Sharadendu Tiwari vs Ajay Arjun Singh, & Ors.

The present revisionist takes exception to the order dated 22.10.2010, passed by the Court of II Additional Sessions Judge, Mungaoli, District Ashoknagar, whereby while deciding Criminal Revision No.66/2009 the Court below has set aside the order dated 25.5.2009 passed by Sub Divisional Magistrate, Chanderi, (for brevity, the ''SDM'') in exercise of power under Section 145(6) of the Criminal Procedure Code, 1973 (for brevity, the ''CrPC'').

The facts leading to filing of the present revision application lie in a narrow compass. The present applicant claims to be the owner of the land in question in furtherance to allotment letter issued by the Kaji Bunkar Grih Nirman Samiti, Chanderi (in short, the ''Housing Society''). The case of the present applicant is that the Housing Society handed over the possession of the land in question, however, the new President of the Housing Society allotted the same land in favour of respondent No.1, due to which an altercation arose between the parties. Consequently, an application under AFR -( 2 )- Cr.R.No.69/2011 Section 145 of CrPC was made before the SDM, Chanderi. The SDM, Chanderi, handed over the possession of the land in question to an independent person, i.e., one Mr. Raees Khan, till the decision of the application. While this arrangement was in place, the present applicant filed a civil suit and an order dated 17.12.1998 was pronounced by the Civil Court in favour of the present applicant, which prima facie established the possession of the applicant. The order passed by the Civil Court was taken cognizance of by the SDM and the order dated 14.8.2000 was passed to drop the proceeding under Section 145 of CrPC. While concluding the proceedings, the SDM Chanderi instructed Raees Khan, who was handed over the possession of the land in question, till conclusion of the proceeding under Section 145 of CrPC, to return back the possession to the applicant.

The respondents proceeded to challenge the order passed by the SDM on 14.8.2000, in which a stay order dated 5.9.2001 was also passed with respect to the operation of the order dated 14.8.2000, however, the revision application was rejected by the Sessions Court on 10.12.2004 giving a stamp of approval to the order dated 14.8.2000.

It is borne out from the record that the instructions issued by the SDM on 14.8.2000 were not complied with. This non-compliance prompted the present applicant to move an application for the limited purpose of seeking fresh direction from the SDM to the Town Inspector, Chanderi, to ensure compliance of the order dated 14.8.2000. The SDM acceded to the prayer made by the present applicant and issued communication dated AFR -( 3 )- Cr.R.No.69/2011 25.5.2009 for instructing the Town Inspector.

The present respondents challenged the order dated 25.5.2009 by filing a revision application under Section 397 of CrPC before the Second Additional Sessions Judge, Mungaoli. The revisional court decided the revision application vide order dated 22.10.2010 and set aside the order passed by the S.D.M. on 25.5.2009. The Court below primarily assigned three reasons for interfering with the order dated 25.5.2009; firstly, the Court below concluded that more than nine years have lapsed since the order dated 14.8.2000 was passed and, therefore, any fresh proceeding arising from such order is barred by limitation. Secondly, the SDM became functus officio after dropping the proceeding under Section 145 of CrPC on 14.8.2000 and, therefore, the SDM proceeded without jurisdiction while passing the order dated 25.5.2009. Thirdly, the Court below concluded that before passing the order dated 25.5.2009 the SDM was under an obligation to issue notice to the present holder of the land in question even if the same was put in possession by the order of the Court.

The present applicant is aggrieved by the order passed by the Revisional Court below on the ground that the order dated 14.8.2000 had attained finality after dismissal of the revision by the Sessions Court vide order dated 10.12.2004 and, therefore, there was no requirement to carry out fresh proceedings by inviting all the parties for carrying out the compliance of the order dated 14.8.2000 for handing over the possession of the land in question in favour of the applicant. It has also been contended that the proceedings under Section 145 of CrPC were no doubt concluded even though the SDM AFR -( 4 )- Cr.R.No.69/2011 possessed ample power under Section 145(6) of CrPC to direct restoration of possession. Therefore, for this limited purpose, the SDM had jurisdiction to entertain the application. Lastly, it was contended that Section 145 of CrPC is silent about the period of limitation within which the powers under Section 145(6) of CrPC can be exercised. Therefore, in the present case, the limitation prescribed for execution will be applicable which is 12 years and from the record, it is clear that the application was made well within such time period.

To the contrary, learned counsel for the respondents supported the reasoning given in the impugned order and emphasized that the application moved by the present applicant is delayed and hence, it cannot be entertained by the SDM.

I have considered the rival contentions of the parties and have carefully examined the record.

The impugned order set out important questions of law which need to be answered for deciding the present revision application. The first question which is required for consideration is whether after conclusion of proceeding under Section 145 of CrPC, the SDM has no jurisdiction to entertain any application arising out of original proceeding ?

The answer to this proposition lies under Section 145 (6) of CrPC, which clearly bestows power to the SDM to restore the possession after the conclusion of proceeding under Section 145 of CrPC. This power has been recognised by the Calcutta High Court in the case of Khudiram Mandal vs. Jitendra Nath and another, AIR 1952 CALCUTTA 713, of which the relevant paragraph is reproduced herein below:-

AFR -( 5 )- Cr.R.No.69/2011 "61. In the second case, it is quite apparent that a further relief may be necessary. Merely declaring the right of a party to possess might not bring him actual possession and an order restraining the other parties from disturbing his possession would be meaningless unless he is restored to such possession. It is because of this that the amendment of 1923 gave power to the Magistrate to restore possession. On the other hand, a party may be content with an order for a declaration and an injunction because the other party might give up possession without further trouble or is driven to institute a suit, or for a variety of reasons upon which we need not speculate. But I find nothing in Section 145 (6) which makes it mandatory that an order for restoration of possession should form an integral part of the original order and be passed at one and the same time as the original order. The final order would be in the form given in Sch. V (Form 22) and later on, when a party is unable to get possession, he can apply to the Court to act under the last part of sub-s. (6) and restore possession to him. It is somewhat of an auxiliary order and if an analogy is permitted in the nature of execution."

This Court has also taken the similar view in the case of Ram Kripal vs. Ganesh Prasad, 1953 CrLJ 66, wherein in para 10, the following observation has been made :-

"When proceedings are dropped under S. 145 (5), Cr.P.C...., the Magistrate''s jurisdiction to act under Section 145 Cr.P.C. altogether ends and as such he can only pass an incidental order relating to attached property. He cannot enter into a minute examination as to the claims of the respective parties. If the record shows that the property was attached from the possession of a certain party the Magistrate must be deemed to have inherent jurisdiction to restore the possession of the property; by doing so he will be restoring the status quo AFR -( 6 )- Cr.R.No.69/2011 ante. If however the record does not show it then the only alternative for him is to pass an order that the attachment should be lifted without saying in whose favour the release was to be effective."

Consequently, the observation recorded by the Court below that SDM had become functus officio after passing of the order dated 14.8.2000 is not sustainable, as per the limited purpose of restoration of possession under Section 145(6) of CrPC, the SDM has power to entertain the application.

The next proposition which deserves consideration is whether the application under Section 145(6) of CrPC is in the nature of execution proceeding and, therefore, the period of limitation is 12 years ?

In order to answer this proposition, suffice it to say that this question has already been answered by the Hon''ble Supreme Court in the case of Shakuntala Devi vs. Chanoram Mehto and another, (2009) 3 SCC 310 , wherein following observation has been made:-

"26. The question which is now required to be considered is whether the High Court was right in quashing the order passed by the Magistrate, which was confirmed by the Sessions Judge, on the ground that the application made by the appellants under Section 145 (6) of the Code was barred firstly by limitation under Article 137 of the Limitation Act and also by virtue of Section 6 of the Specific Relief Act, 1963.

We are in agreement with Mr. Sanyal that the provisions of the Specific Relief Act had been misapplied by the High Court in holding that the appellants should have come for an order under Section 145 (6) of the Code within six months from the date of dispossession, as provided in Section 6 of the said Act, as the Specific Relief Act has no application to a proceeding under Section 145 Cr.P.C. AFR -( 7 )- Cr.R.No.69/2011

But the High Court has, however, taken a correct view with regard to the application of Article 137 of the Limitation Act to the facts of this case. The said Article is a Residuary provision which provides for a limitation of three years within which an order passed on any application for which no period with regard to limitation is provided elsewhere in the Third Division relating to application, can be challenged."

The observation made herein above renders it evidently clear that an application for restoration of possession under Section 145 (6) of CrPC is to be made within a period of three years in terms of Article 137 of the Limitation Act, 1963.

On cumulative consideration of the above, it is clear that in the facts of the present case the Revisional Court below erred in holding that for the purpose of restoration of possession, the SDM has become functus officio, however, the view with respect to the delay is in conformity with the observation made by the Hon''ble Supreme Court in the case of Shakuntala Devi (supra). The chronological appreciation of the facts of this case clearly indicated that the application moved in the year 2009 was barred by limitation as the same was moved beyond the period of three years which is prescribed under Article 137 of the Limitation Act.

Taking this view of the matter, the instant revision application is dismissed.