KUNCHALA VENKATESVVARLU Vs. CHEMBETI VENKAVYA AND STATE

JUDGEMENT

(1.) This revision case gives rise to an interesting question of law as to the scope and interpretation of the provisions of Sec. 522 of the Criminal Procedure Code.

(2.) There is no dispute with regard to the facts which lie in a short compass. One Chembeti Venkayya preferred a private complaint on 23-3-1965 before the 3rd Additional Munsif Magistrate Guntur alleging that on 10-1-1965 at about 5 P.M. the petitioners and seven others have committed rioting, house-trespass and forcible dispossession of house bearing door No. 847 old and 1040 new in the Mangalagiri Panchayat, Guntur Discrict which had been taken delivery of by him wi h the help of the Police on 9-1-1965 while the Police were investigating into the petition sent by him to The Superintendent of Police. Guntur on 12-1-1965, and the same las pending enquiry as C. C. No. 106/65. The Police Sub Inspector Mangalagiri filed a charge sheet against the petitioners and seven others under Sections 448, 457 and 341. P. C. before the judicial Second Class Magistrate, Mangalagiri in C, C, No. 792/65, who, by his order dated 1-1-1966, acquitted the accused holding that the house in respect of which the complainant had obtained a decree in civil court was different from the one in respect of whicn the house- trespass is alleged to have been committed by the accused on 10-1-1965 Without even considering the plea of autrefois acquit raised by the accused-nd without even marking the certified copy of the judgment in C. C. No. 792/65 of the Judicial Second Class Magistrate, Mangalagui filed on 6-2-1967, the 3rd Additional Munsif Magistrate, Gun.ur framed a charge against the petitioners under section 448 I P C on 27-2-1967 and discharged the other five accused Subsequently his successor, on 10-7-1967, convicted the petitioners under Section 448 I P C, and sentenced them to pay a fine of Rs. 200/- each and oasstd an order on 2-8-1967 in Crl, M. P. No. 1189/67 under Section 522 (l) Cr. P. C. directing the petitioners to restore possession of the house to the complainant and issued a fresh warrant against on 1-9-1967. In the meanwhile, the appeal preferred by the petitioners to the Sessions Court, Guntur was allowed setting aside the convictirn and sentence awarded by the 3rd additional Munsif Magistrate, Guntur on 21-11-67 The order of the Magistrate under Section 522 (1) Cr. P. C. was given effect to at abont 4. 30 P. M. on 10-1-1968 by the Sub-Inspector of Police, Mingalagiri by breaking open the lock of the house with the assistance of the tohce in the absence of the complainant or his men, The Criminal M. P. No, 804/67 filed by the Petitioners under Section 522 (3) Cr. P. C. to set aside the order of the Magistrate under Section 522 (1) Cr. P. C was dismissed by the Session Judge at tba time of allowing the appeal on the ground that he has no jurisdiction. Aggrieved by that order, the petitioners have filed this revision petition questioning the validity of the same.

(3.) Mr. T. V. Sarma, for the accused-petitioners, contends that the Sessions Judge erred in holding that he has no jurisdiction to set aside the order passed by the Magistrate under Section 522 (1) Cr. P. C. and in any event, the impugned order is unsustainable when once the accused's appeal has been allowed. Mr. Rajabhushana Rao for the complainant, contends contra and urges that the order of the Court below is correct and in any event, the order of the Magistrate under Section 522 (1) Cr. P. C. is an independent one and is not consequential depending upon the result of the appeal.