1. This is a revision application by Panah Mohd. and Baldar Khan against the interim order of Shri S. N. Shrivastava, Additional Sessions Judge, Bhopal directing them to furnish security to the extent of Rs. 1,000/- so that if final orders in the present proceeding are against them, Hasham Khan, non-applicant, may be compensated to this extent.
2. Hasham Khan had been served but he did not put in his appearance to oppose the present revision application. It was, therefore, heard in his absence though the State Counsel was given an opportunity to support the order if he considered necessary. The State Counsel has not opposed the revision application.
3. The learned Sessions Judge, was of opinion that Sessions Judges had inherent powers similar to those of the High Courts as indicated in Section 561-A, Criminal P.C. and could consequently impose conditions so that the parties to the proceeding may not be adversely affected, if the decision of the High Court was eventually against the party which was held by the trial Court to be entitled to possession and was to continue in possession unless evicted under orders of a competent Court.
For the purposes of the present case it is not necessary for me to express any opinion as to whether the Subordinate Criminal Courts possess such inherent powers or not. Even if it be presumed that they could exercise certain inherent powers so as to prevent the abuse of the process of the Court or to avoid the possibility of any injustice being done to a party as a result of an order to be passed by the Court, the present order directing the applicants to furnish security cannot be upheld.
4. Before discussing the have on the point, a reference may be made to the facts of the case which are simple and do not appear to be in dispute. The present applicants had moved an application for taking proceedings under Section 145, Cr. Pro. Code with regard to Revenue Survey Plots Nos. 105 and 182/10. situate in Village Semri Kala with the usual allegations that they were in culttvatory possession of the plots and Hasham Khan, non-applicant, was wrongly claiming the plots and that there was an apprehension of the breach of peace.
The learned Magistrate attached the plots and on conclusion of the proceeding directed that the applicants were entitled to possession of the plots. At the same time Hasham Khan, non-applicant was ordered not to disturb the possession of the applicants unless evicted in due course of law. This order is dated 30-12-1954. The applicants were put into possession of the plots on 5-1-1955.
It was thereafter that the non-applicant moved a revision application before the Sessions Judge. Originally a request was made for the suspension of the execution of the above order; but later on, when it was realised that after the delivery of possession it could not be re-transferred to the non-applicant, a request was made that the applicants be directed to furnish security so that the non-applicant could be reimbursed in case the order of the Magistrate was eventually set aside. The learned Sessions Judge allowed this request and has ordered the applicants to furnish security to the extent of Rs. 1000/-.
5. A perusal of Sections 426, 435 and 438 of the Code of Criminal Procedure will make it clear that only restricted powers have been given to the Sessions Judges, and to the District Magistrates, while hearing a revision application, that is while calling for and examining the record before making a report to the High Court or while actually making a reference to the High Court. Section 426, Criminal P.C. provides for the powers of an Appellate Court which are much wider than of the same Court while exercising revisional jurisdiction.
The Appellate Courts have been conferred with the power to order the suspension of the execution of a sentence or order appealed against. But in Sections 435 and 438 Criminal P.C. the word 'Order' has been specifically excluded. Section 435 (1) Criminal P.C. authorises the Sessions Judge to order the suspension of the execution of a sentence, and If the accused is in confinement, to order his release on bail or on his own bond pending examination of the record.
Similarly, Section 438(1) Criminal P. c, provides that in cases where a recommendation is being made for the reversal or alteration of a sentence, the Sessions Judge, or District Magistrate, can order the suspension of the execution of such sentence. These sections (435 and 438) do not at all provide for the suspension of the execution of an order which may be the subject-matter of the revision application. In other words, the afore-mentioned three Sections indicate beyond any doubt that the legislature intentionally took away certain powers from the subordinate Criminal Courts, for example, the power to order suspension of the execution of an order under revision.
When the legislature did not confer such powers on the subordinate Criminal Courts they cannot in exercise of the supposed inherent powers exercise such powers. It may further be added that the inherent powers could be exercised only if an order passed in exercise of such powers should not be repugnant to the provisions of the Act.
In other words, if the subordinate Criminal Courts were to order the suspension of the execution of an order it would be in direct conflict with the provisions of Sections 435 and 438 of the Code of Criminal Procedure and consequently the subordinate Criminal Court cannot directly or indirectly order the suspension of the execution of an order under revision.
6. In the present case, the learned Sessions Judge has ordered the applicants to furnish security and in case of failure to do so, the non-applicant was permitted to enter the land for the purpose of cutting the crop and to remove it without taking back possession of the land till the final disposal of the revision. The effect of this order would be that the non-applicant will have all the benefits of the land without having himself cultivated it.
In fact such an order would indirectly put the non-applicant into possession of the plots. This is apparently in conflict with Section 435 and Section 438 of the Code of Criminal Procedure and such order should not have been passed by the Sessions Judge.
7. The revision application is hereby allowed and the order dated 22-2-55, under revision, of the Additional Sessions Judge is set aside. The security if already furnished by the applicants shall stand cancelled.