Abdul Razzaq v. Emperor — 1946 DIGILAW 168 (ALL)

JUDGMENT Kaal, J. - This is a reference made by the learned Sessions Judge of Gonda recommending that an order passed by the Special Magistrate Gonda u/s 522 of the Code of Criminal Procedure on the 24th of October, 1945, directing the Station Officer, Balrampur, to put Tassaduq Husain in possession of a house of which he was found to be wrongfully dispossessed, be set aside. 2. The material facts lie within a short compass: Tassaduq Husain alias Kallu filed a complaint against one Abdul Razaq u/s 323/447 of the Indian Penal Code alleging that the accused had taken illegal possession of his house and used violence again this womenfolk. R.S. Lala Gopal Lal (sic)ah Honorary Special Magistrate, first class, Gonda, before whom the matter came up for consideration, convicted Abdul Razaq u/s 448 of the Indian Penal Code and sentenced him to pay a fine of Rs. 60 or in default to undergo rigorous imprisonment for three months. Abdul Razaq's wife and his servant were also convicted and sentenced to a fine of Rs. 20 each or in default to undergo rigorous imprisonment for one month. This order was passed on the 30th of June, 1945. The accused who had been convicted appealed against that order. The appeal was dismissed on the 10th of October, 1945, by the learned Sessions Judge of Gonda. On the 24th of October, 1945, Tassaduq Husain applied u/s 522 of the Code of Criminal Procedure for being put in possession of the house from which he was dispossessed by Abdul Razaq. The learned Honorary Special Magistrate passed an order the same day directing the Station Officer, police station, Balrampur to put Tassaduq Husain in possession. On the 29th of October, 1945, Abdul Razaq made an application to the Honorary Special Magistrate that possession of the house should not be restored to Tassaduq Husain. On this application the following order was passed: Board parties. I have passed orders on the 24th of October. 1945, on the application of Tassaduq Husain, opposite-party. Applicant can file revision of the order if he so chooses. 3. Tassaduq Husain thereupon filed an application for revision against the order of the Honorary Special Magistrate. It will be noted that the revision application was directed against the order dated the 29th October, 1945, and not against the order of the 24th of October, 1945, passed upon the application of Tassaduq Husaia. 3. Tassaduq Husain thereupon filed an application for revision against the order of the Honorary Special Magistrate. It will be noted that the revision application was directed against the order dated the 29th October, 1945, and not against the order of the 24th of October, 1945, passed upon the application of Tassaduq Husaia. 4. It appears that on the 23rd of November, 1945, Tassaduq Husain filed an application before the Sessions Judge of Gonda, in whose Court Abdul Razaq's revision application was pending praying that in case the order passed by the Magistrate dated the 24th of October, 1945, be held to be invalid, as it was passed after expiry of one month from the date of Abdul Kazaq'e conviction, the learned Sessions Judge might be pleased to pass an order restoring possession to him By this application Tassaduq Husain sought to invoke the aid of the provisions of Section 522(3) of the Code of Criminal Procedure in his favor. The reference which is before me was made in these circumstances. 5. The Sessions Judge was of opinion that the order passed by the Magistrate on the 24th of October, 1945, was without jurisdiction as it was passed after the expiry of more than one month from the date of Addul Razaq's conviction by that Court. He appears to have dismissed Tassaduq Husain's application of the 23rd of November, 1945, on the ground that it was a "belated application". It is not disputed that the learned Magistrate passed on the 24th of October, 1945 an order which he was not entitled to do under the provisions of Section 522 of the Code of Criminal Procedure as more than one month had elapsed from the date of Addul Razaq's conviction. The reason for the delay is to be found in the explanation submitted by the learned Sessions Judge. He states as follows; This revision (reference is to the revision pending before the Sessions Judge) arose out of the decision of a case No. 82 of 1945, Tassaduq Husain v. Abdul Razaq and Ors. decided on the 30th of June, 1945, by me sentencing accused to pay fines of 60/, 20/, and 20/, respectively. He states as follows; This revision (reference is to the revision pending before the Sessions Judge) arose out of the decision of a case No. 82 of 1945, Tassaduq Husain v. Abdul Razaq and Ors. decided on the 30th of June, 1945, by me sentencing accused to pay fines of 60/, 20/, and 20/, respectively. As I received orders from the District and Sessions Judge, Gonda, not to realise lints imposed till the decision of the appeal so no action could be taken u/s 522 of the Code of Criminal Procedure, within one month of the passing of my orders. The District and Sessions Judge Gonda decided the revision oh the 10th of October, 1946, and the result was communicated to me on the 24th of October, 1945, and on that very day Tassaduq Husain complainant filed an application for the restoration of the immoveable property u/s 522 of the Code of Criminal Procedure and it was within a month of the District and Sessions Judge's orders as I issue orders to S.O. Balrampur to restore the possession of the house. This is all that I have to submit. 6. I have before me an affidavit filed by Tassaduq Husain which shows that he had filed an application u/s 522 of the Code of Criminal Procedure for restoration of possession within one month of the date of Abdul Razaq's conviction, but as an appeal against that order was filed in the Court of the Sessions Judge, Gonda, and was still pending, the learned trial Court returned the aforesaid application directing the applicant to file the application after the decision of the appellate Court. 7. There is nothing to doubt the correctness of the statement contained in this affidavit. In these circumstances it appears to me to be pre-eminently a case in which, if it is possible to do so under the law, Tassaduq Husain should be given redress. 8. It was frankly conceded by Mr. Naimullah, Learned Counsel for Tassaduq Husain, that the order passed by the Magistrate was made beyond time. It cannot, therefore, be upheld. In these circumstances it appears to me to be pre-eminently a case in which, if it is possible to do so under the law, Tassaduq Husain should be given redress. 8. It was frankly conceded by Mr. Naimullah, Learned Counsel for Tassaduq Husain, that the order passed by the Magistrate was made beyond time. It cannot, therefore, be upheld. He contended, however, that this Court in exercise of its revision jurisdiction can pass an order to the same effect as was passed by the Magistrate inasmuch as the period of one month within which the Magistrate could pass an order for restoration of possession does not, in view of the provisions of Sub-section (3) of Section 522, apply to this Court. Dr. Qutubuddin Ahmad has strongly opposed this prayed. He contended that the expression "Court of appeal", "confirmation", "reference or revision" occurring in Section 522(3) of the Code of Criminal Procedure refer to a Court exercising jurisdiction in appeal, reference, or revision against the order of conviction and not to a Court to which a reference is made in respect of an application u/s 522 of the Code of Criminal Procedure. In support of his contention he has relied on Said Umar v. Abdul Qadir AIR 1930 Pesh. 7; Aswini Kumar Das Vs. Sasanka Mohan Bose, AIR 1932 Cal 750 and AIR 1932 210 (Lahore) ; on the other side Mr. Naimullah relies on the decision in Ratneshwar Singh v. King Emperor AIR 1925 Pat. 689; Namdeo Atmaram Teli v. Emperor AIR 1938 Nag. 316; Nihal Singh Vs. Emperor, AIR 1939 All 662 and Savlaram Sadoba Navle v. Dnyaneshwar Vishnu Chikne AIR 1942 Bom. 148. I have carefully examined these cases and find that though the decisions referred to by Dr. Qutubuddin Ahmad support his contention, there is no detailed examination of the provisions of Section 522(3) in any of these cases On the other hand the view upheld by the cases cited by Dr. Qutubuddin was examined by Beaumont, Chief Justice (with whom Wadia J. agreed) in the case of Savlaram Sadoba Navle v. Dnyaneshwar Vishnu AIR 1942 Bom. 148. Qutubuddin Ahmad support his contention, there is no detailed examination of the provisions of Section 522(3) in any of these cases On the other hand the view upheld by the cases cited by Dr. Qutubuddin was examined by Beaumont, Chief Justice (with whom Wadia J. agreed) in the case of Savlaram Sadoba Navle v. Dnyaneshwar Vishnu AIR 1942 Bom. 148. It was held by their Lordships that although there be not before the Court any application, in appeal or revision against the conviction of the accused still the High Court could under Sub-section (3) of Section 522 make an order for possession in revision against the order dismissing the application was made u/s 522(1) to the Magistrate more than one month after the date on which the conviction was recorded, and it was accordingly dismissed. 9. Their Lordships agreed with the view taken by the Patna and the Allahabad High Courts and made an order for restoration of possession. I respectfully agree with the view expressed there and hold that it is permissible in the present case to make an order on the application of the 23rd November, 1945, that possession of the house be restored to Tassaduq Husain. 10. The order passed by the Magistrate on the 24th of October, 1945, having been made beyond time is set aside. We gather from the order of reference made by the Sessions Judge that he dismissed the application of the 23rd of November, 1945 made by Tassaduq Husain. Ordinarily in a case where discretion has been exercised by a Subordinate Court, this Court will be loath to interfere with the exercise of such discretion. In the case before me however, it appears that certain facts were not taken note of by the learned Sessions Judge when he dismissed the application of the 23rd of November, 1945, as a "belated application". It does not appear to have been brought to his notice a fact which is proved by the affidavit filed by Tassaduq Husain-that originally he had made an application u/s 522 of the Code of Criminal Procedure before the Magistrate within 30 days of Abdul Razaq's conviction, and that application was returned to him with the direction that it should be presented again after the decision of the appellate Court was given. Nor does the Sessions Judge appear to have considered the facts mentioned in the explanation submitted by the Magistrate, It appears that Tassaduq Husain was hardly to blame; nor was there any lack of vigilance on his part. I therefore set aside the order of the learned Sessions Judge dismissing the application dated the 23rd of November, 1945, and make an order that possession of the house in question be restored to Tassaduq Husain. It appears that in pursuance of the order passed by the Magistrate on the 24th of October, 1945, Tassaduq Husain has already been put in possession. If that is so, his possession shall not be disturbed unless Abdul Razaq gets a decision in respect of his rights to possession from some proper Court. The reference made by the learned Sessions Judge is accepted subject to the observations made and the order passed.