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Mukutdhari Shao Vs. Ajodhya Shao - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1949CriLJ471
AppellantMukutdhari Shao
RespondentAjodhya Shao
Excerpt:
- .....no-justification for holding that where the code expressly grants the sessions judge the power to stay a sentence one should hold that the sessions-judge has also inherent power to stay the carrying out of an order, my view in this regard is strengthened by the fact that in section 485 itself a distinction is made between a sentence and an order, the first part of the section saya that the court may call for the record for the purpose of satisfying itself regarding the correctness, legality or propriety of any finding, sentence or order and thereafter goes on to say that when calling for the record the court may suspend the execution of any sentence. whore the section itself makes a distinction between a sentence and an order, one can only interpret the section as indicating that the.....
Judgment:
ORDER

Sen, J.

1. This motion arises out of proceedings under Section US, Criminal P. G, There was a dispute regarding possession of certain property and proceedings under Section 14S of the said Code were taken resulting in an order passed by the learned Magistrate entertaining these proceedings to the effect that the petitioner was in possession of the property and that he should be given possession thereof. Against this order, the learned Sessions Judge was moved and he called for the records under S, 435, Criminal P. C. While doing so, he directed that the order putting the petitioner in possession should be stayed. Thereupon the pleader appearing before the learned Sessions Judge on the application sent a telegram to the officer in charge of the local thana directing him not to give possession of the property to the first party. No telegram was sent to the Magistrate. The Officer in charge took the telegram to the Magistrate and the learned Magistrate very properly said that as he had received no intima. tion from the Sessions Court and as he had received no telegram even from the pleader appearing for the second party he saw no reason why his order directing possession to be given to the first party should be stayed and he directed posses- sion to ba so given. The Sessions Judge was apprised of this fact and he then passed an order directing that the second party be restored to possession. Against this order this rule has been, obtained.

2. In my opinion the rule must be made absolute. The learned Sessions Judge had no juris, diction whatsoever to stay the order for possession granted in favour of the first party. Still less did he have any jurisdiction later to pa3s an order restoring possession to the second party.

3. The learned Sessions Judge was presumably acting under the provisions of Section 435, Criminal P. C. That section says that when calling: for the record the Sessions Judge may direct, that the execution of any sentence be suspended. Now, an order directing a party to be put in possession in proceedings under 8.145 of the said-Code is not a sentence in any sense of the term.. Therefore it seems quite clear that the Sessions Judge had no jurisdiction to suspend the order for possession. Ha has no power under 8. 435 of the aforesaid Code to stay the execution of & sentence.

The learned advocate for the opposite party argues that although the Sessions Judge under Section 435 is given power only with respect to the stay of the execution of a sentence, nevertheless the Sessions Judge has the power to stay the carrying out of an order, such power being in. herent, I can see no ground for accepting this view. One should not hold that the Court has inherent powers outside the powers granted to the Court by the Code of Criminal Procedure unlesa one finds that the exercises of such inherent powers are absolutely necessary for the purpose of carrying; out the other provisions of the criminal law or for the purpose of doing justice. I can see no-justification for holding that where the Code expressly grants the Sessions Judge the power to stay a sentence one should hold that the Sessions-Judge has also inherent power to stay the carrying out of an order, My view in this regard is strengthened by the fact that in Section 485 itself a distinction is made between a sentence and an order, The first part of the section saya that the Court may call for the record for the purpose of satisfying itself regarding the correctness, legality or propriety of any finding, sentence or order and thereafter goes on to say that when calling for the record the Court may suspend the execution of any sentence. Whore the section itself makes a distinction between a sentence and an order, one can only interpret the section as indicating that the Court can only stay the execu-tion of a sentence and not the carrying out of any order.

4. Next I would point out that the Court is given powers of stay and not powers of restora-tion. The finding of the Court of first inatance is that the petitioner first party was in possession at the relevant time mentioned in Section 145, Ori-minal P. C., and that his possession should be maintained by his being put in possession. Once he has been actually put in possession I cannot see what autherity the Sessions Judge has of directing his eviction and putting some one else in possession in proceedings such as these. The Sessions Judge has no power to decide the ques-tion of possession finally. All the power that he has is to report the matter to this Court stating that the order passed by the Magistrate is wrong. He baa by ordering restoration usurped the power of this Court which is the only Court which can finally determine the matter.

5. Both the orders of the learned Sessions Judge are wrong and I hereby set them aside. The rule is made absolute.


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