KALU Vs. MAMOTI SAHAI

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge, Alwar on an application for revision filed by Kalu alias Kalia who was convicted under sec. 447 of the Indian Penal Code by the Extra Magistrate, Tijara. No order for restoration of possession was made by the trial Magistrate at the time of the conviction of the accused. An appeal was filed in the case and was dismissed by the learned Sessions Judge, Alwar, but on order for restoration of possesion was made by the appellate court. Within a month from the original order of conviction, the complainant Mangti Sahai made an application under sec. 522 (1) of the Criminal Procedure Code for restoration of possession. THIS application could not be disposed of within one month as the file had gone to the appellate court. An application by way of reminder was made by the complainant on the 20th of January 1955, and ultimately, the learned trial Magistrate ordered restoration of possession by an order dated the 21st of April 1953. Against this order, the present applicant Kalu went in revision to the court of Sessions Judge, Alwar who apparently felt that no order could be made by the Magistrate for restoration of possession more than one month after the order of conviction. He however, relying upon certain decisions of Bombay, Patna and Allahabad High Courts, has made the reference to this Court recommending that the defect in the Magistrate's order for restoration of possession more than one month after the conviction be removed and his order be upheld.

(2.) NO body has appeared on behalf of the respondent. On behalf of the accused, Shri O. P. Sharma has appeared. He has argued that the words "court of appeal, confirmation, reference or revision" under sub-sec. 3 of sec. 522 of the Criminal Procedure Code mean the court before which an appeal, reference or revision or proceedings for confirmation in the original case are pending and not the court before which an application for restoration of possession passed by the Magistrate separately on an application of the complainant, is pending. He has cited certain decisions of Lahore and Calcutta High Courts and of Judicial Commissioner's court, Peshawar. It was held by the Calcutta High Court in the case of Abdul Maunan vs. Taiyab Ali (l) that - "the order contemplated by sec. 522 (3) is an original order by the Court of appeal, confirmation, reference or revision. It is not merely a modification of an order passed under sec. 522 (3) by the court of first instance. The occasion for the exercise of the power conferred upon the Court of appeal, confirmation, reference or revision by Sec. 522 (3) arises only when an appeal or reference or revision against the order of conviction is pending before that Court. The Court of appeal, confirmation, reference, or revision must pass the order of restoration of possession when upholding the conviction or at any time within one month from the date of the order in appeal, confirmation, reference or revision upholding the order of conviction. The same view was taken by the Lahore High Court in the case of Charan vs. Mst. Bhag Bhart (2 ). and it was held that - "under sec. 522 (3) of the Criminal Procedure Code the words "court of appeal" etc, 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 Said Umar vs. Abdul Qadir (3), it as held that - "when once the lower court has ceased to have the power of giving possession, the revisional court cannot, when moved to consider the order of that Court refusing to give possession on the ground of limitation, enlarge that period and grant the relief. Sub-cl. (3) to that section comes into play only when an appeal or revision has been preferred against the conviction. It is then that the appellate or revisional Court is seized of that jurisdiction to restore possession although the original Court may not have done so and such higher Courts are not bound by the limitation of one month in doing so. But this clause does not help if the Court of Revision is considering the order of the trial Court under sec. 522, Criminal P. C. , refusing to grant possession because the time for making the order had passed. " The learned Sessions Judge in his order of reference has referred to the case of Sailaram Sadoba Navle vs. Dhyaneshwar Vishnu Chinke (4), in which it was held by a Division Bench that - "although there be not before the court any application in appeal or revision against the conviction of the accused and the Magistrate has rightly dismissed the application for an order for possession under sec. 522 (1) because made more than a month after the conviction, still the High Court can under sub-sec. (3) of sec. 522 make an order for possession in a proper case in revision against the order dismissing the application for possession. " He has also referred to a case of Patna High Court in the case of Rameshwar Singh vs. Emperor (5) and Sahebjan vs. Emperor. In the first of these two cases, it was held that - "any order under the section may be passed by the Courts of appeal, confirmation, reference or revision at any time howsoever long after the conviction by the Magistrate. Thus, where a magistrate passes an order under sec. 522 beyond the prescribed one month, though the order by the Magistrate is illegal, yet it is competent to the High Court as Court of Revision to order the restoration of possession to the person dispossessed. " In the second case, it was held that - "in a proper case, the Court of appeal or the Court of revision can pass an order under sec. 522. if such court is satisfied that an order of the nature is necessary in the interest of justice and where an application under sec. 522 is made by the complainant two days after the conviction of the accused and an order on that application is passed by the Court more than two months after the date of the conviction, the delay in passed the order not being due to any fault on the part of the complainant, the order is not bad. " The view which was taken in the Bombay and Patna cases referred to above was also taken by the Allahabad High Court in the case of Nihal Singh vs. Emperor (7 ). In that case also, the Magistrate passed an order under sec. 522 beyond the prescribed one month, and it was held that though the order of the Magistrate was illegal, yet it was competent to the High , Court under sec. 522 (3) as court of revision to order the restoration of possession to the person dispossessed, and that there was no limitation of one month for an order under sub-sec. 3.