SAKHICHAND SAHU Vs. ISHWAR DAYAL SAHU

JUDGEMENT

(1.) Both these applications, which are directed against orders under Section 145 of the Criminal Procedure Code, were heard together, as common questions of law arise therein. These questions appear in the following observations of a learned Single Judge of this Court white referring Criminal Revision No. 1343 to a Division Bench:

(2.) In the aforesaid unreported decision in Cri. Rev No. 1018 of 1965 (Pat.) decided by myself and Anwar Ahmad, J. on the 13th September, 1966 (AIR 1967 Pat. 223) the petitioners had come directly to this Court, without following the usual practice of going to the Sessions Judge in the first instance, and the question then raised was whether their application in revision could be entertained, particularly in view of a decision of Mahapatra J. in Abdul Sayeed Khan v. Jagarnath Nonia, 1965 B.L.J.R. 427. In that case the petitioners had made an application in the first instance before the court of Sessions before the new Limitation Act commenced its operation. That application had been dismissed by the Additional Sessions Judge on the 30th April, 1964, and, thus more than ninety days had expired from the 26th September, 1963, the date of the order of the Subdivisional Magistrate in the proceeding under Section 145 of the Code of Criminal Procedure, out of which the application in revision arose. Mahapatra, J. found that the impugned order of the Magistrate was neither legal nor correct, and therefore, it could not be sustained. But it was contended for the opposite party that the application in revision to this court was not maintainable, because more than ninety days, which is the period prescribed by Article 131 of the new Limitation Act for making an application in revision under the the Code of Criminal Procedure, had expired since the date of the Magistrate's order. His Lordship was of the view that this period of ninety days should be calculated with effect from the date of the Magistrate's order, but allowed the application with the following observations :

(3.) In the unreported decision dated the 13th Sep. 1966. I agreed wife Mahapatra and held that the period of ninety days is to he counted from the date of the Magistrate's order and. even though the practice of this court is not ordinarily, to entertain any application in revision, unless a party went in the first instance to the Court of Session, in view of the statutory period of limitation prescribed by the new Limitation Act, a petitioner is not bound to approach the Court of Session before coming to this Court. It was therefore, held that the application made directly to this court was maintainable, and on merits the application was allowed. It will, therefore, be noticed that in this case the question as to what would happen, if a party had gone in the first instance to the Sessions Judge, according Jo the long-standing practice of this Court, was not required to be considered, nor it was considered, as has been observed in the second paragraph of the order of reference quoted earlier. It will be noticed feat in the first paragraph of this order it has been mentioned that the observation in the unreported decision feat the period of limitation could not be counted from the date of the order of the Session Judge refusing to make a reference to the High Court was obiter, because in that case this point was not required to be decided. In paragraph 5 of the unreported decision, Mr. Sanyal, who appeared for the opposite party, in order to meet the argument of Mr. Ghosal, learned advocate for the petitioners, submitted that the difficulty pointed out by Mr. Ghosal would not arise, because the period of limitation is to be counted from the date of the order of the Sessions Judge refusing to make a reference to this Court. On account of this argument of Mr. Sanyal, we had to interpret the meaning of the words "the date of the order sought to be revised" from which ninety days was to be counted under Article 131 of the new Limitation Act; it was held that this period is to be counted from the date of Magistrate's order under Section 145 and not from the date of the order of the court of session. We, therefore, asked Mr. Jaleshwar Prasad how the observation that the period of limitation could not be counted from the date of the order of the Sessions Judge could be said to be obiter; but in answer to this question he merely submitted that in the in reported decision it was not decided as to what would happen, if a litigant had actually gone first to the Sessions Judge.