- (1.) THIS is a reference by the learned Sessions Judge of Jodhpur.
(2.) THE facts out of which this reference has arisen are as follows: One Jasraj filed a complaint under sec. 447 I. P. C. against Ladia and Puria Sirwis of village Kharia, Tehsil Bilara, on the allegations that the complainant was in possession of seven fields Nos. 1489, 1495, 1497, 1480, 1500 and 1501 comprising an area of 118 bighas and 34 biswas of land, as also another plot of land No. 1485 measuring 2 bighas and 33 biswas in area, situated in Kharia village. He alleged that the accused had dispossessed him on 23rd October 1947. THE complaint was filed on 20th November 1947. THE accused were convicted on 5th July 1949 by the Second Class Magistrate and sentenced to pay a certain fine. On appeal the District Magistrate of Jodhpur maintained the conviction but reduced the fine by judgment dated 22nd March 1950. The accused filed a revision to this Court but in the meanwhile the complainant applied to the District Magistrate for an order under sec. 522 Cr. P. C. The District Magistrate passed an order that the complainant be put in possession of the fields on 13th May 1950. The revision to the High Court was, however, successful and the accused were acquitted on 16th January 1951. The accused thereafter applied to the District Magistrate for vacating his order of 13th May 1950 and prayed for their being placed in possession of the property as they had been acquitted. The District Magistrate on 8th June 1951 passed an order vacating his earlier order of 13th May 1950 and directed that the accused having been acquitted should be redelivered possession of the fields in dispute which had been taken away from them under the previous orders of the District Magistrate. One Kesrimal, a sub-lessee of the complainant, objected but his objection was overruled whereupon he filed a revision to the Court of Session and the learned Sessions Judge has recommended that the order of the District Magistrate dated 8th June 1951 and subsequent order of the next day to the same effect may be set aside on the ground that the District Magistrate had no jurisdiction to pass that order which amounted to a review of his earlier order of 13th May 1950. The reference is opposed by counsel for Ladia and Puria, while counsel for Kesrimal has strenuously tried to support the reference. Learned counsel for Kesrimal relied upon Ram Chandra v. Nobin Mirdha (1) (I. L. R. XL Cal. 630.) in which a Magistrate had ordered delivery of possession to the complainant while convicting the accused for trespass. That judgment was set aside by the Sessions Judge who acquitted the accused. The learned Sessions Judge by the same order directed that the possession which had been taken away from the accused by order of the Magistrate should be re-delivered to the accused. Their Lordships of the Calcutta High Court held that the Court of Session had no such jurisdiction. That seems to have been the view under the Code that was in force at that time. In 1923 the Code of Criminal Procedure had been amended by insertion of clause (d) to sec. 423 of the Code and there is no doubt that an appellate court has now the jurisdiction to make any amendment or any consequential or incidental order that may be just and proper while deciding the appeal before it. Learned counsel, however, contends that the power under sec. 423 (d) could have been exercised by the High Court while dealing with the revision. This is no doubt true but the question before us is whether the order parsed by the District Magistrate is without jurisdiction and whether it should be set aside. In order to appreciate the order of the District Magistrate dated 8th June 1951 it is relevant to mention the findings of the High Court in the case started by Jasraj. These findings are given in the concluding portion of the judgment by Justice Bhardwaj - "for the reason given above, I hold that the present complaint by Jasraj was false and frivolous and without any foundation and liable to be dismissed. Therefore I accept the revision, set aside the convictions of the applicants and acquit them. " It may also be mentioned that the defence of the accused in that case was that the fields' belonged to them and they had been in possession of those fields for a considerable time. It is, therefore, obvious that the complainant had brought about the order of his being placed in possession by the District Magistrate in circumstances which were not at all justified, and after the judgment of the High Court it does not require much argument to say that the accused had wrongly been deprived of the possession of the property by a wrong order of the court. In the case cited by learned counsel for Kesrimal, there is a reference to a passage in Rodger vs. Comptoir D. Escompte De Paris (2) (1871, Law Reports, 3 P. C. , Appeals 465.) in which their lordships of the Privy Council referred to the duty of all courts to take care that the act of the court does no injury to any of the suitors. There is, thus, ample authority for the court to place the parties in the position in which they were prior to the institution of the complaint. The delivery of possession to the complainant under circumstances which have been held to be erroneous was a wrong perpetrated on the opposite party by the act of the court and the District Magistrate rightly took steps to undo that wrong by directing that the possession be restored to the accused who had been acquitted by the High Court. Learned counsel for Jasraj, however, contends that as the matter was not agitated before the High Court when it was dealing with the revision petition of the accused, it may be taken that the High Court did not agree to grant that relief to the accused. The accused could only have asked for vacating the order of the District Magistrate directing the complainant to be in possession after the judgment of the court had been pronounced because prior to that event they could not have anticipated the judgment of the court. In this connection a reference to sec. 425 Cr. P. C. also appears to be necessary. Under that section, the decision of the High Court is to be notified to the lower court and the latter is enjoined to pass orders conformable to the judgment or order of the High Court. The order of the District Magistrate in directing that his earlier order be vacated was in conformity with the judgment of the High Court and it cannot, therefore, be said that the District Magistrate had no jurisdiction to pass the order of 8th June 1951 which he did. Leaving aside the question as to the jurisdiction of the District Magistrate for a moment, sec. 561-A of the Code of Criminal Procedure also declares that - "nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". As mentioned above, I hold that the order of the District Magistrate dated 8th June 1951 was within his jurisdiction, but should it have been necessary to find that there was any lack of jurisdiction, an order like the present, which is conformable to the judgment of this Court, could also be passed under sec. 561-A of the Code by this Court. It was faintly argued that whatever wrong may have been commi-ted by Jasraj the present order of the District Magistrate would penalise Kesrimal who took the lease from Jasraj at a time when the latter was in possession. Kesarimal's claim only arises through Jasraj and he cannot have better claims to hold the property in his possession. In the circumstances, the reference made by the learned Sessions Judge is not correct and is hereby rejected. The Second Class Magistrate will now proceed further according to law. .;