CHANAN SINGH Vs. HARI SINGH AND ANOTHER

JUDGEMENT

(1.) This application in revision is directed against an order passed by the learned Sessions Judge of Kumaun, dated 5th Oct., 1968, and arises out of the following circumstances:- There had been on two previous occasions proceedings under Sec. 145, Criminal Procedure Code between the parties in the court of the learned Sub Divisional Magistrate, Tarai, Kumaun. The first proceedings under Sec. 145, Criminal Procedure Code were in respect of the same land which is in dispute in the present revision and the number of that criminal case was 11/2 of 1962. In those proceedings, Chanan Singh was given possession over plot Nos. 2 (30 Bighas 10 Biswas), 4 (37 Bighas) and plot No. 15/1 (5 Bighas). The total area of the three plots of which possession was given to Chanan Singh by the learned Sub Divisional Magistrate comes to 72 Bighas 10 Biswas land of the three plots on 30th April, 1964. Thereafter, another proceeding under Sec. 145, Criminal Procedure Code took place between the parties and by an order passed on 24th March, 1965 the learned Sub Divisional Magistrate, Tarai, Kumaun, held that Chanan Singh was entitled to possession over plots Nos. 2, 4, 15/1.

(2.) On the basis of the earlier decision in 1964 by the learned Sub Divisional Magistrate, proceedings under Sec. 145, Criminal Procedure Code 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 Dec., 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 Sec. 145, Criminal Procedure Code 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 Sec. 517, Criminal Procedure Code 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 Sec. 517, Criminal Procedure Code 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 Sec. 520, Criminal Procedure Code, a revision should have been filed since the original order in the case under Sec. 145, Criminal Procedure Code was only revisable and not appealable. It was further urged by Chanan Singh that in view of the provisions contained in Sec. 438, Criminal Procedure Code, 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 Sec. 520, Criminal Procedure Code, held that a casual reading of that Sec. indicates that the Court which is to be approached for alteration or modification of an order under Sec. 517, Criminal Procedure Code 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:-