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SharfuddIn Vs. SirajuddIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Ref. No. 49 of 1960
Judge
Reported inAIR1961Ori121; 1961CriLJ133
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145(5), 146, 146(5), 517, 518, 519 and 520
AppellantSharfuddin
RespondentSirajuddIn and anr.
Appellant AdvocateG.K. Misra and ;S.K. Misra, Advs.
Respondent AdvocateAsok Das and ;L. Rath, Advs
DispositionReference accepted
Cases Referred and Harihar Singh v. Nilkantha Singh
Excerpt:
.....v. moreover, the legislature would then have clearly indicated as to what are the appellate courts contemplated in section 520 cri. i am accordingly satisfied that the reference made by the sessions judge is competent as there was no right of appeal against the order of the magistrate dated 18-2-60. 7. for the aforesaid reasons the reference isaccepted and the order of the magistrate dated18-2-60 is set aside......to that party. in substance, his order dated 18-2-60, has the effect of putting the second party in possession of the disputed property without a proper enquiry and without a proper finding as to whether that party has established his posses-sion in the proceeding under section 145 cri. p. c.it would amount to an evasion of the provisions of that section. i have therefore no hesitation in accepting the reference and setting aside the order of the magistrate dated 18-2-60. if as stated by him in his earlier order dated 18-1-60 the lands were in the possession of tenants who have not been disturbed by either party that possession may continue until either party chooses to go to the civil court for the establishment of his rights and for obtaining interim relief.5. i may now dispose.....
Judgment:
ORDER

R.L. Narasimham, C.J.

1. This is a reference by the Sessions Judge of Sambalpur recommending the setting aside of an order dated 18-2-60 passed by a First Class Magistrate of Uditnagar directing delivery of possession of certain lands io the second party (opposite party in this proceeding),

2. The disputed lands were the subject matter of a regular proceeding under Section 145 Cri. P. C. before the said Magistrate, in MiscellaneousCase No. 602/T-435 of 1959. The lands were attached during the pendency of the proceeding. The learned Magistrate eventually dropped the proceeding under Section 145 Cri. P. C. on 18-1-60 observing that he was not inclined to believe that there would be any fresh breach of peace between the parties and that they might get their dispute decided by the Civil Court.

On the question of possession lie held that neither party was in actual possession as the disputed lands were cultivated by tenants. He also observed that neither party threatened to dispossess the tenants. Though the Magistrate thus dropped the proceeding on 18-1-60 he did not pass any ancillary order on that date as regards the disposal of the attached lands.

After waiting for the period of revision, the learned Magistrate on 18-2-60 passed an order directing that the lands be handed over to the second party, observing that the lands were eventually attached from that party and consequently they should be restored to them. Against this order, the 1st party moved the Sessions Judge who has made this reference for setting aside that order.

3. It has been decided by this Court in some decisions that if, after the commencement of a new proceeding under Section 145 Cri. P. C. the Magistrate is satisfied that there is no apprehension of a breach of peace he may be entitled to drop the proceeding and pass such ancillary orders as may be necessary for the disposal of the attached property : see Baidyanath v. Kunja Behari, 22 Cut LT 435, Dasa Mohanty v. Gadadhar Samal, 23 Cut LT 37 : (AIR 1957 Orissa 92) and Mathrui Mallik v. Satrughna Girl, 25 Cut LT 340 : (AIR 1959 Orissa 81).

But as pointed out in the last decision the Magistrate should not resort to the device of dropping the proceeding merely with a view to evade his responsibility to decide the dispute and pass final orders in favour of either party or if circumstances so justify it, make a reference to the Civil Court as provided in Section 146, Cri. P. C. By merely dropping the proceeding, the evil day is only postponed because there may again be apprehension of breach of peace and the Magistrate may again have to start a fresh proceeding under Section 145 Cri. P. C. and go through the entire process, causing not only inconvenience to himself but also harassment to the parties concerned.

Doubtless, if he is fully convinced that the parties are not likely to commit breach of peace in respect of the disputed property, his jurisdiction to continue the proceeding under Section 145 Cri. P. C. terminates and the proceeding must be dropped or cancelled as permitted by Sub-section (5) of Section 145, Cri. P. C. But this step should not be used as a device to enable the Magistrate io summarily dispose of a long pending case.

4. On the finding of the Magistrate as contained in his order dated 18-1-60 his subsequent order dated 18-2-60 directing possession of the disputed property to the second party cannot be, supported. He observed that neither party was able to prove his possession which in the circumstances was the possession of the landlord -- andthat the lands were in the actual possession of the tenants who wore not being disturbed by either party and that there was therefore no apprehension of breach of peace.

In his subsequent order dated 18-2-60 he observed that the lands were evidently attached from the second party. There was absolutely no material before him to justify such an observation. According to his earlier order the lands were all along in the possession of his tenants. He relied very much on the fact that in the petition of the first party, dated 30-10-59 it was alleged that the 2nd party were not allowing the first party to go upon the lands since 24-10-59.

From this statement, the learned Magistrate thought that the second party were in possession after the 24th October, 1959. If this be the reasonable inference, from the statement made by the first party in his petition dated 30-10-59, it is inexplicable as to why such an inference was not drawn when he passed the main order on 18-1-60. He could then have held the second party to have been in actual possession from the date of commencement of the proceeding and passed a final order in that party's favour.

But when he found, as a fact that neither party was in actual possession it is obvious that he did hot attach much importance to this state-ment in the petition of the first party dated 30-10-59. He should not therefore have utilised it, on 18-2-60, for the limited purpose of passing an ancillary order restoring possession of the disputed property to that party. In substance, his order dated 18-2-60, has the effect of putting the second party in possession of the disputed property without a proper enquiry and without a proper finding as to whether that party has established his posses-sion in the proceeding under Section 145 Cri. P. C.

It would amount to an evasion of the provisions of that section. I have therefore no hesitation in accepting the reference and setting aside the order of the Magistrate dated 18-2-60. If as stated by him in his earlier order dated 18-1-60 the lands were in the possession of tenants who have not been disturbed by either party that possession may continue until either party chooses to go to the Civil Court for the establishment of his rights and for obtaining interim relief.

5. I may now dispose of a preliminary objection raised by Mr. Das, for the opposite party regarding the maintainability of this reference. He urged that the order of the learned Magistrate dated 18-2-60 must be held to be, in substance, an order passed under Section 517 (1) Cri. P. C. as pointed out in 22 Cut LT 435. According to Mr. Das, that order is appealable under Section 520 Cri. P. C. to the Sessions Judge and where such a right of appeal is conferred the revisional jurisdiction of this Court is expressly barred by Sub-section (5) of Section 439 Cri. P. C. This argument necessitates a careful examination of the true scope of Section 520 Cri. P. C. about which there is sharp conflict of judicial opinion. That section runs thus :

'520. Stay of order under Section 517, 518 or 519--Any court of appeal, confirmation, reference or revision, may direct any order under Section 517,Section 518. or Section 519, passed by a Court subordinate thereto, to be stayed pending consideration by the former Court and may modify, alter, or annul such order and make any further orders that may be just'.

In express terms this section does not purport to confer an independent right of appeal and one of the views which has found favour with some of the High- Courts is that it only authorises a Court of appeal, or a Court of revision, or a Court to which a case is referred for confirmation, while disposing such an appeal, revision or reference, to modify, alter or annul an order passed by the lower court under Section 517, Cri. P. C. : See Ghulam AH v. Emperor, AIR 1945 Lah 47 and Ibrahim Rahma-tullah v. Emperor, AIR 1947 Nag 33 and also a recent single Judge decision of the Allahabad High Court reported in Talewar Jha v. Mool Chand, AIR 1959 All 96 where the entire case law on the subject has been fully discussed.

On the other hand, the majority of the High Courts have held that Section 520 Cri. P. C. confers an independent right of appeal, or revision, as the case may be, against an order passed under Section 517! Cri, P. C. irrespective of whether the order passed by the lower court in the main case was either subject to appeal or was actually taken up on appeal : See Empress, v. Jogcs.sur Mochi, ILR 3 Cal 379; Queen Empress v. Ahmed, ILR 9 Mad 448; U Po Hla v. Ko Po Shein, AIR 1929 Rang 97 (FB) followed in Walchand v. Hari Anant, AIR 1932 Bom 534 (FB); Asst. Collector of Customs, Central Excise, Kandamangalam v. Krishna Pillai, AIR 1958 Mad 42 and Harihar Singh v. Nilkantha Singh, AIR 1957 Pat 685.

The relative merits of the aforesaid two conflicting views have been fully set out in the aforesaid single Judge decision of the Allahabad High Court in AIR 1959 All 96, and it is unnecessary to refer to them here. As there i? no previous decision of this Court on the subject, I am free to prefer either of the two views which may appear to me more in consonance with the true rule of statutory construction.

6. The majority of the High Courts -- who have preferred the view, that See. 520 Cri. P. C. confers an independent right of appeal or revision, as the case may be -- seem to have been very much influenced by the fact that if the alternative, narrow view bo taken a party will be remediless if the main dispute is not taken up on appeal of revision. Thus, if a case ends in acquittal and the Magistrate passes an order for disposal of the property, under Section 517 Cri. P. O, and no parly challenges that order of acquittal, the person aggrieved by the Magistrate's order under Section 517 Cri. P. C. will be left without a remedy unless Section 520 Cri. P. C. is so construed as giving him an independent right to approach the superior Courts,

This argument is not quite correct because even in such cases the party aggrieved by an order under Section 517 Cri. P. C. may always approach the High Court to exercise : its powers of revision under Section 439 Cri. P. C. But on this ground alone it will not be proper to give an artificial construction to Section 520 Cri. P. C. Whenever the makers ofthe Code wanted to confer a right of appeal against a particular order, they expressed themselves in clear language.

Thus in Sub-section (2) of Section 529 Cri. P. G. which occurs in the very same chapter, a special right of appeal was conferred against an order passed under Sub-section (1) of that section which would otherwise not be appealable. Similarly, in Section 476-B Cri P. C. the Legislature : has made its intention absolutely clear as regards the right of appeal against an order passed under Section 476 or Section 476-A Cri. P. C.

If Section 520 Cri, P. C. was also intended to confer an independent right of appeal against an order passed under Section 517, 518 or 519 Cri P. C. --irrespective of whether the main dispute was taken up on appeal or revision to the superior courts, the Legislature would surely have said so in clear language. The expression 'any court of appeal' occurring in Section 520 Cri. P. C. is somewhat ambiguous and does not show what is the court which would entertain the appeal against an order passed under Section 517 Cri. P. C.

In some of the reported decisions, an attempt was made to resolve the ambiguity by construing the aforesaid expression to mean a court to which 'an appeal would ordinarily lie' against the judgment of the court concerned, adopting the language used by the Legislature in Sub-section (3) of Section 195 Cri. P. C. If such a construction be placed on that expression, the reference to the court of 'confirmation' in Section 520 will be quite inept.

The only provision in the Code by which the High Court is expressly conferred the power of confirmation is that contained in Section 874 dealing with confirmation of death sentences. The other provision which might! possibly lie construed as referring to a court of confirmation is Sub-section (2) of Section 123 which requires a Magistrate to submit to the Court of Session the records of a case in a proceeding under Section 1.10 Cri. P. C. when security is required to be given for a period of more than a year.

In all these cases of confirmation the main case must necessarily be submitted to the superior court and consequently any order under Section 517 Cri, P. C. passed by the lower court would also come up for consideration of the court of confirmation. There can thus be no question of construing Section 520 Cri. P. C. as conferring an independent power so far as a court of confirmation is concerned. Then Again the reference to the court of 'revision' in Section 520 Cri. P. C. is not explainable according to the liberal view.

There cannot be a right of appeal and exercise of revisional jurisdiction at the same time, over the same order. If the intention was that revisional jurisdiction should be exercised only over an appellate order passed under Section 520 Cri. P. C. such an intention would have been made clear by appropriate language. Moreover, the Legislature would then have clearly indicated as to what are the appellate courts contemplated in Section 520 Cri. P. C. and what will be the courts of revision, by using language similar to that used in Sub-section (3) of Section 195 Cri, P. C.

I am inclined to agree respectfully with the observations of the Allahabad High Court in AIR ,1959 All 96 that if Section 520 Cri. P. C. was actually intended to give an independent right of appeal against an order passed under Section 517 or 518 or 519 Cri. P. C. that section would have been worded differently. In the absence of such express words Section 520 Cri. P. C, must be construed in the narrow sense as pointed in the Allahabad decision. I am accordingly satisfied that the reference made by the Sessions Judge is competent as there was no right of appeal against the order of the Magistrate dated 18-2-60.

7. For the aforesaid reasons the reference isaccepted and the order of the Magistrate dated18-2-60 is set aside.


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