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Sheikh Ahmed Ali Vs. Keenoo Khan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.202
AppellantSheikh Ahmed Ali
RespondentKeenoo Khan
Cases ReferredRodger v. Comptoir
Excerpt:
criminal procedure code ( act v of 1898) sections 517 and 522 - forcible dispossession of complainant--penal code (act xlv of 1860) section 323, conviction of accused under high court's power to interfere with order under, 522 cr. p. code--revision. - .....no power to interfere in revision with an order passed by a magistrate under section 522 of the code of criminal procedure. it is admitted that such a power is expressly given with reference to an order under section 517, but it is argued that such a power is not expressly given with reference to an order passed under section 522 of the criminal procedure code, and this court cannot interfere with an order under the latter section. we find, however, that this question was before the allahabad high court in the case of mania v. bhagwanti 27 a. 415, and the learned judges distinctly held that under the provisions of clause (d) of section 423 of the criminal procedure code, this court, as a court of revision, has full power to interfere with an order under section 522 of the criminal.....
Judgment:

1. After hearing the learned Counsel on both sides, we are of opinion, that the Rule must be made absolute and the orders passed by the Deputy Magistrate, on the 4th May and 6th June 1908, directing delivery of the bungalow and its contents to 1 he opposite party, must be set aside and in lieu thereof an order passed that the bungalow and its contents be made over to the petitioner.

2. It is clear from the facts stated in the petition that the petitioner's case, in which he charged the opposite party with having forcibly dispossessed him of the bungalow and its contents, was found to be true, and the opposite party was convicted under Section 323 of the Indian Penal Code of having forcibly dispossessed him of both. In those circumstances, it was the duty of the Magistrate to pass orders, under Sections 522 and 517 of the Criminal Procedure Code, directing restoration to the petitioner of the bungalow and its contents, from which, it was found, he had been forcibly dispossessed.

3. It has, however, been contended on behalf of the opposite party that this Court has no power to interfere in revision with an order passed by a Magistrate under Section 522 of the Code of Criminal Procedure. It is admitted that such a power is expressly given with reference to an order under Section 517, but it is argued that such a power is not expressly given with reference to an order passed under Section 522 of the Criminal Procedure Code, and this Court cannot interfere with an order under the latter section. We find, however, that this question was before the Allahabad High Court in the case of Mania v. Bhagwanti 27 A. 415, and the learned Judges distinctly held that under the provisions of Clause (d) of Section 423 of the Criminal Procedure Code, this Court, as a Court of Revision, has full power to interfere with an order under Section 522 of the Criminal Procedure Code. The learned Judges in that case referred to the case in this Court of Ram Chandra Mistry v. Nobin Mirdha 25 C. 630, as apparently laying down a different view. The question was not, however, before this Court in that case, and the remark made by the learned Judges of this Court in their judgment, in which they deal with the argument advanced on the basis of the principles laid down by the Privy Council in Rodger v. Comptoir D'Escompte de Paris L.R. 3 P.C. 465, 476, that it is the duty of all Courts to take care that the act of the Court does no injury to any of the suitors, seem to indicate that, if a fit case for their interference had been made out, they would not have hesitated to enforce the principle. We agree with the view taken by the Judges of the Allahabad High Court, and hold that the objection taken cannot be sustained, and that this Court has power to interfere in revision with an order passed by a Magistrate under Section 822 of the Criminal Procedure Code.

4. We, therefore, make the Rule absolute, set aside the orders of the Deputy Magistrate, dated the 4th May and 6th June, and in lieu thereof direct that the bungalow and its contents be made over to the petitioner.


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