Jnarendra Nath Chakravorty vs Nagendra Nath De and Another

Sen, J

This revisional application is directed against an order of the lower appellate court, namely, the Additional Sessions Judge, 1st Court, Alipore, setting aside an order passed by a First Class Magistrate, Alipur, u/s 522(1) of the Code of Criminal Procedure for restoration of possession. The facts of the case are briefly as follows:

The petitioner Jnanendra Nath Chakraborty describing himself as shebait of a deity styled Sree Sidheswar Shiva at Purba Putihari was occupying the land around the deity''s temple and the land was fenced round by him and within the fence he grew fruit trees and flower plants. He was in occupation of the land for a few years without taking any lease from the Irrigation Department of the Government which owns the land. On 30th December, 1953, in the early hours the opposite parties entered into the land by breaking down a portion of the fence, damaged the flower and fruit trees and raised some huts. On this allegation the petitioner filed a case against the opposite parties and the opposite parties were tried in respect of charges under sections 447 and 427 of the Indian Penal Code for causing mischief exceeding Rs. 50. The learned Magistrate convicted the opposite parties and sentenced them to pay certain fines. He also directed restoration of possession by his order u/s 522(1) of the Code of Criminal Procedure in the following terms:

As I find that the accused persons forcibly raised huts on the land in possession of P. W. 1 as shebait of the deity, I u/s 522(1) direct the accused persons to restore to P.W. 1 (the petitioner) the land of which P.W. 1 has been dispossessed by them within one month from this date.

There was an appeal by the opposite parties to the Sessions Judge, Alipur, against their conviction and sentence and the order u/s 522 of the Code of Criminal Procedure was also challenged. The learned Additional Sessions Judge upheld the conviction and sentence of the opposite parties under sections 447 and 427 of the Indian Penal Code. He, however, set aside the order of restoration passed by the learned Magistrate u/s 522(1) of the Criminal Procedure Code, observing that the extent of the land from which the complainant has been dispossessed was not clear, and that it appeared from the testimony of the Investigating Officer that the huts stretched from the immediate east of the road, some of the huts being on the vacant land outside the fencing. There was no clear evidence to show how many huts were raised inside the fencing and what was the land inside the fencing. In view of the vagueness of the land from which the complainant petitioner had been dispossessed the learned Additional Sessions Judge thought that the order could not be effective and so he set it aside.

Mr. Majumdar appearing for the petitioner has urged that the order of the learned Additional Sessions Judge setting aside the order of restoration was had and that actually there was no vagueness about the land from which the petitioner had been dispossessed, it being the land within fencing. Mr. Ganguly appearing for the opposite parties has, on the other hand, contended that the fencing which was alleged to have been broken down no longer exists and it would not, therefore, be possible to define the extent of the land in respect of which an order for restoration of possession might be made and that the order would, therefore be infructuous. Before dealing with the question, we shall deal with a point of law raised by Mr. Banerjee appearing for the State. He has urged that an order u/s 522(3) of the Code of Criminal Procedure would be an original order which could be passed only if there was a revisional application from the conviction itself pending before the court and that such an order could be passed within one month from the date of conviction, the time limit being set out in sub-sec. (1) of section 522 of the Criminal Procedure Code, for, according to him, the revisional Court could not have wider powers than the original court which passed order of conviction. It must be held, however, that a revisional application in respect of an order u/s 522(1) of the Code of Criminal Procedure may be entertained by us even when there is no revisional application in respect of the conviction. u/s 435 of the Code of Criminal Procedure, any order passed by a court subordinate to High Court may be examined by the High Court for ascertaining whether the order passed is legal, correct or proper. Accordingly, there is no reason why an order u/s 522 of the Criminal Procedure Code by itself should not be open to revision by the High Court. If the High Court were to pass at this stage an original order in revision u/s 522(3), the question of limitation of one month from the date of conviction might have to be considered. On this point there appear to be conflicting decisions and we need not consider them, because even if we were to restore the order of the learned Magistrate in this revision, it would not be an original order passed by us u/s 522(3). The original order of restoration was passed by the learned Magistrate within one month from the date of his judgment. In fact, the order was incorporated in the judgment itself. This order was set aside by the appellate Court and the order of the appellate Court setting aside the order is now under examination by us for correctness, legality and propriety, and if we were to hold that the order of the learned Sessions Judge was bad, we would merely be restoring the order of the original Court, that is, the order of the Magistrate, First Class, Alipore, which was passed within a month from the date of the judgment. Accordingly, the bar, referred to by Mr. Banerjee, does not trouble us in this case.

Coming back to the question whether the order of the learned Additional Sessions Judge was improper or incorrect or illegal, it is clear that the original fencing on one side of the temple compound no longer exists and as many huts have been erected on that side, it would certainly be very difficult to find out the original line of the ''fencing. Accordingly, it cannot be said that the learned Additional Sessions Judge was wrong in holding that there was vagueness as to the extent of land to be restored and the order would, therefore, be infructuous.

Accordingly, we do not think that the order of the learned Additional Sessions Judge was improper or illegal or bad in any other way and we therefore see no reason to interfere with that order.This revisional application, therefore, fails and the Rule is discharged.

P.K. Sarkar, J.

I agree.