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Ramibai W/O Madhosingh Vs. Nathu and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 146 of 1959
Judge
Reported inAIR1961MP25; 1961CriLJ94
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 517, 522 and 561A; Indian Penal Code (IPC) - Sections 452
AppellantRamibai W/O Madhosingh
RespondentNathu and anr.
Appellant AdvocateKhan, Adv.
Respondent AdvocateVohra, Adv.
DispositionReference dismissed
Cases Referred(Jai Berham v. Kedarnath
Excerpt:
.....locked it, or they have put this or that party or any supratdar in it. but this has placed the woman at an advantage which she did not enjoy before the..........the applicant's grievance is in regard to an order passed subsequently, presumably in exercise of inherent power, for maintaining status quo before the starting of the present case to the effect that the complainant should be removed from the house in dispute and the accused persons allowed to re-occupy it. the case raises several important issues regarding the existence and the extent, of inherent power of subordinate criminal courts, the circumstances in which they can be invoked, and the manner of enquiry necessary before any order under inherent jurisdiction can be passed.2. the relevant facts are that the applicant ramibai gave first information report to the police alleging that the non-applicants nathu and kalu, who are father and son, and their wives, ail entered her house and,.....
Judgment:
ORDER

H.R. Krishnan, J.

1. This is a reference by the learned Sessions Judge Ratlam on an application in revision by the complainant in a case before the first class Magistrate. The case itself ended in acquittal but the applicant's grievance is in regard to an order passed subsequently, presumably in exercise of inherent power, for maintaining status quo before the starting of the present case to the effect that the complainant should be removed from the house in dispute and the accused persons allowed to re-occupy it. The case raises several important issues regarding the existence and the extent, of inherent power of subordinate criminal courts, the circumstances in which they can be invoked, and the manner of enquiry necessary before any order under inherent jurisdiction can be passed.

2. The relevant facts are that the applicant Ramibai gave first information report to the Police alleging that the non-applicants Nathu and Kalu, who are father and son, and their wives, ail entered her house and, after beating her, turned her out, throwing out whatever properties she had kept there. The Police gave a charge-sheet u/s 452 I. P. C.; the case ended in acquittal, the Magistrate's finding being that the complainant was not in possession of the house she has claimed, and was making a false and frivolous charge with a view to getting possession through the criminal Court. As for the criminal Courts are concerned this finding has not been altered in appeal and is still in force.

3. The acquittal order was passed on 2-8-1956; on 30-10-1956 Nathu and Kalu applied to the Magistrate that the house referred to in the criminal case was being occupied by the complainant, because during investigation the police has turned them out and installed her. Now that the case had endcd in acquittal and it has been found that the complainant was not originally in possession, she should he removed from the house, and they, the accused persons, who had been acquitted, should now be installed there; thus alone could the status quo ante be restored. The learned Magistrate noticed the police and the complainant (that is the pre-sent applicant), and ordered that the police should go to the house and restore possession to the accused, who are the present non-applicants, after removing the complainant.

4. The learned Sessions Judge has made the reference because he was not satisfied, firstly as to the law under which the order has been made, and secondly, whether as a matter of fact, the police did remove the accused persons during the investigation and instal the complainant. Accordingly he has sent this reference suggesting, firstly that Magistrate's order should be set aside, an secondly that the case should be sent back with a direction.

That an enquiry should be held as to whether the Police had really given the possession of the house to the complainant during the course of investigation. In this court the complainant has supported the first suggestion but has opposed the second, while the opposite party prayed that the Magistrate's order should be maintained in toto and the reference foe rejected.

5. The first question is whether there is any provision in the Criminal Procedure Code justifying such an order; and if there is none, whether tha Magistrate could pass such an order in exercise of inherent jurisdiction assumed, but not notified, by the Code.

6. Section 517 of the Criminal Procedure Code provides for the disposal by the Court of the property produced before it, or in its custody (which I would understand in charge as well). This section does not speak of movable property only but of property generally, including immovables, though often it would be the former. By 'custody' as applied to immovable property, I would understand 'charge and control' as it is obviously impossible to bring the immovable property into the Court.

It may be in attachment or in charge of the police or a Supratdar, Under Section 517 Cri. P. C. the jurisdiction to dispose of the property when the case or inquiry is concluded is general, it being immaterial for the purposes of this section whether it is acquittal, conviction or discharge. But it is essential that property should be in the custody or charge of the Court.

7. Section 522 Cr, P. C., however, deals with immovable property, and can be invoked by the Court only when a person is convicted of an offence either attended by criminal force or show of force or by criminal intimidation. In the present case Section 522 has no application. Section 517 also does not in terms apply, because there is nothing in the record to show that the Police took charge of the house or any other authority did at the instance of trial Court; and it installed this or that party, or removed one or both of them during the investigation of the case, nor did the Court give any direction as to the house during pendency of trial.

It is perfectly conceivable that in cases with criminal trespass attended with violence the police take charge of the immovable property, and report to the Court either that they have locked it, or they have put this or that party or any Supratdar in it. It is also conceivable that the Court gives directions in this regard. The present case though similar to this type is still not directly covered by Section 517(a) because there is no report by the Police that they had taken charge, and there has been any direction by the Court itself during the trial. Thus strictly speaking the Court could pass the order neither u/s 522 Cri. Pro. Code nor, in the circumstances, u/s 517 Cri. Pro. Code. This can be only in exercise of its inherent jurisdiction.

8. This takes us to the question as to whether Subordinate criminal courts have any inherent powers at all as are referred to in Section 151 Civil Procedure Code, and in regard to the High Courts, in Section 561-A of the Cr. P. C. itself. Both these Sections have about the same formula describing the inherent power, except that 561-A adds 'or otherwise to secure the ends of justice'. It is not as if either section created or invested the courts concerned with any new power. On the contrary, the power is already there and all that these sections do is to provide that in regard to all civil courts, nothing in the C. P. C. limits or otherwise affects the inherent power, and in regard to the High Court, acting as the court of criminal justice, that nothing in the Criminal Procedure Code does so limit or affect its inherent power.

As for the subordinate criminal courts that in-herent power has not been taken away; but is limited by the express provisions of the Code, while in a similar case in regard to the civil courts there is no such limitation. Thus one comes to the conclusion that every criminal court has got inherent power to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any court, or otherwise to secure the ends of justice; but a criminal court other than a High Court cannot invoke this power if there is already an express provision in the Code in this regard.

In practice, the Criminal Procedure Code seeks to be exhaustive, so that the occasion for exercise of inherent power by a subordinate criminal court (unlike a civil court) arises very rarely. Further it would be an occasion very similar to one arising under this or that express provision in the Code, with the difference that it does not quite fall within the four corners of that section. It is the duty of every such court to act rightly and fairly according to the circumstances towards all parties involved (Jai Berham v. Kedarnath, AIR 1922 PC 269), even in the absence of an express provision in the Code. The only caution is that there should be a pressing call for justice, and the cause is generally similar to the one under the nearest analogous section of the Code.

9. Thus there is nothing wrong in principle In the Magistrate passing an order in regard to the house concerned, even though it had not come in his charge during the investigation or trial. Generally speaking cases of this kind are brought, as in this instance, against a back ground of chronic civil dispute. Each party is anxious to forstall the other by getting into the advantageous position on being actually in possession of the property, thus driving the other to the uncertain, slow, and costly process of civil court. If by bringing a criminal case one party succeeds in reversing the status quo, and securing itself this advatageous position, it would have won half the battle; at the same time, it would have done this by the abuse of process of the criminal court.

In the instance case, for example, there had been considerable difference in regard to this property between the complainant Ramibai on the one hand, and the accused persons Nathusingh and other members of his family, Ramibai alleged that Nathusing and his family managed to enter the house in which she was living in peaceful possession, beat her, threw away her properties and chased her out. But when the case was heard it was found that Ramibai was never in possession of the house and had brought a false and vexatious case with an ulterior purpose. Not only the accused were acquitted but also was the complainant called upon to show cause against an order for compensation tinder Section 250 Cri. Pro. Code. At this stage those findings are final as far as the criminal court is concerned.

10. It is also common ground that at the end of the criminal case, it was Ramibai that was in possession of the house. Since she had herself stated that she had been driven out, it is certain that she had gone back to the house some time after the starting of the case, and before its conclusion. Two alternatives are possible; either the Police them-selves removed the accused persons and installed the woman there; secondly, as often happens, when the Police came, the accused persons got afraid, and made themselves scarce; the house being open and unoccupied the complainant stepped in. In the petition the accused persons allege that it was the first alternative and the police were noticed. The Magistrate himself mentions in his order

'that it was wrong on the part of the police authorities to have removed the accused and installed the woman'.

What we are concerned with is not whether it was right or wrong, but whether the police pushed out the accused persons and installed the woman. The enquiry has already been made, with the finding already quoted. So, there is no point in the direction given by the learned Sessions Judge that the matter should go back for further investigation. Even on the second alternative of the accused persons running away hearing that the police were coming, and thus enabling the. complainant to step in, the result is just the same. Either way the complainant brought a criminal case without truth or any justification and has thereby succeeded in dispossessing the accused persons and getting possession for herself.

Certainly this is not final because the dispute about title may be taken to the civil court. But this has placed the woman at an advantage which she did not enjoy before the case. In this way she has abused the process of criminal court. Had this case been coming under Section 517(a) an order could be passed under that section; but it does not just come under it. The inherent power is meant exactly for such situations to remedy the result of the abuse of the process of the Court, and in the absence of an express enabling provision.

11. The result is that the learned Magistrate'sorder ordering the house to be restored to the accused persons, does not call for any interference bythis Court. The reference is dismissed.


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