SAVLARAM SADOBA NAVLE Vs. DNYANESHWAR VISHNU CHINKE

JUDGEMENT

(1.) THIS is an application in revision which, in substance, asks us to make an order for possession under Section 522 of the Criminal Procedure Code. Sub-section (1) of that section provides : Whenever a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation and it appears to the Court that by such force or show of force or criminal intimidation any person has been dispossessed of any immoveable property, the Court may, if it thinks fit, when convicting such person or at any time within one month from the date of the conviction, order the person dispossessed to be restored to the possession of the same.

(2.) SUB-section (3) provides that an order under that section may be made by any Court of appeal, confirmation, reference or revision.

(3.) THE real point which arises is whether we have jurisdiction to make the order under Section 522(3). It may be said on the one hand that the reference in Sub-section (3) of Section 522 to " a Court of appeal or revision " is to a Court hearing an appeal or revision application against the accused's conviction, when, no doubt/ an order could be made under Section 522(3), and that it is illogical on an application to revise an order of the Magistrate refusing possession under Section 522 (1) to hold that the order was perfectly right, but that this Court ought nevertheless to make an order substantially in the terms of the order which the Magistrate had refused. That is the view taken by a Judge of the Peshawar Judicial Commissioner's Court in Said Umar w. Abdulkadir1. But after all legislation is not necessarily founded on logic, and it may be that the legislature intended that whilst a Magistrate must make an order within a limited time, it should be open to a Court of appeal or revision to make an order after that time, which the Magistrate himself could not have made. That is the view adopted by the Patna High Court in Fida Hussain v. Sarfaraz Hussain2 and in Rameshwar Singh v. King-Emperor3- and by the Allahabad High Court in Emperor v. Nihal Singh4. In those cases it was held that, notwithstanding that there was not before the Court any application in appeal or revision against the conviction of the accused, and notwithstanding that the Magistrate had rightly dismissed the application for an order for possession under Section 522(1) because made more than a month after the conviction, and although that order was the only one brought up in revision, still the High Court could under Sub-section (3) of Section 522 make an order for possession in a proper case.