CHANAN SINGH Vs. HARI SINGH

JUDGEMENT

(1.) THIS application in revision is directed against an order passed by the learned Sessions Judge of Kumaun, dated 5th October, 1968, and arises out of the following circumstances:

(2.) ON the basis of the earlier decision in 1964 by the learned Sub Divisional Magistrate, proceedings Under Section 145. Criminal P. C. were decided in favour of Chanan Singh and a revision preferred by Hari Singh and another was also dismissed and it was conceded that they had no objection to Chanan Singh taking possession over plots Nos. 2, 4/2 (37 Bighas) and 15/1. In revision, however, it was contended on behalf of Hari Singh and another that the entire plot No. 4, which included plot No. 4/1 (90 Bighas) had been attached and the plot No. 4/1 did not belong to Chanan Singh, but belonged to Hari Singh and another. The revision preferred by Hari Singh and another was Criminal Revision No. 9 of 1965 and was decided by the learned Additional Sessions Judge. Kumaun, by his order dated 3rd December, 1966. Although the learned Additional Judge rejected the revision filed by Hari Singh and another, but in his order disposing of the revision, he came to the conclusion that a confusion had taken place because the land which had been attached in proceedings Under Section 145, Criminal P. C. had been attached by reference to the boundaries given by Chanan Singh and, in fact plot No. 4/1 (90 Bighas) was never intended to be attached and was never meant to be given to Chanan Singh. The learned Additional Sessions Judge, therefore, directed that plots Nos. 2 (30 Bighas 10 Biswas), 4/2 (37 Bighas) and 15/1 should be given to opposite party Chanan Singh. Thereafter, Hari Singh and Kartar Singh filed an application before the learned Sub Divisional Magistrate Under Section 517, Criminal P. C. praying they may be given the price of the produce of sugarcane crop of plot No. 4/1 (90 Bighas) which was held in deposit by the Court. The learned Sub Divisional Magistrate by his order dated 9th July, 1968, dismissed the application of Hari Singh and Kartar Singh Under Section 517, Criminal P. C. and held that the fate of new plot No. 21-A already stands decided and there is nothing for me to decide in this case. Against the order of the learned Sub Divisional Magistrate dated 9th July, 1968, Hari Singh and Kartar Singh preferred an appeal which was heard by the learned Sessions Judge of Kumaun and before the learned Judge, a preliminary objection was raised on behalf of Chanan Singh that the appeal was not maintainable because Under Section 520, Criminal P. C. , a revision should have been filed since the original order in the case Under Section 145, Criminal P. C. was only revisable and not appealable. It was further urged by Chanan Singh that in view of the provisions contained in Section 438, Criminal P. C. , such a revision could not be decided by the learned Sessions Judge but a reference should be made to the High Court. The learned Sessions Judge of Kumaun. it seems, converted the appeal into a petition. Although no written order is on the Order Sheet, but the order passed by the learned Sessions Judge shows that he entertained the application filed by Hari Singh and Kartar Singh as miscellaneous proceedings and not as an appeal, revision or reference.

(3.) THE learned Sessions Judge, after quoting Section 520, Criminal P. C. , held that a casual reading of that section indicates that the Court which is to be approached for alteration or modification of an order Under Section 517, Criminal P. C. has absolute powers to make such modifications or alterations and has further the powers to make such other order that may be just and no reference has to be made to the High Court. The learned Sessions Judge further observed as follows: