M.L. Joshi, J.
1. This is a revision petition directed against the order of Sessions Judge. Bhilwara, dated 10-3-1971. passed in Criminal Revision No. 52 of 1970. arising out of proceedings under Section 145, Cr. P. C.
2. The facts which has led to this revision before me stated in brief are these : There is a Khasra No, 2 measuring 268 Bighas. 11 Biswas, in village Nilki-kheri, in Tahsil Mandalgarh. On a report by the S.H.O.. Police Station, Mandalgarh. proceedings under Section 145. Cr.P.C. were instituted by the Sub-Divisional Magistrate, Bhilwara. in respect of the aforesaid Khasra. The Samuhik Krishi Sahkari Samiti Ltd.. Mandalgarh (hereinafter called Party No. 1) alleged that the said Khasra has been allotted to it and it was in possession of the same. On the other hand, the respondents of the village Nil-ki-kheri alleged that they were in possession of the land. There was thus a dispute in respect of the said Khasra and the Sub-Divisional Magistrate being satisfied that there was likelihood of a breach of the peace drew a preliminary order under Section 145. Cr.P.C. and called upon the party to submit their respective claims as to their actual possession. On the same day. the Magistrate being satisfied that there existed emergency in respect of the likelihood of a breach of the peace, attached the said land. Both the parties in response to the notices submitted their respective claims as to their actual possession and also filed affidavits in support of their respective claims. After perusing the written statements and the affidavits presented on behalf of the Parties concerned, the learned Sub-Divisional Magistrate. Bhilwara. came to the conclusion that it was difficult for him to give a finding as to who was actually in possession of the disputed Khasra on the date of the drawing of the preliminary order or two months prior to the same. He consequently did not declare the. possession of any of the parties to the dispute but appointed Tahsildar, Mandalgarh as the Receiver of the disputed land till the parties concerned would get their title declared by a competent Court. The Party No, 1 felt dissatisfied with the order of the learned Sub-Divisional Magistrate and, therefore, moved the Sessions Judge. Bhilwara. in revision and challenged before him the correctness of the order passed by the learned Sub-Divisional Magistrate. The Party No. 2, however, did not take any exception to the order passed by the learned Sub-Divisional Magistrate. At the time of hearing of the revision by the learned Sessions Judge, it appears from the order of the learned Sessions Judge that nobody appeared on behalf of the petitioner before him to address in support of the revision petition. The learned Sessions Judge, however, after perusing the order of the learned Sub-Divisional Magistrate, did not see any error in the said order and. therefore, confirmed the same and consequently dismissed the revision by his order dated 10th of March. 1971. The Party No. 1. the petitioner before me. did not feel satisfied with the order of the learned Sessions Judge and has therefore, come in revision to this Court. The revision application was presented on 14-6-1971. It may be recalled that the learned Sub-Divisional Magistrate passed the final order under Section 145, Cr.P.C. on 18-7-1970. The revision petition before the learned Sessions Judge was disposed of on 10th March. 1971. as already stated above.
3. A preliminary objection has been raised on behalf of the Party No. 2, the respondent before me. that the revision application is barred by time as the same was presented beyond a period of 90 days from the date of the order of the learned Sub-Divisional Magistrate. It was contended that the period of 90 days is to be calculated from the date of the order sought to be revised as prescribed by Article 131 of the Indian Limitation Act of 1963 (Act No. 36 of 1963). hereinafter called the New Limitation Act. Article 131 of the Limitation Act reads as under:
31. To any court for Ninety days The date of the exercise of the decreeits powers of or order orrevision under sentencethe Code of sought toCivil Proce- be revised,dure, 1908 or the Code of Criminal Proce-dure 1898.
It has been submitted on behalf of the respondent that the order sought to be revised occurring in column 3 of the said Article has reference to the order of the trial Court and if so considered, the revision petition presented to this Court is obviously barred by time. The decision on the preliminary point, therefore, rests on the interpretation of the expression 'Order or sentence sought to be revised' occurring in the column 3 of the Article 131 of the Limitation Act.
4. In order to find out the true meaning of expression 'Order or sentence sought to be revised' it will be useful to bring out important legal provisions and the practice which was prevalent before the passing of the New Limitation Act. Reference may first be made to the provisions of Sections 435. 437 and 439 of the Criminal Procedure Code. Under Section 435, Cr.P.C. concurrent jurisdiction in the matter of revision has been conferred upon the District Magistrate. Sessions Judge and the High Court. Under Section 436. Cr.P.C.. the District Magistrate, Sessions Judge or the High Court may order for further enquiry into any complaint which has been dismissed under Section 203 or Sub-section (3) of Section 204, Cr.P.C. or into the case of any person accused of an offence who has been discharged. This section of course has been given a limited operation in situations referred to therein. It will appear from this section that final order could be passed by the District Magistrate or Sessions Judge, as the case may be in three contingencies mentioned in the section without reporting the matter to the High Court. Section 437. Cr.P.C., empowers the Sessions Judge or District Magistrate to direct a fresh enquiry in a case triable exclusively by the Sessions Court where any person accused of the offence has been improperly discharged. In all other cases excepting referred to in Sections 436 and 437. Cr.P.C. if a revision petition is made before the District Magistrate or the Sessions Judge, they have no competence to pass the final orders but shall have to report the matter by making a reference to this Court for passing appropriate final orders as the facts and circumstances of the case may demand, Then comes Section 436, Cr.P.C., which only relates to the revisional power of the High Court. Under Section 439. Cr.P.C.. the High Court has been empowered to call for the record of any case by itself or on the report of the District Magistrate or the Sessions Judge and revise any order or make enhancement in the sentence and also do : any of the acts contemplated under Section 439. Cr.P.C.
5. Prior to the promulgation of the Article 131 of the Indian Limitation Act. there was a well-settled practice prevalent in almost all the High Courts and more specially in this Court to the effect that where there is concurrent jurisdiction conferred on inferior Court, the superior Court will not directly entertain the revision and would insist that the revision petitioner should first invoke the revisional jurisdiction of the inferior Court. This was the state of law and the judicial practice as to the exercise of the concurrent jurisdiction and for filing the revision applications. It is in this background of the state of law and practice that I have to find out the true meaning of the expression 'Order or sentence sought to be revised' occurring in column 3 of the New Indian Limitation Act. It is to be remembered that the judicial pronouncements of the various High Courts in regard to the mode of exercise of the concurrent jurisdiction must have been within the notice of the legislature as the legislature cannot be deemed to be unaware while enacting the particular provisions and more specially the provisions relating to the limitation for filing the revision. As already stated there was no statutory period of limitation prescribed for filing revisions under the Code of Criminal Procedure. It was for the first time that the statutory period of limitation came to be prescribed under the New Act of 1963 by enacting Article 131 of the Limitation Act. In this context it has to be seen whether the legislature really meant by the expression 'Order or sentence sought to be revised', the order of the trial court or whether the expression could be given a wider meaning so as to include the order passed by the District Magistrate or Sessions Judge in revision filed against the order of the learned Magistrate.
6. The point came up for consideration before Patna High Court. Kerala High Court. Orissa High Court and even before this Court where the expression 'Order or sentence sought to be revised' occurring in Article 131 of the new Act 1963 has been interpreted. In this connection the authorities interpreting the above expression may be briefly noticed. In Sakhichand v. Ishwar Dayal : AIR1967Pat351 it was held that where the Sessions Judge declines to make a reference under Section 438, Cr.P.C.. in respect of an order passed by the Magistrate under Section 145 of the Code and the aggrieved party files a revision before the High Court, the order to be revised as contemplated by Art 131 of the new Limitation Act. is the order of the Magistrate and not the order of the Sessions refusing to make a reference and. therefore, the application in revision must be filed before the High Court within 90 days from the date of the Magistrate's order, excluding of course the time taken in obtaining the copy of such order. To the similar effect is the view propounded in Sahadev Mandal v. Honga Murmu : AIR1967Pat223 , Kamla Prasad v. State AIR 1867 Pat 270 : 1967 Cri LJ 1176. Narayan v. Kannamma : AIR1969Ker126 and Kesharsingh v. Mst. Dau 1967 Raj LW 499. In all these cases the interpretation of Article 131 of the new Limitation Act was not directly in issue, as in those cases the question before the High Court was as to whether a revision under the Code of Criminal Procedure could directly lie to the High Court without taking recourse to the Court of the District Magistrate or Sessions Judge who had also concurrent jurisdiction to entertain the revision. The decisions in these cases proceeded on various reasons. One of the reasons was that the High Court is empowered to entertain the revision directly as the High Court has concurrent jurisdiction in the matter. The other reason which commended itself to the learned Judges to decide this point was that in view of the provisions contained in Article 131 of the new Limitation Act. there was a risk to approach the District Magistrate or the Sessions Judge as by the time when the revision is disposed of by the inferior revisional authority, the period of limitation prescribed for moving the High Court may run out and the party may be deprived of the remedy on account of the bar of limitation. Before Beri J. (as he then was) now the Chief Justice), the point as to the interpretation of Article 131 of the new Limitation Act did not directly arise. His Lordship was only concerned to deal with a point as to whether the revision under the Code of Criminal Procedure would directly lie to the High Court without first taking recourse to the inferior revisional authority which had concurrent jurisdiction. While dealing with such a case Beri J. was in broad agreement with the view taken by Patna and Kerala High Courts. But in the concluding paragraph of his judgment he has observed:
There being no power under Section 439. Cr.P.C., preventing a High Court the direct entertainment of an application for revision. I Would not insist in a case like the one before me the party approaching the Court of the Sessions Judge or the District Magistrate.
It was in a Particular situation and also in order to advance the remedy that Beri J. was inclined to entertain the revision directly to the High Court without insisting that a revision petitioner should have first approached to the Sessions Judge. Although the observations have been made as to the meaning to be put on the expression 'Order sought to be revised' but as the point was not directly in issue before Beri J. and it appears that the overall view of law having not been presented before His Lordship, the observations will be deemed to be rather obiter in nature Some of the important principles of law bearing on the point do not appear to have been brought to the notice of Beri J. which I shall presently advert.
7. It cannot be overlooked that the District Magistrate, the Sessions Judge and the High Court have been conferred with concurrent jurisdiction. Where it is a case of concurrent jurisdiction, a party should ordinarily apply to the inferior Court in the first instance as it will make meaningful the provision of concurrent jurisdiction. There is no doubt that a party is entitled to apply to the High Court even as he is entitled to do so before the learned Sessions Judge, It has. however, to be remembered that whenever concurrent jurisdiction is vested by the statute simultaneously in two Courts, one superior to the other it shall be not only appropriate tout ordinarily incumbent on the party to approach the inferior Court first. Indeed since long such a practice had grown up in various High Courts before the promulgation of the new Limitation Act. The reasons for this are not far to seek. Firstly, if a party required to go to the inferior Court in the first instance, the superior Court has the advantage of the opinion of the inferior Court when the occasion arises for the exercise by it of its jurisdiction in the matter. Secondly, it ensures against the superior Court being flooded with cases which can be more appropriately disposed of by the inferior Court. These merits of first approaching the revisional authority have been recognised in Patna, Kerala and Rajasthan cases referred to above, but the learned Judges who decided the cases presumably felt difficult to adhere to it on account of the meaning which they preferred to give to the expression 'order sought to be revised' occurring in Article 131 of the new Limitation Act, In view of the object which the Legislature sought to achieve by conferring concurrent jurisdiction could it be said that by merely enacting Article 131 of the new Limitation Act. the Legislature intended in a way to render the provisions relating to concurrent jurisdiction practically meaningless and to deprive the advantages listed above by simply inserting Article 131 of the new Limitation Act. To my mind it could not have been the intention of the Legislature. It is true that a grammatical meaning has to be given to the words used in statute if the meaning is plain or unambiguous irrespective of the fact that they may cause inconvenience or hardship. But if the two views are possible and one which is more consonant with rationality and also that renders the provisions enacted by Legislature to be more meaningful and practicable, then in that case the latter view is to be adopted and it shall be open to this Court even to make a departure from pure grammatical meaning of the expression. Now it is obvious that it is open to the party to approach the District Magistrate or the Sessions Judge by way of revision against the order of the trial Magistrate or Judge If a party actually avails the right given by the Legislature and invokes the jurisdiction of the inferior authority, then what will be the legal effect of the order of the inferior revisional authority on the order of the original Court. The Legislature has permitted such a course and the party has a right to go and invoke the jurisdiction of the inferior revisional authority' which has got a statutory jurisdiction to decide the revision application. In this connection we have to remember the principle of merger or the replacement of the order by the order of the revisional authority. This principle has been recognised by even the Supreme Court. A few cases in this regard are worthy of mention to bring home the point which I seek to establish. The principle of replacement of the decision of the trial Court by that of the revisional authority has been recognised in U.J.S. Chopra v. State of Bombay : 1955CriLJ1410 . That was a case where the accused was convicted under a particular offence. The accused felt aggrieved against the order of his conviction and preferred revision to the High Court but the same was dismissed after hearing the accused. A revision was filed by the State for enhancement of the sentence and the accused sought to challenge the order of conviction in revision for enhancement of the sentence. The Supreme Court held that it was no more open to the accused to challenge his conviction in a revision for enhancement of the sentence as his revision against the order of conviction having been heard and rejected. The order of rejection would tantamount to replacement of the order of the conviction by the lower Court and it was the High Court's order which would be taken to be the replaced order. In this connection, it will be useful to extract some of the relevant observations of the Supreme Court in the said case-
If the accused had an opportunity of showing cause against his conviction either in an appeal or a criminal revision application filed by him or on his behalf and the conviction was confirmed on a full hearing in the presence of both the parties after the issue of the requisite notice by the Court to the opposite party the judgment of the High Court would replace that of the lower Court which judgment could not be reviewed or revised by the High Court at all in exercise of its revisional powers under Section 439(1).
If, however, an order dismissing the petition of appeal or criminal revision application or even a reference made by the lower Court was made dismissing the same summarily or 'in limine' without issuing notice to the opposite party or the parties concerned it would tantamount to the High Court not entertaining any of these proceedings on the ground that no 'prima facie' case has been made out for the interference of the Court.
If such a 'prima facie' case has been made out. the High Court would admit the appeal or the revision application or entertain the reference and hear the matter fully in the presence of both the parties, ultimately pronouncing its judgment which would take the place of the judgment of the lower Court which would certainly not be subject to the exercise of revisional jurisdiction under Sec 439(1) of the Criminal P. C.
From the above extracted passage it will appear that even if order of the revisional authority may be of an affirming nature or otherwise, it has the effect of replacing the order of the original Court. There is yet another important principle, viz. the principle of merger recognised by the Supreme Court which also renders the order of the trial Court merged into the order of the superior Court or tribunal if the same is challenged by way of appeal or revision or even by review. If any authority is needed for this proposition it will suffice to refer to Collector of Customs v. East India Commercial Co. : 2SCR563 . In this case it has been held that where an appeal is made the appellate authority can do one of the things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, (hi) it may merely dismiss the appeal and thus confirm the order without modification. In any of the three cases after the appellate authority has disposed the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it. Order of confirmation is quite as efficacious an operative order as an appellate order of reversal or modification. The principle, namely, that the appellate order is operative order after the appeal is disposed of is the basis of the rule that the order of the lower Court merges into the order of the appellate Court. On the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the revisional authority whatsoever its decision may be. whether of reversal or modification or mere confirmation. Madangopal v. Secy. to Govt. of Orissa : AIR1962SC1513 . related to an order of the Central Government in revision under Mineral Concession Rules, 1949. and it was held that when the Central Government rejected the review petition against the order of the State Government under the Mineral Concession Rules, it was in effect rejected the application of the appellant of that case for grant of mineral lease to him. The question of the merger of the original order with the appellate order was also considered in that case. Though it was pointed out that in view of Rule 60 of the Mineral Concession Rules that it is the Central Government's order in review which is the effective and final order. The principle of merger in view of the statutory provisions relating to concurrent revisional jurisdiction, in my opinion equally applies in a case in respect of an order passed in revision. In Board of Muslim Wakf, Rajasthan v. Mohammed Ayub 1957 Raj LW 548. Jagatnarain J. (as he then was) had occasion to consider the doctrine of merger in that case. That case arose out of a suit for permanent injunction at the instance of the plaintiff. A temporary injunction was granted against defendants under O. 39, Rr. 1 and 2. Civil P. C., by the trial Court against winch the defendants preferred appeal. That appeal was heard by the learned District Judge, who decided it by his order dated 8-1-1965. and maintained the order of temporary injunction but modified the terms which had been imposed by the trial Court in favour of the defendants. The defendants came in revision before this Court against the appellate order of the District Judge which was dismissed summarily on 29-1-1965. Thereafter the defendant filed a review application before the learned District Judge on 2-2-1965, praying for the review of the original order dated 8-1-1965. This review application was dismissed on the ground that the order of the learned District Judge dated 8-1-1965 having merged in the order of the High Court dated 29-1-1965 dismissing the revision application which had been preferred against that order, there was nothing to be reviewed by the District Judge as the order has merged into the order dismissing the revision petition. The matter was taken to High Court. Before Jagat Narain J (as he then was) it was contended that the scope of a revision application under Section 115, Civil P. C.. is very narrow and the dismissal of a revision application did not amount to the affirmance of the decree or order of the Court below as the case where an appeal against the decree or order is dismissed and there is no merger of the decree or order of the lower Court in the order of the High Court dismissing a revision application, The contention was repelled and the learned Judge proceeded to observed.
The scope of a second appeal is defined under Section 100. Civil P. C, Finding of facts arrived at by the first appellate Court cannot be challenged in the second appeal. Despite this all the High Courts are of opinion that when a second appeal is dismissed summarily under Order 41, Rule 11. Civil P. C., there is merger of the order of the lower Court. It ceases to exist and the Court is no longer to review it. 'The same principle would apply where a revision application against a decree is dismissed summarily, for as was observed by their Lordships of the Privy Council in Nagendra Dev v. Suresh Chandra De any application by a party to a superior Court is an appeal within the ordinary acceptance of the term. Merely on the ground that the scope of revision application is narrower than the scope of appeal it cannot be held that there is no merger of the order of the lower Court in the order of High Court dismissing a revision application.
It is true that this case relates to a matter of civil nature. But that hardly makes any difference as the decision is based on the legal doctrine of merger which can be equally made applicable to the orders of the revisional Court passed in exercise of its criminal jurisdiction. If the principle of replacement and merger are taken into account there could be hardly any occasion for making the provisions of concurrent jurisdiction practically meaningless. Indeed this interpretation appears to be more rational and meaningful in the background of various provisions of law and the settled judicial practice of invoking the jurisdiction of the lower Court which I have earlier adverted.
8. The matter could be viewed from another angle. Under Sections 436 and 437. Criminal P. C.. the District Magistrate and the Sessions Judge are competent to pass even the final orders in the situations referred to therein. Could it be the intention of the Legislature that even in such cases the party in order to avoid the risk of the limitation being run out should directly come to the High Court because one cannot ignore the fact that it is almost not possible for the District Magistrate or the Sessions Judge to dispose of the revision application presented before them within a period of 90 days, as the practical experience bears it out. It was suggested that in cases where the inferior revisional authority has power to pass final orders difficulty will hardly arise if the order has been upset as, the order of the revising authority will replace the original court's order. That may be true but what will happen in those cases where the inferior revisional authority has affirmed the order of the lower court in its conclusion although by supplementing or even substituting the reasons of the lower court which were not sustainable in law. Even in such e case could it be said that the order will not replace the original court's order. I am disposed to think that the framers of the Limitation Act while enacting Article 131 could not have intended to upset the basic object and intendment of the benefits of the concurrent jurisdiction conferred upon the inferior authority. So also it could not have been the intention of the Legislature to have done away with the salutary practice well settled and recognised by the judicial Courts for a long time by merely enacting Article 131 of the Limitation Act. In the view which I propose to take, I respectfully disagree with the view propounded in decisions which lay down a contrary rule.
9. As a result of my foregoing discussion I am of the opinion that the expression sought to be revised is wider in its amplitude and includes the order of revisional authority if any and in such cases the limitation shall have to be computed from the date of the order of revisional authority may that be a mere affirming order.
10. Coming to the merits J may straightway observe that the order of both the Courts below are wholly erroneous and cannot be allowed to be maintained. The trial Magistrate has himself observed that it was not possible for him to come to a definite conclusion as to who was in possession of the disputed land at the relevant date. The same finding has been confirmed by the learned Sessions Judge. Both the Courts were of the view that in such circumstances it was correct for the Magistrate to appoint a Receiver till the concerned parties get their title adjudicated by a competent Court. This order is on face of it bad and not in consonance with the provisions of Section 145 read with Section 145 of the Code of Criminal Procedure. A definite procedure has been laid down in cases where the Magistrate is not in a position to come to record a definite finding as to the actual possession of any of the parties to the dispute. In such a situation, a specific provision has been made in Section 146 of the Code of Criminal Procedure. Under that section it has been provided that if the Magistrate is of opinion that none of the parties was then in such possession or is unable to decide as to which of them was in such possession of the subject of dispute, he may attach the subject in dispute and draw up a statement of the facts of the case and forward the record of the proceedings to a Civil Court of competent jurisdiction to decide the question whether any or which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub-section (4) of Section 145. Cr. P. C. and he was to direct parties to appear before the Civil Court on the date fixed by him. Both the Courts below in utter disregard of this specific procedure indicated by the Legislature has chosen to appoint a Receiver of the disputed property and direct the parties to get their title adjudicated by a competent Civil Court. Such an order is in direct contravention of the mandatory procedure laid down under Section 146 of the Code of Criminal Procedure. In this state of law the order of both the Courts below is illegal and deserves to be set aside.
11. In the result, I accept the revision application, set aside the orders of both the Courts below passed in proceeding under Section 145. Cr. P. C. and send the case back to the Sub-Divisional Magistrate, Bhilwara for proceeding according to law in the light of the observations made above.