HARI SAHU Vs. PASORI SAHU
HIGH COURT OF ORISSA
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NARASIMHAM, J. -
(1.) THIS petition is for revising an order under Schedule 22 (3), Criminal P. C., passed by the Sessions Judge of Cuttack under the following circumstances.
(2.) THE petitioner was tried for the offence of house trespass Under Section 448, Penal Code and convicted by a Magistrate on 27 -6 -1949. His appeal to the Sessions Judge was disposed of 10 -8 -1949 and though
the conviction was maintained the sentence of fine was reduced. A criminal revision to this Hon'ble High
Court was dismissed on 16 -9 -1949. Till then the opposite party did not apply to any of the three Courts
for action under Schedule 22, Criminal P. C. On 24 -11 -1919 for the first time the opposite party applied to
the appellate Court (the Sessions Judge, Cuttack) praying for an order for restoration of possession of a
portion of the house which the petitioner was said to be occupying forcibly. The Court passed an ex parte
order allowing the petition. Thereupon, the petitioner filed an application for reconsideration of the ex
parts order and on 17 -1 -1950 the Sessions Judge refused to reconsider the same. This revision petition has
been filed against that order dated 17 -1 -1950.
The sole question of law for consideration is whether the Court of appeal can pass an order under Schedule 22 (3), Criminal P. C, long after the disposal of the appeal. In the present case the appeal was
disposed of on 10 -8 -1949 and the order Under Section 522 (3), Criminal P. C. was passed more than three
months later on 24 -11 -1949. Mr. Dasgupta's contention is that the Court of appeal became functions
officio after disposing of the appeal on 10 -8 -1949 and that it bad no jurisdiction to pass an order under
Schedule 22 (8). Crime nal P. C. on any subsequent date. He further argued that even if it be held that the
Court had any such jurisdiction that jurisdiction was limited to the period of 30 days from the date of the
disposal of the appeal and that it cannot be extended beyond that period. In support of this argument he
has relied on a single Judge's decision of the Calcutta High Court reported in Abdul Mannan v. Taiyab Ali,
A. I. R. (84) 1947 Cal. 390 : (48 Cr. L. J. 908).
(3.) MR . Pal has, however, relied on a series of decisions of almost all other High Courts taking a contrary view. In Fida Bussain v. Sarfaraz Hussain, A. I. R. (20) 1933 Pat. 617 : (34 Cr. L. J. 940), a single Judge
relying on an earlier decision of the Patna High Court held that there was nothing in Schedule 22 (3),
Criminal P. C., to limit the jurisdiction of an appellate Court to the passing of an order within one month
either of the original conviction or of the appellate order. It was left to the discretion of appellate and
revisional Courts not to exercise their powers under this section in cases where there has been undue or
excessive delay in moving the Court for its use. The same view has been taken in a later Division Bench
decision of the Patna High Court reported in Gudri Mahton v. Jangi Mahton, A. I. R. (21) 1984 Pat. 154 :
(35 Cr. L. J. 1188). The Nagpur High Court has taken the same view in Namdeo Atmaram v. Emperor, A.
I. R. (25) 1938 Nag 316 : (39 Cr. L. J. 342) which has been followed in Ramnath Sheonarayan v. Sonaji
Krishanji,. A. I R. (85) 1948 Nag 260 : (49 Cr. L. J. 383). Similarly the Lahore High Court in Roda v.
Autar Singh A. I. R. (261 1938 Lab. 839; (40 Cr. L. J., 380) and the Allahabad High Court in Nihal Singh
v. Emperor, A. I. R. (26) 193 & ALL. 662 : (40 Cr. L. J. 958) have taken the same view. My attention has
not been drawn to a decision of any High Court which has taken the view of the single Judge of the
Calcutta High Court in Abdul Mannan v. Taiyab Ali, A. I. B. (34) 1947 Cal. 390 : (48 Cr. LJ. 908).;
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