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Joban Dass and ors. Vs. Shibu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Case NumberCriminal Ref. No. 2 of 1964
Judge
Reported inAIR1964HP30,1964CriLJ295
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 423, 439, 522 and 522(3); ;Indian Panal Code - Section 447
AppellantJoban Dass and ors.
RespondentShibu
Appellant Advocate T.R. Chandel, Adv.
Respondent Advocate Amar Chand, Adv.
DispositionReference accepted
Cases Referred and Subramania Chetty v. Ganesan Pillai
Excerpt:
- .....were convicted and sentenced, under section 447, i. p. c., on the 29th march, 1963, by the learned magistrate 1st class theog, on a complaint, filed by shibu, respondent, alleging, that he was the owner and in possession, of 1 bigha and 9 biswas of land, and that the petitioners had, without any right, and by force, encroached upon 3 biswas, out of the aforesaid land,by constructing a stone wall. against their conviction and sentence, the petitioners filed an appeal, which was subsequently treated as a revision-petition, in the court of the sessions judge. the learned sessions judge made a reference to this court that the conviction and sentence of the petitioners be quashed. but this court did not accept the reference, and by its order, dated the 4th september, 1963, upheld the.....
Judgment:
ORDER

Om Parkash, J.C.

1. This is a reference, made by the learned Sessions Judge, Mahasu, Sirmur, Bilaspur and Kinnaur Sessions Division. The facts, which have led to the making of the reference, are as follows:

The petitioners were convicted and sentenced, under Section 447, I. P. C., on the 29th March, 1963, by the learned Magistrate 1st Class Theog, On a complaint, filed by Shibu, respondent, alleging, that he was the owner and in possession, of 1 Bigha and 9 Biswas of land, and that the petitioners had, without any right, and by force, encroached upon 3 biswas, out of the aforesaid land,by constructing a stone wall. Against their conviction and sentence, the petitioners filed an appeal, which was subsequently treated as a revision-petition, in the Court of the Sessions Judge. The learned Sessions Judge made a reference to this Court that the conviction and sentence of the petitioners be quashed. But this Court did not accept the reference, and by its order, dated the 4th September, 1963, upheld the conviction and sentence of the petitioners.

On the 4th October, 1963, Shibu, respondent, made an application, under Section 522, Cri. P. C., to the Magistrate First Class, Theog, requesting that possession of 3 biswas of land, forcibly and illegally encroached upon, by the petitioners, be restored to him. On the 16th October, 1963, the learned Magistrate ordered the restoration of posses-sion. In pursuance of this order, a warrant of possession was issued. The petitioners went up in revision against the order of the learned Magistrate. On their request, the operation of the order of restoration of possession was suspended. Shibu, respondent, also, made an application to the learned Sesions Judge. In this application, the learned Sessions Judge was requested to pass an order of restoration of possession, under Section 522(3), Cri. P. C. in case, the order passed, by the learned Magistrate, was held to be bad, on the technical ground, that it was passed, beyond one month, from the date of conviction.

2. The learned Sessions Judge has made a reference to this Court, recommending that the order for restoration of possession, passed by the Magistrte, be quashed as it is illegal, having been passed beyond one month from the date of conviction. The learned Sessions Judge has also forwarded the application, put in by Shibu, respondent, to this Court, for orders.

3. The question, which requires decision, in the reference, is whether the order of the learned Magistrate, for restoration of possession, passed under Sub-section (i) of Section 522, Cri. P. C., is illegal, because it was made, beyond onet month from the date of conviction. A plain reading of that sub-section makes it abundantly clear, that a Magistrate is competent to pass an order for restoration of possession at the time of conviction or within one month from the date of conviction. The sub-section does not authorize a Magistrate to pass such an order, beyond one month from the date of conviction. In the instant case, not only the order of restoration of possession was passed beyond one month from the date of conviction, but the application, itself, for passing the order, was filed after that period. The learned Magistrate had no authority to pass the order, for restoration of possession. His order is illegal and liable to be quashed.

4. Realizing that the order of the learned Magistrate was illegal, the learned counsel for Shibu, respondent, made a request that this Court may, on the basis of the application, filed by Shibu res-pondent, before the learned Sessions Judge, and forwarded to this Court, for orders, pass an order of restoration of possession, in exercise of its powers, under Sub-section (3) of Section 522, Cri. P. C. The request was strenuously opposed by the learned counsel for the petitioners. His contention was that this Court has no jurisdiction, under Sub-section (3), to order restoration of possession, in the present proceedings, as the words 'Court of appeal, confirmation, reference or revision', in that subsection, refer only to a Court, dealing with appeal, revision etc., in the main case, and not to a Court, sitting in revision, against an order of restoration of possession. The contention of the learned counsel for the petitioners does not appear to be sound. There is nothing in Sub-section (3) to indicate that the words 'Court of appeal, confirmation, reference or revision' should be narrowly construed and should be confined only to a Court, hearing appeal, revision etc., in the main case, against conviction or acquittal.

The aforesaid words appear to refer to a Court to which appeal, revision etc, ordinarily lie from the orders of the trial Court and are not limited to a Court, only, hearing appeal or revision from orders, passed in the main trial. It is to be noted that Clause (d) of Sub-section (i) of Section 423, Cri. P. C. confers wide powers on an appellate Court to make any amendment or any consequential or incidental order that may be just or proper. These powers of an appellate Court can be exercised by a revisional Court, also, under Section 439, Cri. P. C. It follows that a Court of appeal or revision, dealing with the main case, has power to order restoration of possession, independently of the provisions of Sub-section (3) of Section 522, Cri. P. C. The provisions of that sub-section would seem unnecessary, if their operation is to be confined to a Court dealing with an appeal or revision, in the main case only.

The object of the legislature, in enacting subsection (3), appears to be to empower a Court of appeal or revision, to order restoration of possession, even when it is not dealing with the main case. For the aforesaid reasons, I am of the view that the words, 'Court of appeal etc,' in subsection (3) of Section 522, Cri. P. C. are not limited to a Court, hearing appeal or revision, in the main case only, and that a Court of revision is competent to pass an order for restoration of possession, while hearing revision against an order of a Magistrate, restoring or refusing to restore possession. There is considerable judicial authority in support of this view. Reference, in this connection, may be made to Rameshwar Singh v. Emperor, AIR 1925 Pat 689, Nihal Singh v. Emperor, AIR 1939 All 662, Savlaram Sadoba v. Dnyaneshwar Vishnu, AIR 1942 Bom 148, Hari Sahu v. Pasori Sahu, AIR 1951 Orissa 30 and Basanta Kumar v. Kenaram, AIR 1953 Cal 393. The head-note in Ramnath Sheona-rayan v. Sonaji Krishnaji, AIR 1948 Nag 250, reads as follows:

'A High Court hearing a revision application not against an order of conviction but against an order restoring or refusing to restore possession under Section 522(1) is a Court of revision within the meaning of S. 522(3), and therefore, has jursdiction to make an order under Section 522(1).'

5. A contrary view, to the effect, that the, words 'Court of appeal etc.,' in Section 522 (3), Cri. P. C., refer to a Court, dealing with original conviction or trial and do not refer to a Court, dealing with a reference, from the order restoring possession, was expressed in Ghazan v. Mt. BhagBhari, AIR 1932 Lah 210, Said Umar v. Abdul Qadir, AIR 1937 Pesh 7 and Subramania Chetty v. Ganesan Pillai, AIR 1950 Mad 665. But the preponderance of judicial opinion, as already noted, is in favour of the view, that a Court, hearing a revision against an order restoring or refusing to restore possession, is a Court of revision within the meaning of Sub-section (3) of Section 522, Cri. P. C. and is competent to pass an order for restoration of possession. This Court has got power, in the present revision, to pass an order for restoration of possession.

6. The next question is, whether this Court should, in the circumstances of the case, exercise its discretionary power, to order restoration of possession, in favour of Shibu, respondent. That question is to be answered in the negative lor two reasons. Firstly, Shibu respondent had made the application for restoration of possession, after an undue delay of more than six months. Secondly, he has, already, instituted a suit, in a Civil Court, to establish his right in the disputed land. The decision of the civil Court, in the suit, will be final. It will not be expedient to pass an order for restoration of possession under Section 522, Cri P. C., when a suit has already been instituted by Shjbu respondent to establish his right in the disputed land.

7. As a result of the above discussion, the reference, made by the learned Sessions Judge, is accepted and the order of the learned Magistrate is set aside. The application, filed by Shibu respondent, before the learned Sessions judge, and forwarded to this Court, will stand dismissed.


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