(1.) THIS is an application under sec. 439 of the Code of Criminal Procedure for revising an order passed by the Sub-Divisional Magistrate, Raj-samand on the 5th of September, 1967 in a proceeding under sec. 145 Cr. P. C.
(2.) THE brief facts which give rise to this application are that Kesharsingh, who claims to be the adopted son of Naharsingh, made an application on the 4th of March, 1967 under sec. 145 Cr. P. C. that 21 agricultural fields situate in village Farara at Gujra well belonged to him and have been in his cultivatory possession from the date of his adoption namely, 23rd August, 1952, and that he had paid land revenue in regard to these fields. His adoptive mother Mst. Deu, widow of Nahar Singh, who lived with him and who was maintained by him, created some misunderstanding between her and Lal Singh, who is the husband of Mst. Deu's daughter, and he was claiming the fields against the applicant and threatened to commit a breach of the peace in order to dispossess him. He further relied on the Ghast Girdawari. THE learned Magistrate by his order of the 14th March, 1967 passed a preliminary order and issued a notice to Mst. Deu, Lal Singh and 4 others. Mst Deu filed a reply with a plea that she had transferred by means of a gift deed dated the 31st of August, 1966 the agricultural lands in dispute to her son-in-law Lal Singh. Both the parties filed their affidavits and the Sub-Divisional Magistrate, Rajsamand relying on the affidavits filed on behalf of Mst. Deu came to the conclusion that she was in possession of the property in dispute and declared her possession until she was evicted in due course of law. Keshar Singh has come upto this Court.
Mr. S. K. Mal Lodha, appearing for the opposite parties, raised a preliminary objection that this Court should reject the application because the applicant has not made any application in the first instance either before the Sessions Judge or the District Magistrate having jurisdiction in the case and has come directly to the High Court under sec. 439 Cr. P. C. In support of his submission he relied on a decision of the Nagpur High Court in Bajirao vs. Mst. Dadibai and Kamabai (1): a decision of the Assam High Court in Gobardhandas Khakalia vs. Chaturbhuj Khaldalia (2); a decision of the Andhra Pradesh High Court in Veera Ramayya vs. Udayagiri Venkata Seshavatharam (3) and on Rule 308 of the Rajasthan High Court Rules, 1952 (hereinafter called 'the Rules' ).
The objection has been met by Mr. M. L. Shrimal on the ground that whatever may have been the position prior to the enactment of the Indian Limitation Act, 1963 (Act XXXVI of 1963 ). Art. 131 of this Act now provides a period of 90 day's limitation for the exercise of its revisional powers. It is the order of the trial court in criminal revisions which is subjected to scrutiny and as it is not normally possible to exhaust this remedy within 90 days and, therefore, a direct approach to the High Court should not be barred. He relied on Sahdev Mandal vs. Honga Murmu (4); Sakhichand Sahu vs. Ishwar Dayal Sahu (5); S. Narayanan vs. Kannamma Bhargavi (6) and Bon Behari Mondal vs. Bhusan Chandra Barui (7 ).
Rule 308 of the Rules inter alia provides that when an application for the exercise of revision is presented the reporting official shall examine it and report; " (i) Whether a revision had been previously filed in the Court of the Sessions Judge or the District Magistrate, as the case may be. " The rule is intended to acquaint the Court whether or not an application has been previously filed to the two courts which have concurrent jurisdiction for exercise of revisional jurisdiction. The rule does not provide for any consequence resulting from lack of such action. The practice has undoubtedly grown in this Court that ordinarily where a remedy could be pursued in a court subordinate to the High Court that should be resorted to in the first instance. Such has been the practice in the Sind Court, Assam High Court and the High Court of Andhra Pradesh and Calcutta High Court as is borne out by the cases cited before me. There is reason behind this rule of practice. The High Court's time is saved from examining what might be applications moved on flimsy grounds and the High Court has the advantage of having the opinion of a court superior to the one whose order is challenged. This practice seems to present a practical difficulty in view of the law of limitation. Art. 131 provides a period of Ninety days' limitation for the 'exercise of its revision by "any Court" under the Code of Criminal Procedure. This is to be counted from the date of 'order' or 'sentence' "sought to be revised. " In case of a revision against an "order", in a proceedings under sec. 145 Cr. P. C, as is the case before me, the order sought to be revised is the one passed by the Magistrate. If an aggrieved party desires to challenge it and adheres to the practice of first moving the District Magistrate or the Sessions Judge then in most cases the period of limitation prescribed by Art. 131 will have run out by the time the party reaches the High Court, in a case where it fails to get relief by either of these Courts. This rule of practice, in terms of actual working, may leave the party only with the option of seeking the aid of sec. 5 of the Limitation Act. Therefore, the question which emerges for consideration is whether the High Court should insist on the observance of the practice in the changed conditions of the statutory law.
This question arose for consideration in two reported judgments of the Patna High Court. In Sahdev Mandal's case (4) Ramratna Singh and Anwar Ahmad JJ. held that a party is not bound to approach the Sessions Court or the District Magistrate notwithstanding the well-established practice. They further opined that even if it was assumed that the order sought to be revised was not of the original court but of the Sessions Judge or the District Magistrate, the result would be to direct either of these courts to make a reference, which would be a cumbrous course. In Sakhichand Sahu's case (5) again Ramratna Singh and K. K. Dutta JJ. adhered to this view.
In Bon Behari Mandal's case (7) Talkudar, J, while dealing with an order under sec. 203 Cr. P. C. and the revisional powers under sec. 436 Or. P. G. expressed the opinion that in case under sec 436 Cr. P. G. the High Court should refuse to entertain a revisional application in the first instance save and except on special grounds because the rule of practice has 'assumed sanctity imparted to it by imprimatur of judicial decisions' and it should not be normally departed from. But once such an application has been entertained and records have been called for such a technical objection would not hold good and the High Court is "bound to dispose it on merits" because parties would be put to harassment. " The learned Judge added. "law is good but justice is better. . . " The judgment does not examine the question from the point of limitation,
In the Full Bench Kerala case (S. Narayanan vs. Kannamma Bhargavi) the Judges expressed the view that Kerala High Court has been all along entertaining revisional application direct. The jurisdiction vested in the High Court under sec. 439 Cr. P. C. is very wide and it is not expected to enquire whether the party has approached the Court of the Sessions Judge. The learned Judge also examined the question from the angle of Art. 131 of the Limitation Act.
In my opinion R. 308 of the Rules nowhere bars the direct approach to the High Court under sec. 439 Cr. P. C. It is a rule merely to gather the previous history of the case.
The word "order sought to be revised" employed in Art. 131 of the Limitation Act, in a case such as I have before me, is the order of the Court of the Magistrate who passed the order under sec. 145 Cr. P. C. and not the order which the District Magistrate or the Sessions Judge may have passed in case they declined to interfere. I am in respectful agreement with the views expressed by the Patna and Kerala High Courts. In this view of the matter any insistence on the practice of exhausting one's remedy in an inferior Court of concurrent jurisdiction is bound to present practical difficulties on the question of limitation in certain class of cases. However sound the rules of practice may be in other spheres but where a change in statutory law created problems in acting upon it, dictates of justice persuade rne to hold that the rule need not be strictly adhered to. All rules of practice aim to facilitate justice and not to frustrate it. If this rule is not departed from then resort to the provisions of sec. 5 of the Indian Limitation Act will present an additional hurdle to the litigant and an additional controversy regarding the question of "sufficient cause". There being no bar under sec. 439 Cr. P. C. preventing a H. G. a direct entertainment of an application for revision I would not insist in a case like the one before mean the party first approaching the Court of the Session or the District Magistrate. I, therefore, reject this preliminary point.
Coming to the merits of the case, the learned Magistrate posed a question that he had to see as to who was in possession of the 21 fields in dispute two months before the date of the preliminary order. The learned Sub-Divisional Magistrate observed that on the lands in dispute there stands a house which is occupied by Mst. Deu. Referring to the dispute between Kesharsingh, the adopted son, and his adoptive mother, the learned Magistrate has observed that Kesharsingh, the applicant, has abandoned his-residence in village Farara for the last 1-1/2 years and he has been residing in Chitaman-ke-Bhadra and the possession of the fields in dispute was not his. The question of possession is largely a question of fact. Revisional courts are always slow to interfere with the findings of fact. I therefore, see no reason to interfere with this finding of fact reached by the S. D. M.
Accordingly, this revisional application fails and is dismissed. .