Bhagwandas vs Dhannulal

Shinde, J.—This is reference by the Ses. J. Guna, u/s 438, Cr. P.C. The facts of the case are as follows:

On 31-5-60, Dhannalal submitted an appln. in the Ct. of the Dist. Mag. Shivpuri u/s 144, Cr. P.C. praying, that he has been dispossessed of a Kotha by Bhagwandaa & hence possession be restored, to him. The Dist. Mag. ordered the police to restore possession to the appct. Dhunnalal. In compliance with this order the police restored possession of the Kotha to Dhannalal on 2.6.50. On 3.7 50 the Dist. Mag. set aside his order passed on 1-6-50. On 8 7-50 Bhagwandas submitted an appln, praying that as the appln. u/s 144, Cr. P.C. has been dismissed, possession which had been given to Dhannalal be restored to him. On this the Diet, Mag. ordered that as the appln. had finally been disposed of no deficiency can be corrected thereafter. Bhagwandas filed an appln. in revu. in the Ct. of the Ses. Judge who being of the opinion that the order of the Diet. Mag. deserves to be revised, has made this reference u/s 438, Cr. P.C.

It is true that as a general rule once a case has been finally disposed of the same Ct. cannot pass any order even to correct any deficiency left in the proceeding. But u/s 561 (a), Cr. P.C. H, C, has power to pass orders to secure the ends of justice. The appln. u/s 144 was dismissed as it was not entertainable under that section. Under these circumstances the parties should be restored to the position in which they were before the proceedings started.

Hence I accept the reference & direct that the possession of the disputed Kotha be restored to Bhagwandas from whom it was taken under the orders of the Dist. Mag.