D.D.Seth, J. - (1.) This application in revision is directed against an order passed by the learned Sessions Judge of Kumaun, dated 5th October, 1968, and arises out of the following circumstances:- There had been on two previous occasions proceedings under Section 145, Criminal Procedure Code between the parties in the court of the learned Sub Divisional Magistrate, Tarai, Kumaun. The first proceedings under Section 145, Criminal Procedure Code were in respect of the same land which is in dispute in the present revision and the number of that criminal case was 11/2 of 1962. In those proceedings, Chanan Singh was given possession over plot Nos. 2 (30 Bighas 10 Biswas), 4 (37 Bighas) and plot No. 15/1 (5 Bighas). The total area of the three plots of which possession was given to Chanan Singh by the learned Sub Divisional Magistrate comes to 72 Bighas 10 Biswas land of the three plots on 30th April, 1964. Thereafter, another proceeding under Section 145, Criminal Procedure Code took place between the parties and by an order passed on 24th March, 1965 the learned Sub Divisional Magistrate, Tarai, Kumaun, held that Chanan Singh was entitled to possession over plots Nos. 2, 4, 15/1.
(2.) On the basis of the earlier decision in 1964 by the learned Sub Divisional Magistrate, proceedings under Section 145, Criminal Procedure Code were decided in favour of Chanan Singh and a revision preferred by Hari Singh and another was also dismissed and it was conceded that they had no objection to Chanan Singh taking possession over plots Nos. 2, 4/2 (37 Bighas) and 15/1. In revision, however, it was contended on behalf of Hari Singh and another that the entire plot No. 4. which included plot No. 4/1 (90 Bighas) had been attached and the plot No. 4/1 did not belong to Chanan Singh, but belonged to Hari Singh and another. The revision preferred by Hari Singh and another was Criminal Revision No. 9 of 1965 and was decided by the learned Additional Sessions Judge, Kumaun, by his order dated 3rd December, 1966. Although the learned Additional Judge rejected the revision filed by Hari Singh and another, but in his order disposing of the revision, he came to the conclusion that a confusion had taken place because the land which had been attached in proceedings under Section 145, Criminal Procedure Code had been attached by reference to the boundaries given by Chanan Singh and, in fact plot No. 4/1 (90 Bighas) was never intended to be attached and was never meant to be given to Chanan Singh. The learned Additional Sessions Judge, therefore, directed that plots Nos. 2 (30 Bighas 10 Biswas), 4/2 (37 Bighas) and 15/1 should be given to opposite party Chanan Singh. Thereafter, Hari Singh and Kartar Singh filed an application before the learned Sub Divisional Magistrate under Section 517, Criminal Procedure Code praying they may be given the price of the produce of sugarcane crop of plot No. 4/1 (90 Bighas) which was held in deposit by the Court. The learned Sub Divisional Magistrate by his order dated 9th July, 1968, dismissed the application of Hari Singh and Kartar Singh under Section 517, Criminal Procedure Code and held that the fate of new plot No. 21-A already stands decided and there is nothing for me to decide in this case. Against the order of the learned Sub Divisional Magistrate dated 9th July, 1968, Hari Singh and Kartar Singh preferred an appeal which was heard by the learned Sessions Judge of Kumaun and before the learned Judge, a preliminary objection was raised on behalf of Chanan Singh that the appeal was not maintainable because under Section 520, Criminal Procedure Code, a revision should have been filed since the original order in the case under Section 145, Criminal Procedure Code was only revisable and not appealable. It was further urged by Chanan Singh that in view of the provisions contained in Section 438, Criminal Procedure Code, such a revision could not be decided by the learned Sessions Judge but a reference should be made to the High Court. The learned Sessions Judge of Kumaun, it seems, converted the appeal into a petition. Although no written order is on the Order Sheet, but the order passed by the learned Sessions Judge shows that he entertained the application filed by Hari Singh and Kartar Singh as miscellaneous proceedings and not as an appeal, revision or reference.
(3.) The learned Sessions Judge, after quoting Section 520, Criminal Procedure Code, held that a casual reading of that section indicates that the Court which is to be approached for alteration or modification of an order under Section 517, Criminal Procedure Code has absolute powers to make such modifications or alterations and has further the powers to make such other order that may be just and no reference has to be made to the High Court. The learned Sessions Judge further observed as follows:- "If that was the intention of the Legislature, it could be so stated in the section itself in unmistakable terms. The objection of the learned State counsel that a revision should have been filed by the applicants and that revision has to be referred to the Hon'ble High Court is, therefore, not tenable and cannot be accepted. It also seems to me that the Court of appeal, confirmation, reference or revision only indicates the forum to which the aggrieved party had to go and it does not imply that in certain orders under Section 517, Criminal Procedure Code an appeal has to be filed, in certain other orders under the same section a reference has to be filed, in yet some other orders under Section 517, Criminal Procedure Code, a revision has to be filed and in some orders under Section 517, the aggrieved party has to move for confirmation. Obviously, four different kinds of proceedings cannot be initiated when a party is aggrieved by an order under Section 517, Criminal Procedure Code. In my judgement, therefore, Court of appeal, confirmation, reference or revision, as mentioned in this section, only lays down the forum and indicates which Court the aggrieved party has to approach for correction of the order made under Section 517, Criminal Procedure Code. Such a Court which the aggrieved party approaches has then the powers to modify, alter or annul the order made by the learned Court under Section 517, Criminal Procedure Code. The proceedings in the superior Court initiated are, however, in the nature of Misc. proceedings and can neither be taken to be an appeal or revision or reference. I am, therefore, unable to find any fault with these proceedings as brought before me." With these observations, the learned Sessions Judge allowed the application of Hari Singh and Kartar Singh and set aside the order passed by the learned Sub Divisional Magistrate and ordered the price of the crop of plot No. 4/1 (90 Bighas) held in deposit by the Court to be given to Hari Singh and Kartar Singh.;