JOBAN DASS Vs. SHIBU

JUDGEMENT

(1.) This is a reference, made by the learned Sessions Judge, Mahasu, Sirmur, Bilaspur and Kinnaur Sessions Division. The facts, which have led to the making of the reference, are as follows: The petitioners were convicted and sentenced, under Section 447, I. P. C., on the 29th March, 1963, by the learned Magistrate 1st Class Theog, On a complaint, filed by Shibu, respondent, alleging, that he was the owner and in possession, of 1 Bigha and 9 Biswas of land, and that the petitioners had, without any right, and by force, encroached upon 3 biswas, out of the aforesaid land, by constructing a stone wall. Against their conviction and sentence, the petitioners filed an appeal, which was subsequently treated as a revision-petition, in the Court of the Sessions Judge. The learned Sessions Judge made a reference to this Court that the conviction and sentence of the petitioners be quashed. But this Court did not accept the reference, and by its order, dated the 4th September, 1963, upheld the conviction and sentence of the petitioners. On the 4th October, 1963, Shibu, respondent, made an application, under Section 522, Cri. P. C., to the Magistrate First Class, Theog, requesting that possession of 3 biswas of land, forcibly and illegally encroached upon, by the petitioners, be restored to him. On the 16th October, 1963, the learned Magistrate ordered the restoration of possession. In pursuance of this order, a warrant of possession was issued. The petitioners went up in revision against the order of the learned Magistrate. On their request, the operation of the order of restoration of possession was suspended. Shibu, respondent, also, made an application to the learned Sesions Judge. In this application, the learned Sessions Judge was requested to pass an order of restoration of possession, under Section 522(3), Cri. P. C. in case, the order passed, by the learned Magistrate, was held to be bad, on the technical ground, that it was passed, beyond one month, from the date of conviction.

(2.) The learned Sessions Judge has made a reference to this Court, recommending that the order for restoration of possession, passed by the Magistrte, be quashed as it is illegal, having been passed beyond one month from the date of conviction. The learned Sessions Judge has also forwarded the application, put in by Shibu, respondent, to this Court, for orders.

(3.) The question, which requires decision, in the reference, is whether the order of the learned Magistrate, for restoration of possession, passed under Sub-section (i) of Section 522, Cri. P. C., is illegal, because it was made, beyond onet month from the date of conviction. A plain reading of that sub-section makes it abundantly clear, that a Magistrate is competent to pass an order for restoration of possession at the time of conviction or within one month from the date of conviction. The subsection does not authorize a Magistrate to pass such an order, beyond one month from the date of conviction. In the instant case, not only the order of restoration of possession was passed beyond one month from the date of conviction, but the application, itself, for passing the order, was filed after that period. The learned Magistrate had no authority to pass the order, for restoration of possession. His order is illegal and liable to be quashed.