Decided on March 14,1950



Govinda Menon, J. - (1.) The petitioners were convicted by the first class Bench Court of Salem in S. T. R. No. 189 of 1948 under Sections 448 and 426, Penal Code, and sentenced to pay fines. There was no appeal or revision against these sentences and therefore they became final and hence the merits are now beyond controversy. More than a month after the conviction, the respondent, who was the complainant, applied to the Bench Court for delivery of possession of the house, the trespass in which was the subject matter of the criminal case on the ground that the respondent had been wrongfully dispossessed by the petitioner. For the reason that the application was made more than one month after the disposal of the criminal case, the trial Court dismissed the application whereupon the respondent, by an original application as it were, applied to the Sessions Court for an order directing the delivery of possession of the house to him. The learned Sessions Judge after considering certain decisions quoted before him came to the conclusion that the respondent had been wrongfully dispossessed by the petitioners and therefore directed restoration of the property to-the respondent. Aggrieved by the order of the learned Judge, the petitioners have come up in revision to this Court and contest the legality of the learned Sessions Judge's order.
(2.) Mr. T. Krishna Rao for the petitioners, contended that Section 522, Criminal P. C. is inapplicable because there had been no use of criminal force or show of criminal force in the alleged dispossession of the respondent and therefore the section could not be invoked by the respondent even if he had applied in time, before the learned Sessions Judge. It is unnecessary in the view which we are going to take as, regards the sustain ability of the application before the Sessions Judge, to give a definite opinion on this aspect of the case at all.
(3.) But the real question is whether it is open to the respondent to initiate new proceedings as it were by application to the Sessions Judge, under Sub-clause (3) of Section 522 of the Code and ask for a relief which the trial Court could not have given after a month of the disposal of the criminal case. Sub-section (3) runs as follows : "An order under this section may be made by any Court of appeal, confirmation, reference or revision." This Sub-section was newly introduced when the Criminal Procedure Code was amended in 1923. Before that there was no such Sub-section. The joint committee which recommended the insertion of this Sub-section has expressed its opinion in the following words : "We have extended the scope of the proposed Sub-section to Courts of confirmation and reference." (See Gazette of India, Part V, dated 9-9-1922). The question has been the subject of discussion and consideration by various other High Courts in India but so far as our Court is concerned there is no direct ruling either way. The argument of the learned counsel for the petitioners is that Sub-section (3) can be invoked only by the trial Court within one month of the conviction or by a Court of appeal, revision, confirmation or reference when the original criminal proceedings go up to such a Court for any one of the remedies referred to therein and the order relating to she delivery of possession can be made only as ancillary or subsequent to any order made in the main case itself. In this case the learned counsel contends that it is not open to a complainant, who has been forcibly evicted, to lie low for more than a month without making any application to the Court of first instance, proceed to an appellate or revisional Court and then ask the Court to perform the functions which the trial Court could not do on account of the lapse of time. A plain reading of the section makes us incline to the view that this contention is correct. There are similar provisions under the Code where a Court of appeal or revision can make incidental or ancillary orders at the time of the final disposal of the criminal, proceedings before it. Reference may be made to Section 106, Sub-clause (3). It is stated there that in the case of security for keeping peace on conviction an order under that section can also be made by the appellate Court including the hearing of appeals under Section 407 or by the High Court when exercising the power of revision. The result of this case is that if the Court of first instance in convicting a person of the offence mentioned in Clause (1) of Section 106 omits to pass an order under the provisions of Section 106 when the matter comes up in appeal or revision before a superior Court, that Court has got the right, in addition to confirming or modifying the order of conviction to pass another order demanding the accused to furnish security for keeping peace. So far as Section 106 is concerned, no one has ever thought of asking an appellate or revisional Court to pass such orders without any appeal or revision pending before it. We find a similar provision in Section 565, Sub-clause (4) which is as follows: "The order under this section may also be made by an appellate Count or by the High Court when exercising its powers of revision." Section 565 contemplates cases where a person, who has been sentenced for the offences mentioned there and who happened to be an old offender, may be directed to notify his address after he is released from custody. It is also note, worthy that such orders can be passed by the appellate Court when an appeal against conviction is before it, and nobody has ever suggested that the appellate Court can have that power without an appeal or revision being taken before it. There are other provisions of the Code which it is unnecessary now to refer to where similar powers of passing ancillary or supplementary orders are given to the appellate Court or revisional Court at the time of the final disposal of the main case before it. But the learned Sessions Judge here thinks that Clause (3) of Section 622 gives unfettered right to the party to go to a Court to which appeals ordinarily lie from the Court of first instance even if there has been no appeal against, the conviction. The anomalous situation created by this view is exemplified by the following illustration. We are aware of separate territorial units where a single Magistrate exercises jurisdiction having appeals from each unit taken to different appellate Courts, so that if an offence is committed in place A the appeal goes to Sessions division C and if the offence is committed in place B, the appeal goes to sessions division D, even though one and the same Magistrate exercises original jurisdiction over both places A and B. In such a case, can it be said that a party can go to either of the appellate Courts for the purpose of getting an order under Section 522, Clause (3)? The mere statement of it would, in our opinion, show the fallacy of the reasoning. On a plain reading of the section, it seems to us that Sub-clause (3) can be invoked only when the main conviction is taken before the Court of appeal, reference, revision or confirmation and not otherwise. That there is authority for this view is also plain and clear. In Ghazan v. Mt. Bhagbhari, AIR (19) 1932 Lah. 210 : (33 Cr. L. J. 191), Dalip Singh J., was of opinion that the words "Court of appeal" etc., 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 orders restoring possession. What happened there was that after the conviction had become final an application was made to the trial Court more than one month after that date for delivery of possession and the Court of first instance acceded to that request. The High Court held that such an order was ultra vires and ought not to have been passed. In pronouncing the judgment, the learned Judge was of opinion that under Section 522 (1) of the Code an order for restoration of possession cannot be made after the expiry of one month from the date of conviction and an appellate Court could not pass an order which the Court of first instance was disentitled to pass because of the expiry of one month. But the point which is useful so far as the decision of this case is concerned is that the learned Judge has held that "the Court of appeal, confirmation, revision" etc., in Section 522 (3) would refer to the Court dealing with the original conviction or trial and not a Court to which an appeal revision, confirmation or reference would ordinarily lie. In Muhammad Shariff v. Diwan Singh, I. L. R. (1941) Lah. 377: (A.I.R. (27) 1940 Lah. 95 : 41 Cr. L. J. 458), Blacker J., followed the decision of Dalip Singh J., in Ghazan v. Mt, Bhagbhari, AIR (19) 1932 Lah. 210 : (83 Cr. L. J. 191), and came to the same conclusion. At pages 381 and 382, the learned Judge discussed the question and came to the conclusion that "the Court of appeal, confirmation or revision" can refer only to the Court when dealing with the correctness or otherwise of the original conviction and not on a petition for recovery of possession alone. The learned Judge also was of opinion that the Court of reference means the Court to which reference has been made. It is unnecessary to deal at length with the decision in that case. In Abdul Mannan v. Taiyab Ali, AIR (34) 1947 Cal. 390: (43 Cr. L. J. 908), Lodge J. of the Calcutta High Court expressed the opinion that the order contemplated by Section 522 (3) is an original order by a Court of appeal, confirmation," reference or revision. It is not merely a modification of an order passed under Section 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 Section 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. Those three authorities are directly in favour of the proposition contended for by Mr. Krishna Rao. Though not exactly ad idem there are observations in Maria Pillai v. Ramanathan Chettiar, 1928 M. W. N. 557 at p. 562 tending to show that the argument of the learned counsel is right. Waller J. in his judgment observes as follows : "The words 'any Court of appeal, confirmation or reference or revision' occur also in Section 522. There can be no possible doubt as to their meaning in that section. "Courts of appeal" must mean a Court in which an appeal in the case is pending." Though the learned Judges in the Full Bench did not have to consider the applicability of Section 522 and though these observations of Waller J. are obiter, we are respectfully of opinion that the view expressed there is correct and we follow the same.;

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