Jahara Panigrahi vs Ula Panigrahi and Another

G.K. Misra, J.—Petitioner filed a complaint against the opposite parties alleging that the son of the petitioner and some other persons were bringing their paddy from the field on 12-12-1961 when the opposite parties removed the paddy from their custody and kept them in their own thrashing floor. Police seized the paddy from the thrashing floor of the accused on 11-1-1962. The accused persons were acquitted of the charges under Sections 379 and 477, Penal Code on 17-12-1963. No appeal was filed and the order of acquittal became final. The complainant filed an application before the Magistrate u/s 517, Criminal P. C. for return of the sale proceeds of the paddy seized from the thrashing floor of the accused on 11-1-1962. The Magistrate passed the following order on 22-2-1964 :

"The complainant and the accused persons put their respective application to take delivery of the seized paddy deposited in the Court in form of cash after sale. The paddy was seized from the thrashing Moor of the accused. In this particular case, the D. W. 1 admits that, the paddy was raised by the complainant, and the land was in her possession. Hence, the complainant is ordered to take the amount deposited in the Court on account of the seized paddy."

Against this order the accused filed an application before the learned Sessions Judge on 10-3-1984. He told that there was no clear finding by the Magistrate that the complainant had grown the paddy in question. As the paddy was seized from the custody of the accused, he directed payment of the sale proceeds to them. Against this order of the learned Sessions Judge, the criminal revision has been filed.

A preliminary objection was raised before the learned Sessions Judge that no appeal lay to him u/s 520, Criminal P. C. from an order passed Section 517 (1) Crimes PC The learned Sessions Judge accepted the contention of the complainant that no appeal lay. But he came to the conclusion that he could exercise power of superintendence and could interfere with the order. It would be pertinent to quote the order of the learned Sessions Judge to appreciate the point in issue.

It is well settled in Sharfuddin Vs. Sirajuddin and Another, that an independent appeal u/s 520 Crimes PC is not maintainable. But a petition can be filed by the aggrieved party u/s 520 Crimes PC challenging the order passed by the trial Court u/s 520 Crimes PC The higher Criminal Courts act u/s 520 Crimes PC in exercise of their general power of superintendence.

Mr. P.V. Ramdas raised two contentions :

(i) The learned Sessions Judge has no appellate forum u/s 320 Crimes PC against an order under 518 Crimes PC He has also no power of superintendence. The power of superintendence is conferred u/s 520 Crimes PC which is subject to Section 510 Crimes PC The Sessions Judge-can make a reference to the High Court and cannot annul the order of the Magistrate.

(ii) On merits the learned Sessions Judge did not take into consideration the evidence of the witnesses for the complainant stating that the complainant grew the crop.

The first contention deserves close scrutiny. In Sharfuddin Vs. Sirajuddin and Another, this Court, clearly held that no appeal lay to the Sessions Judges u/s 520 Crimes PC against an order u/s 517 Crimes PC This was mainly based on a" Single Judge decision of the Allahabad High Court in Talewar Jha Vs. Mool Chand, The Court also was aware of the sharp conflict of authority on this point Talewar Jha Vs. Mool Chand, was subsequently, overruled by a Division Bench of that Court in Ram, Abhilakh v. State AIR 1981 All 544 . As the single Judge decision has been overruled, it was contended in Arjun Padhy and Others Vs. State of Orissa and Another, for reviewing the decision in Sharfuddin Vs. Sirajuddin and Another, and the learned Chief Justice did not express any final opinion in the matter. It is, however, to be noted that in Sheo Dan Vs. Pir Dan and Another, a Division Bench of that Court accepted Talewar Jha Vs. Mool Chand, as laying down good law despite the fact that the later Division Bench decision in Ram Abhilakh and Another Vs. The State, , overruling the earlier Single Judge decision was brought to their Lordships'' notice. It is unnecessary to refer to some other authorities which have subsequently come into existence after the decision of this Court in Sharfuddin Vs. Sirajuddin and Another, It would be sufficient to say that it represents one view over which there is sharp conflict of authority and this view has been accepted as the correct view in Sheo Dan Vs. Pir Dan and Another, . In the aforesaid state of things, it is unnecessary to refer the matter to a Division Bench for reconsideration. I hold that Sharfuddin Vs. Sirajuddin and Another, has been correctly decided.

On the authority of that decision, the position of law is not disputed that no appeal lies to the Sessions Judge u/s 520 Crimes PC against an order u/s 517 (1). The learned Sessions Judge, however, took the view that he could exercise power of superintendence. He, however, made no reference to any section under which he could annual the final order when no appeal lay to him u/s 520 Crimes PC in exercise of his power of superintendence. The only section on which reliance can be placed is Section 435 Crimes PC which runs as follows :

"435. (1) The High Court or any Sessions Judge, or District Magistrate, or any sub-divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may when calling for such records, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

It is, however, to be noted that except as laid down in Section 435 Crimes PC the Sessions Judge cannot finally dispose of any other matters which come within the purview of Section 435. He is only to make a reference to the High Court u/s 438 Crimes PC with regard to the residual matters. Section 438Crimes PC lays down that the Sessions Judge, if he thinks fit, on examining u/s 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination, and, when, such report contains a recommendation that a sentence be reversed or altered may order that the execution of such sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond.

It is thus manifest that though the Sessions Judge has got power of superintendence u/s 418Crimes PChe has no power to finally dispose of matters unless they come within the purview of Sections 436 Crimes PC The learned Sessions Judge missed this point and interfered with the final order passed by the Magistrate u/s 438 Crimes PC The learned Sessions Judge had no jurisdiction to quash the order of the learned Magistrate (See Sheo Dan Vs. Pir Dan and Another, , paras. 7 and 9). The judgment of the learned Sessions Judge must accordingly be set aside.

In view of the aforesaid conclusion, it is unnecessary to examine the merits of the question whether the complainant or the accused grew the crop. The finding of the learned Magistrate that the complainant is entitled to the sale proceeds stands and it is not necessary to go into that question when no revision has been filed by the accused persons who were aggrieved by such order.

In the result the judgment of the learned Sessions Judge is set aside and that of the trial Court restored and the revision is allowed.