HAZARIMAL Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge, Ajmer-Merwara, recommending that an order Under Section 522, Criminal P. C. be passed in favour of a complainant. Hazari Mai filed a complaint against four persons under Section 447, Penal Code, with the following allegations. On 30th December 1948 the four accused came armed with deadly weapons, threatened to beat Hazari Mai complainant, and took foroible pos-session of a plot of land belonging to him by demolishing his Bhatti and Math, which stood thereon. The complaint ended in a conviction. Under Section 447, Penal Code. The case wag decided on SOtb May 1949, On 22nd June 1949, the complainant filed an application to the trial Court Under Section 522, Criminal P. C. , praying that possession of the property be restored to him. Thif application Under Section 523, Criminal P. C. was dismissed by the learned Magistrate on Acth August 1949 on the ground that he could not deliver possession more than one month after the date of conviction. Against that order dated 20th August 1949 passed by the trial Court a revision application was filed by Hazari Mai complainant in the Court of the learned Sessions Judge. The learned Sessions Judge has now made this reference recommending that an order should be passed in Hazari Mal'a favour Under Section 522, Criminal P. C.

(2.) THE reference has been opposed by the learned Counsel for the accused. He relies upon subs. (3) of Section 522. Sub-section (3) reads thus : "an order under this section may be made by any Court of appeal, confirmation reference or revision. " It was urged that the learned Session Judge was neither a Court of reference nor a Court of revision. So the recommendation made by the learned Sessions Judge is invalid.

(3.) IN bis order of reference the learned Sessions Judge has relied upon Malkhan Singh V. Emperor A. I. R. (32) 1945 ALL. 326 : 47 Cr. L. J. 89 and Abdul Razak v. Emperor A. I. R. (34) 1947 Oudh 1 : 47 Cr. L. J. 718. As against these two rulings, the learned Counsel for the accused relied upon two decisions of the Lahore High Court, In Qhazan v. Mt. Bhag Bhari A. I. R. (19) 193s Lah. 2lo : 38 Cr. L. J. 191 it was held that the words ''court of appeal eto. " in Section 522 (3) refer to the Courts dealing with the original conviction or trial, and do not refer to the High Court in reference from the order restoring possession, In Mohammad Sharif v. Diwan Singh A. I. R. (27) 1940 Lah. 95 : 49 Cr. L. J. 458 it was held that a Court of reference in Sub-section (3) of Section 522 can only be interpreted aa -meaning a Court which has the power to refer Hazarimai. v. The State (Oak J. G.) and that is only a Court empowered Under Section 533, Criminal P. C. Hence a Court which has got vpower to report a case to the High Court for orders is not a Court of reference. There may be some difficulty in looking upon the Sessions Judge as a Court of reference. But there is no such difficulty in accepting a High Court aa a Court of revision. There should therefore be no difficulty in holding that a High Court as a Court of revision can pass suitable orders Under Section 522 43), Criminal P. O. In Aswinikumar v. Sasanka, Mohan Bose A. I. R. (19) 1932 Cal. 750 : (S3 Cr. Ii. J. 868) it was mentioned that the High Court had ample jurisdiction Under Section 522 (3), Criminal P. C. at the time of dismissing an appeal from conviction Under Section 448, Penal Code. In that ruling it was not expressly laid down that a High Court cannot pass an order Under Section 523 (t), Criminal P. C. , at any subsequent stage of the proceeding. In Savlaram Sadoba v. Baya. nethwar A. I. R. (29) 1942 Bom. 148 : 43 Cr. L. J. 708 it was held by Beaumont C. J. that, al-ihough there be not before the Court any application in appeal or revision against the conviction of the accused, the High Court can Under Section 623 (3) make an order for possession in a proper oaae in revision against an order dismissing the application for possession. Similarly in Sahebjan v. Emperor A. I. R. (87) 1910 pat. 403 : 41 Cr. L. J. 311 it was held that in a proper case the Court of appeal or the Court of revision can yass an order Under Section 522, if such Court is satisfied that an order of the nature is necessary in the interest of justice. In Syed Umar v. Abdul Qadir A. I. R. (24) 1937 posh. 7 : 38 Cr. L. J. 333 it was held that the Judge becomes functm officio one month after the conviction. Limitation having expired, a revisional Court cannot enlarge period and restore possession in revision against an order Under Section 522, Criminal P. C. Sub-section (3) comes into play only when appeal or revision ia filed against eonvic tion.