TEJURAM JAIN Vs. DIWAN CHAND CHAWALA

JUDGEMENT

(1.) THIS application under Section 401 of the Criminal P. C. is directed against the appellate order of the learned Sessions Judge of Bolangir refusing to entertain an appeal purporting to be under Section 454 of the Criminal P. C. 1973 by holding that no appeal law and refusing to interfere with the order of the learned Magistrate directing possession of a motor truck to be made over to the opposite party.

(2.) G .R. Case No. 158 of 1973 was instituted upon information given by the petitioner against the opposite party under Section 406. I. P. C and the dispute was with reference to a motor truck bearing registration No. ORR 99. P. W. 3 was its admitted owner. Both the petitioner as also the opposite party claimed title to the truck as purchasers. The learned Magistrate while disposing of the case released the vehicle in favour of the opposite party. Dispute arose as to the order of release, An appeal was carried by the petitioner to the learned Sessions Judge. It may be indicated that the First Information Report was dt. 15 -4 -1973. Cognizance was taken on 1 -6 -1973 and the learned trying Magistrate acquitted the opposite party by order dt. 10 -9 -1976 when he also made the consequential order releasing the vehicle in favour of the opposite party. On the footing that the new Cri. P. C. came into force with effect from 1 -4 -1974 which admittedly conferred an independent right of appeal in regard to seized property and its disposal, the anneal was carried under Section 454, Cr. P. C. to the learned Sessions Judge challenging that part of the order by which the vehicle was released in favour of the accused of the criminal case. The question of maintainability of the appeal was canvassed at length before the court of appeal. It was contended that in view of the clear provisions of Section 483(1) of the Code, to a proceeding of this type the new Code did not apply and the original trial as also its off -shoots had to be dealt with as if the new Code had not come into existence. Accordingly, it was canvassed that the right of appeal conferred under Section 454 of the, new Code was not attracted and could not be availed of by the petitioner. On the footing that the old Code applied, the question arose whether Section 520 of the old Code of 1898 admitted of an appeal bereft of the main matter being disputed in appeal. Reliance was placed in support of the contention that no appeal lay on the decisions of the Court reported in : AIR1961Ori121 (Sharfuddin v. Siraiuddinl and : AIR1965Ori199 (Jahara Panigrahi v. Ula Panigrahi). On the other hand, a single Judge decision of this Court in the case of Chandra Sekhar Padhi v. State of Orissa (1971) 37 Cut LT 346 was relied upon in support of the view that even under Section 520 of the old Code there was an independent, right of appeal. The learned Sessions Judge, however, took the view that no appeal lav under Section 520 of the. old Code, and, therefore, the appeal had been dismissed.

(3.) THERE is no dispute at the Bar that the two earlier decisions of this Court in : AIR1961Ori121 and : AIR1965Ori199 clearly took the view that no appeal lay within the compass of Section 520 of the Code of 1898. It is true that reliance had been placed by this Court in reaching the aforesaid conclusion on the ratio of an Allahabad decision, being the case of Talewar Jha v. Mool Chand : AIR1959All96 . The Allahabad High Court in the case of Ram Abhilakh v. State : AIR1961All544 did not agree with the earlier decision of its own Court and took the view that Section 520 of the old Code contained a provision of an independent appeal unconnected with the merit of the Criminal case. When the selfsame question arose for consideration in a subsequent criminal revision before this Court, a learned single Judge in the case of Chandra Sekhar padhi v. State of Orissa (1971) 37 Cut LT 346 took the view that once the foundation of the two judgments of this Court referred to above hud been vacated by the Allahabad High Court itself (with the reversal of the decision in AIR 1959 All 96). the judgments of this Court had lost, force and the learned single Judge was free, while dealing with Chandra Sekhar Padhi's case in (1971) 37 Cut LT 340. to come to his own view. Such a position is not available before a court, of record where one is bound by precedents. In view of the two earlier decisions of this Court, it was not open to a learned single Judge to differ from these authorities and take his own view discarding the binding decisions of this Court and following authorities of different High Courts. The only way out was to have referred the matter to in larger Bench and have the law settled in case the learned single Judge did not agree with the pronounced opinion prevailing in this Court, I fell hesitant to say anything more than what I have because I should also be bound bv the same rule and ordinarily require this matter to be referred to a larger Bench in case I am differing from a previous judgment of this Court. But it is a well known doctrine in law that if the earlier iudgment is contrary to the pronounced view of this Court, it would not be a binding decision and must be taken to be one which would not be having precedent value. Therefore, to say that the earlier single Judge decision in (1971) 37 Cut LT 346 is not to be followed, it is not necessary that the matter must go before a larger Bench in order to make the position free from the shackles of precedents. I humbly indicate that in the face of the decisions in AIR 1901 Orissa 121 : 1961(2) Cri LJ 133 and AIR 1905 Orissa 199: 1905(2) Cri LJ 660 no preference can be shown to the contrary view indicated in (1971) 37 Cut LT 346. It is the obligation of every superior court to lay down the law in a positive way so that confusion does not get into the arena of judicial thought and one of the qudlities of law being that it must be clear and definite, it is equally the duty of the superior courts to see that the decisions stick to these principles, 4A. Accepting this position, I would hold that merely because the single Judge decision of the Allahabad HighCourt which had been relied upon by this Court had been dissented from and overruled in 1 lie Allahabad High Court itself, the foundation of the Orissa decisions had not been, vacated or withdrawn and matter a reconsideration of the matter. A similar argument had been advanced in this Court when the ratio in the case of Taharat Karim v. Malik Abdul Khalig AIR 1938 Pat 529 had not continued acceptance in the Patnn High Court itself though the. rule had been accepted in this Court in a series of cases. With the dissent from the decision in AIR 1938 Pat 529 by a later case of the Patna High Court, in the case of Ucho Singh v. Nageswur Prusad Singh AIR 1902 Pat 478. it was contended that the decisions of this Court adopting the ratio in Taharat Kurim's case in AIR 1933 Pat 520 required review. Repelling this contention, it was pointed out that the decisions of this Court were binding and merely because the principle in AIR 1938 Put 529 had been reversed in that court, it did not follow that the decisions of this Court ceased to be binding or to have precedent value. (See Gangadhar Mohanti v. Priyanath Das (1963) 29 Cut LT 357). I agree that the principle of the' straitiacket formula may not be carried to its logical extremity, but even then it must follow that the decisions of this Court would be binding and would continue to be precedents to be followed until they are reversed in an appropriate way I would accordingly agreeing with the earlier decisions of this Court also agree with the learned Sessions Judge that Section 520 of the old Code did not have a provision for a right of appeal unconnected with the merit of the criminal case itself. Section 484 of the new Code provides : - (1) The Criminal P. C. 1898 (V of 1898) is hereby repealed. (2) Notwithstanding such appeal, - (a) if immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of. continued, held or made, as the case may be, in accordance with the provisions of the Criminal P.C. 1898 (V of 1898) as in force immediately before such commencement, (hereinafter referred to as the old Code), as if this Code had not come into force.XX XX XX XX XX XX The effect of this clause was considered at length by a Division Bench of this Court in the case of Kanika Bewa v. State (1975) 41 Cut LT 798 : 1976 Cri LJ 418 and it was clearly indicated that if the proceeding was a pending one, then the law to be applied would be the old Code and any new right conferred under the Code of 1973 on the pretext of being procedural would not be brought in unless Section 484 of the new Code admitted it. That being the principle, there is no scope for the contention that Section 454 of the new Code would be applicable to this matter because the order' had been pronounced by the learned Magistrate after the new Code had been operative. The Criminal P.C. is one which is procedural in one part and substantive in the other part. Whether it is one way or the other, rules of interpretation are well established that either the old Code should apply or the new Code and then could be in scope for saying that the old Code should apply and to the extent it is necessary and beneficial to the parties, the new Code should also apply. In that view of the matter. I see no substance in the contention of Mrs. padhi that even if the proceeding is a pending one. the new Code was applicable unless they are contradictory or conflicting. I would hold that the new Code had no application and the right of appeal conferred under Section 454. CrP. C. was not attracted. This leads us to the last question for being answered, namely, whether in exercise of revisional jurisdiction, the impugned direction should be interfered with. There is no dispute at the Bar that even if an appeal did not lie, whether it was under Section 520 of the old Code or under Section 454 of the new Code, the revisional jurisdiction of this Court as a superior court to the Magistrate was always there and. therefore, the revision is available. With this conceded position, I have now to find out whether I should interfere with the order for release of the vehicle in favour of the opposite party.