispute that if any appeal, application, trial, enquiry or investigation is pending on the date when the Code of Criminal Procedure (New) comes into force i.e. on 1-4-1974 then such appeal, application, trial, enquiry or investigation has to be continued and disposed of in accordance with the provisions of the old Code. In the instant case a reference had been made by the Sub-Divisional Magistrate under Section 146(1) of the Code of Criminal Procedure 1898 to the civil court. That reference was pending before him when the new Act came into force. As such, the reference had to be continued in accordance with the provisions of the old Code, it is clear from a narration of the facts given above that the reference was in fact continued and a finding was returned by the civil court on 11-5-1974. Thereafter under Section 146(1)(b) the Magistrate proceeded to pass an order in conformity with the decision of the civil court on 18-5-1974. Thus the proceedings which were pending under Section 145 Cr.P.C. were decided finally by the S.D.M. on 18-5-1974 in accordance with the provisions of the old Code

6. The question now for consideration is whether it was open to the opposite parties to file a revision from the impugned order of the S.D.M. dated 18-5-1974. In this connection respondent's counsel has brought to my notice a decision of the Calcutta High Court reported in 1976 Cri LJ 1297 (Cal) Dhanraj Jain v. B.K. Biswas. Section 484, Cr.P.C. (New) came up for consideration before that Court, It was observed as follows:

It will be seen that Sub-section (2)(a) mentions five categories of proceedings; (i) Appeal, (ii) Application, (iii) Trial, (iv) Enquiry and (v) Investigation. If any of these five categories was pending immediately before the date on which the new Code came into existence, the same will be governed by the Old Code. Appeal is one of the five categories mentioned in the said sub-section. 'Revision' as such is not mentioned there. The word 'application' also has no adjective or adjunct added to it. It is not clear how a revision petition is sought to be made synonymous with an appeal in the Madhya Pradesh Case D. Singh v. Shivnaresh, 1975 Cri LJ 1710 (M.P.). A revisional application unlike an appeal is not a contnuation of the old proceeding to which it relates. The revisional application before us was not clearly pending when the new Code came into force. It is an original application initiating a proceeding. It relates to a pending trial but is neither a trial nor an appeal nor an enquiry or investigation which are referred to in Section 484(2). It is nothing but an application contemplated under the said section, and therefore, not being a pending one, the_ new Code has to apply in respect of the same. It is well known that revision is a discretionary remedy to which no litigant has a vested right. It was held in the case of S. Singh v. Inder Sain, reported in 1974 Cri LJ 13,61 (Him Pra) that in a criminal revision there is not even a right reposed in the petitioner to be heard on merit. The petition, therfore, cannot be said in any sense to be a continuation of the old proceedings.

7. I totally agree with the observations made by the Calcutta High Court In the revision application filed in the instant case there is no mention of the section under which the same has been filed. However, the non-mentioning of a section Is not of much consequence. Such a revision in my view can only be maintainable under the provisions of the new Act. The proceedings under Section 145 Cr.P.C. were initiated on the two police reports and remained pending only so long as the final order had not been passed under Section 146(A) of the Cr.P.C. by the Sub-Divisional Magistrate concerned. As soon as that order was passed, the proceedings terminated, A revision application which is filed thereafter would therefore, be governed by the state of law as it exists on that date. In my view, therefore, Section 482, Cr.P.C. 1974 would not bar the filing of the revision before the Sessions Judge under Section 397(1) of the new Cr.P. C From a perusal of Section 397(1) Cr.P.C. I find that it empowers the High Court or the Sessions Judge to examine the record of any proceeding before any inferior court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court. The revisional jurisdiction under this section can be exercised either by the High Court or by the Sessions Judge, that is, both these courts have concurrent jurisdiction to entertain a revision application. A fetter placed upon the exercise of jurisdiction is that no revision shall lie from an interlocutary order passed in any appeal, enquiry, trial or other proceedings. The impugned order which has been passed by the Magistrate dated 18-5-1974 does not come within the prohibitive category, which cannot form the subject-matter of a revision before a Sessions judge. It must be mentioned here that if the revision before the Sessions Judge had already been filed prior to the coming into force of the new Act, then certainly the procedure prescribed under the old Act would be applicable but since the instant revision had been filed after the enforcement of the new Act on 1-4-1974 the provisions of the Code of Criminal Procedure (New) would be attracted and the respondents' revision before the Sessions Judge would toe legally maintainable.

8. The crucial distinction between the provisions of the Code of Criminal Procedure (Old) and the Criminal Procedure (New) with regard to proceedings under Section 145 Cr.P.C. is that whereas under the old Code the Magistrate was empowered to make a reference to the civil court if he was unable to decide the question of possession and on receipt of its finding to deliver possession to one party or the other, the new Code merely authorises the Magistrate in the event of his failure to decide the question of possession to keep the property in dispute under attachment until the parties get their title decided by a competent civil court. Since the Sessions Judge concerned will now proceed to decide the revision application on the merits, I have no doubt that the Sessions Judge will only interfere with the order of the Magistrate if he finds the same legally vitiated or perverse, If there is no such illegality or perversity in the order of the Magistrate dated 18-5-1974, the said order cannot be interfered with. Parties will then take recourse to a civil court as provided under the Act.

9. For the reasons given above, this application under Section 482, Cr.P.C. is dismissed. The stay order dated 8-10-1975 is hereby vacated. The Sessions Judge, Meerut shall now proceed to decide the revision application filed before him by the opposite parties in accordance with law.


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