1. This Rule was issued at the instance of the complainant in connection with an order under Section 522, Criminal P. C. The facts briefly are that the complainant was the owner of a house which was broken into by refugees who took possession of the same committing offences under Sections 143, 448 and 453, Penal Code attended, as has been found by the learned Magistrate, with criminal force, show of force and criminal intimidation. The opposite parties in the present application are two ladies Maya Rani Sen Gupta and Bimala Sanyal. The complainant is one Yusuf Cossim Ariff. The opposite parties along with others were convicted by the learned Magistrate and sentenced to pay fines. The matter came up to this Court in revision after an appeal had been filed. This Court upheld the conviction. The landlord after the conviction of the opposite parties had prayed to the learned Magistrate for restoration of possession by ousting the two opposite parties. There is no question and there can be no question that the learned Magistrate had complete jurisdiction under Section 522 Criminal P. C. to restore the complainant petitioner into possession.
2. It has been urged by Mr. Biswas on behalf of Maya Rani Sen Gupta that the complainant petitioner having gone to the competent authority under Section 3 of West Bengal Act 16 of 1951 arid the competent authority having passed an order for eviction of Maya Rani Sen Gupta when the State Government had provided her with alternative accommodation as mentioned in Section 4 and the matter now having been taken up to the Appellate Tribunal by the complainant petitioner the learned Magistrate had no jurisdiction to pass an order under Section 522 Criminal P. C. As far as the question of jurisdiction is concerned, neither Section 3 nor Section 4 of West Bengal Act 16 of 1951 has purported to interfere with the provisions of any other legislation. The sections are not that these provisions will apply notwithstanding anything contained in any other Act for the time being in force. These only give a limited jurisdiction to a particular authority to pass a particular kind of order and also an appeal against such an order provided assistance is sought by the owner of any land who had been dispossessed by unauthorised occupation. Therefore as far as the question of jurisdiction is concerned the learned Magistrate was fully competent to pass the order. But competence is not the same thing as the question whether the power given should be exercised in a particular case. I will come to this question later on.
3. It appears that the learned Magistrate was asked to stay his hands when he was going to take action under Section 522 Criminal P. C. on the ground that an appeal had been filed. It appears that the learned Magistrate instead of passing an order of restoration subject to any other order or direction by the Appellate Court stayed his hands altogether with the result that the limit of one month's time from the date of conviction laid down in Clause 1 of Section 522, Criminal P. C. expired. The Appellate Court also did not deal with the question of restoration of possession after expiry of one month. Under Clause 3 'an order under this section may be made by any Court of appeal, confirmation, reference or revision'. The Appellate Court found that a revisional application had been filed in this Court. The question now arises whether this Court has got to pass an order within one month. It may be pointed out that in order to obviate the legal difficulties the case is being heard within one month, of the order finally upholding the conviction in revision but the point requires elucidation. A previous decision of this Court was that the time of one month did not apply to appeal or revision or reference or confirmation. It seems that Lodge J. in a decision --'Abdul Mannan v. Taiyab Ali' : AIR1947Cal390 was of the opinion that all the other Courts were bound by the time limit fixed in the case of a Magistrate.
As a matter of history it may be pointed out that this time limit of one month was first imposed by the amending Act of 1923, and inserted in Clause (1) of the section. The power of the appellate, revisional and other higher Courts to pass the order had been there from the very first in the Code of Criminal Procedure. It appears to me that Lodge J. did not consider the distinction between conferring of a power and the time limit within which the power is to be exercised. Clause 3 merely confers the power on the appellate and other higher Courts to pass an order of restoration, but the time limit which had been fixed by the amending Act subsequently and Inserted in Clause (1) was not extended to the case of the appellate and other higher courts as the power Itself is conferred under Clause 3 without any restriction as to the time within which such power is to be exercised by these higher Courts. Indeed the power would be meaningless in many cases because the limit of one month fixed is one month from the time of conviction. Now hearing of an appeal in the majority of cases begins after more than one month from the time of conviction. Therefore the natural result of reading in Clause 3 the limitation which is only to be found in Clause 1 will be to make Clause 3 almost an unusable clause. For these reasons I am not in agreement with the decision of Lodge J. above referred to and I would rather follow the previous decision of this Court which applied the time limit only to the case of a Magistrate and not in the case of appellate and other higher courts. Clause 3, in my opinion, is not subject to the restriction of time mentioned in Clause 1. The two clauses must be read separately.
4. It has been pointed out by Mr. Biswas that the complainant himself had gone under Section 3 of West Bengal Act 16 of 1951 for redress and action had been taken by that Court as far as Maya Rani Sen Gupta is concerned and the matter is now pending in an appeal filed by the complainant as owner. The question, therefore, arises whether the discretion given under Section 522 should be exercised in the present case and if exercised in what manner should it be exercised. Section 522 clearly lays down that the order of restoration 'may be made' if the Court so thinks fit. It is not an order which it is automatically bound in every case to pass. In the present case there would be likelihood of conflict of authority and decision if the discretion is not exercised in such a way that the conflict is avoided. Under Section 4 the competent authority orders eviction when the State Government has provided alternative accommodation to the person. The Magistrate's order under Section 522, Criminal P. C. is without any such limitation.
5. Therefore in my opinion, the best course in the present case will be to order that the complainant is to be restored to possession as far as Bimala Sanyal is concerned who has not contested the Rule and he is to be restored to possession as far as Maya Rani Sen Gupta is concerned after the appeal under Section 6 has been disposed of and the appellate order given effect to. If under the appellate order Maya Rani Sen Gupta is directed to be provided with an alternative accommodation then the restoration of possession in her case will be after the State Government has provided her with alternative accommodation. If, on the other hand, the appellate order sets aside the order of the competent authority, then the learned Magistrate under Section 522 will restore the complainant to possession after the appellate Court order.
6. This Rule is thus disposed of.