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Jahara Panigrahi Vs. Ula Panigrahi and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 385 of 1964
Judge
Reported inAIR1965Ori199; 1965CriLJ660
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 435, 435(1), 436, 437, 438, 517(1) and 520
AppellantJahara Panigrahi
RespondentUla Panigrahi and anr.
Advocates:P.V. Ramdas, Adv.
DispositionPetition allowed
Cases ReferredSheo Dan v. Pir Dan
Excerpt:
.....approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it is well settled in sharfuddin v. in 27 cut l t 23 :(a i r 1961 orissa 121) this court, clearly held that no appeal lay to the sessions judges under section 520, criminal p. pir dan, a i r 1963 punj 167 a division bench of that court accepted air 1959 all 96 as laying down good law despite the fact that the later division bench decision in a i r 1961 all 544, overruling the earlier single judge decision was brought to their lordships' notice......on account of the seized paddy.'against this order the accused filed an application before the learned sessions judge on 10-3-1984. he told that there was no clear finding by the magistrate that the complainant had grown the paddy in question. as the paddy was seized from the custody of the accused, he directed payment of the sale proceeds to them. against this order of the learned sessions judge, the criminal revision has been filed.2. a preliminary objection was raised before the learned sessions judge that no appeal lay to him under section 520, criminal p. c. from an order passed section 517 (1), criminal p. c. the learned sessions judge accepted the contention of the complainant that no appeal lay. but he came to the conclusion that he could exercise power of superintendence and.....
Judgment:
ORDER

G.K. Misra, J.

1. Petitioner filed a complaint against the opposite parties alleging that the son of the petitioner and some other persons were bringing their paddy from the field on 12-12-1961 when the opposite parties removed the paddy from their custody and kept them in their own thrashing floor. Police seized the paddy from the thrashing floor of the accused on 11-1-1962. The accused persons were acquitted of the charges under Sections 379 and 477, Penal Code on 17-12-1963. No appeal was filed and the order of acquittal became final. The complainant filed an application before the Magistrate under Section 517, Criminal P. C. for return of the sale proceeds of the paddy seized from the thrashing floor of the accused on 11-1-1962. The Magistrate passed the following order on 22-2-1964 :

'The complainant and the accused persons put their respective application to take delivery of the seized paddy deposited in the Court in form of cash after sale. The paddy was seized from the thrashing Moor of the accused. In this particular case, the D. W. 1 admits that, the paddy was raised by the complainant, and the land was in her possession. Hence, the complainant is ordered to take the amount deposited in the Court on account of the seized paddy.'

Against this order the accused filed an application before the learned Sessions Judge on 10-3-1984. He told that there was no clear finding by the Magistrate that the complainant had grown the paddy in question. As the paddy was seized from the custody of the accused, he directed payment of the sale proceeds to them. Against this order of the learned Sessions Judge, the criminal revision has been filed.

2. A preliminary objection was raised before the learned Sessions Judge that no appeal lay to him under Section 520, Criminal P. C. from an order passed Section 517 (1), Criminal P. C. The learned Sessions Judge accepted the contention of the complainant that no appeal lay. But he came to the conclusion that he could exercise power of superintendence and could interfere with the order. It would be pertinent to quote the order of the learned Sessions Judge to appreciate the point in issue.

It is well settled in Sharfuddin v. Sirajuddin, 27 Cut L T 23 : (A I R 1961 Orissa 121) that an independent appeal under Section 520, Criminal P. C. is not maintainable. But a petition can be filed by the aggrieved party under Section 520, Criminal P. C. challenging the order passed by the trial Court under Section 517, Criminal P. C. The higher Criminal Courts act under Section 520, Criminal P. C. in exercise of their general power of superintendence.

3. Mr. P.V. Ramdas raised two contentions :

(i) The learned Sessions Judge has no appellate forum under Section 520, Criminal P. C. against an order under Section 517, Criminal P. C. He has also no power of superintendence. The power of superintendence is conferred under Section 435, Criminal P. C. which is subject to Section 438, Criminal P. C. The Sessions Judge-can make a reference to the High Court and cannot annul the order of the Magistrate.

(ii) On merits the learned Sessions Judge did not take into consideration the evidence of the witnesses for the complainant stating that the complainant grew the crop.

4. The first contention deserves close scrutiny. In 27 Cut L T 23 : (A I R 1961 Orissa 121) this Court, clearly held that no appeal lay to the Sessions Judges under Section 520, Criminal P. C. against an order under Section 517 (1), Criminal P. C. This was mainly based on a' Single Judge decision of the Allahabad High Court in Talewar Jha v. Moolchand, A I R 1959 All 96. The Court also was aware of the sharp conflict of authority on this point. AIR 1959 All 96, was subsequently, overruled by a Division Bench of that Court in Ram, Abhilakh v. State, AIR 1981 All 544. As the single Judge decision has been overruled, it was contended in Arjun Padhy v. State, 30 Cut L T 493 : (A I R 1965 Orissa 198) for reviewing the decision in 27 Cut L T 23 : (A I R 1961 Orissa 121) and the learned Chief Justice did not express any final opinion in the matter. It is, however, to be noted that in Sheo Dan v. Pir Dan, A I R 1963 Punj 167 a Division Bench of that Court accepted AIR 1959 All 96 as laying down good law despite the fact that the later Division Bench decision in A I R 1961 All 544, overruling the earlier Single Judge decision was brought to their Lordships' notice. It is unnecessary to refer to some other authorities which have subsequently come into existence after the decision of this Court in 27 Cut L T 23 : (A I R 1961 Orissa 121). It would be sufficient to say that it represents one view over which there is sharp conflict of authority and this view has been accepted as the correct view in A I R 1963 Punj 167. In the aforesaid state of things, it is unnecessary to refer the matter to a Division Bench for reconsideration. I hold that 27 Cut L T 23 : (A I R 1961 Orissa 121) has been correctly decided.

5. On the authority of that decision, the position of law is not disputed that no appeal lies to the Sessions Judge under Section 520, Criminal P. C. against an order under Section 517 (1). The learned Sessions Judge, however, took the view that he could exercise power of superintendence. He, however, made no reference to any section under which he could annual the final order when no appeal lay to him under Section 520, Criminal P. C. in exercise of his power of superintendence. The only section on which reliance can be placed is Section 435 (1), Criminal P. C. which runs as follows :

'435. (1) The High Court or any Sessions Judge, or District Magistrate, or any sub-divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself 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 and may when calling for such records, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

It is, however, to be noted that except as laid down in Section 435, Criminal P. C, the Sessions Judge cannot finally dispose of any other matters which come within the purview of Section 435. He is only to make a reference to the High Court under Section 438, Criminal P. C. with regard to the residual matters. Section 438 (1), Criminal P. C. lays down that the Sessions Judge, if he thinks fit, on examining under Section 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination, and, when, such report contains a recommendation that a sentence be reversed or altered may order that the execution of such sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond.

It is thus manifest that though the Sessions Judge has got power of superintendence under Section 435, Criminal P. C,, he has no power to finally dispose of matters unless they come within the purview of Sections 436 and 437, Criminal P. C. The learned Sessions Judge missed this point and interfered with the final order passed by the Magistrate under Section 517 (1), Criminal P. C. The learned Sessions Judge had no jurisdiction to quash the order of the learned Magistrate (See AIR 1963 Punj 167, paras. 7 and 9). The judgment of the learned Sessions Judge must accordingly be set aside.

6. In view of the aforesaid conclusion, it is unnecessary to examine the merits of the question whether the complainant or the accused grew the crop. The finding of the learned Magistrate that the complainant is entitled to the sale proceeds stands and it is not necessary to go into that question when no revision has been filed by the accused persons who were aggrieved by such order.

7. In the result the judgment of the learned Sessions Judge is set aside and that of the trial Court restored and the revision is allowed.


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