Cheriyan v. State — 1951 DIGILAW 42 (KER)

Judgment :- This Revision Petition is filed by the two petitioners in Criminal Miscellaneous Petition No. 707 of 1951 on the file of the Division First Class Magistrate Kottayam, against the order passed by the said Magistrate on 18th March 1951. The respondents in this Court are No.1 the State and Nos. 2, 3 and 4 counter-petitioners Nos. 1, 2 and 3 in the aforesaid petition in the court below. One Philipose died on 26.2.1951. Admittedly he died testate. Whether he executed only one will or besides that one he executed another at a later date making dispositions of his property in a manner different from that contained in the first will is the dispute between the parties that has led to quarrels and these proceedings in the Magistrate's Court. On 6.12.1950 the said Philipose deposited a will before the appropriate authority under the Travancore Registration Act. After his death the said will was registered on 28.2.1951. Under the terms of this will the property in dispute in these proceedings is bequeathed to the 2nd respondent here that is the first counter-petitioner in the court below called Kunjamma Philipose who is said to be a concubine of the deceased. Respondents 3 and 4 here namely counter petitioners 2 and 3 in the court below are her near relations. On 6.1.1951 there appears to have been a settlement made between the said Philipose and his mother. The petitioners are the children of the brother of the said Philipose. Petitioners claim that the said Philipose executed a will on 26.1.1951 bequeathing inter alia the disputed properties to them. On 13.3.1951 the said will was produced by them for registration. On the same day the aforesaid M.P. 707/51 was filed by them in the lower court. The learned First Class Magistrate sent the petition to the Police for enquiry and report. The Police submitted a report after enquiry recommending action under S.43 of the Travancore Criminal Procedure Code, corresponding to S. 145 of the Indian Code and suggesting that meanwhile action may be taken against the petitioners under S. 142 of the Travancore Criminal Procedure Code. The Magistrate did not take action under S. 142 not being specially empowered by the Government so to do. In the course of their enquiry the police on 15.3.1951 took statements from the aforesaid Kunjannamma as also from the first petitioner Cheriyan Verghese. The Magistrate did not take action under S. 142 not being specially empowered by the Government so to do. In the course of their enquiry the police on 15.3.1951 took statements from the aforesaid Kunjannamma as also from the first petitioner Cheriyan Verghese. In the course of her statement the said Kunjannamma mentioned that in the afternoon of the 13th March the petitioners came and took away the bunch of keys of the locks in the shop from the table as also the key of the table itself and that therefore she found other lock and key with which she locked the shop that evening. The first petitioner mentioned in his statement that on the evening of the 13th March after the shop had been locked by him the counter-petitioners broke open the lock, entered the shop and carried away certain account books, invoices, money etc. In this way each attempted to explain the other party's evidence of possession. On 15.3.1951 the Police prepared a mahazar of the shop in question wherein a business in tea was being carried on. The mahazar shows that counter-petitioner Thomas was seen sitting in the chair near the table in the shop and transacting business. The police submitted the report to the Magistrate on 16.3.1951 in the course of which they say: 2. Respondents 3 and 4 lay no claim to the properties. They say that they were managing the business during the life time of the late Philipose and that they continue the said management under the 1st respondent. Their management would enure to the benefit of whichever party is found to be entitled to the properties. 3. After the receipt of the report at 7 P.M. on 16.3.1951 the learned Magistrate posted the case for hearing to the next day, that is 17.3.1951. On 17.3.1951 the learned Magistrate recorded the report as follows: "Both parties and their Advocates are not present. Issue proceedings under S.43 Criminal Procedure Code. At this stage Sri. N. Govinda Menon appeared for the counter-petitioners, George K. Nair appeared for the petitioners. Both of them have been heard. Necessary orders could be passed after perusing the records and considering the arguments advanced tomorrow." On the next day that is on 18.3.1951 the Magistrate passed the order that has led to this Revision Petition. At this stage Sri. N. Govinda Menon appeared for the counter-petitioners, George K. Nair appeared for the petitioners. Both of them have been heard. Necessary orders could be passed after perusing the records and considering the arguments advanced tomorrow." On the next day that is on 18.3.1951 the Magistrate passed the order that has led to this Revision Petition. In this order the learned Magistrate considers the merits of the claims put forward by either party as regards the title to and possession of the disputed shop and business, considers the documents produced by the parties, the report and other papers filed by the Police in the light of the arguments advanced and comes to the conclusion in paragraph 10 as follows: "On a consideration of all the above facts and circumstances it is clear that the shop and the business is in the actual possession of the counter-petitioners and that the claim of possession of the petitioners is not based on any fact. There is in reality therefore no dispute as to possession of the shop and properties therein or the right to conduct the business therein and that the claim of the actual possession set up by the petitioners under the authority of an unregistered will the genuineness of which is itself questioned by the side of an existing valid registered will is a mere pretence. If in such a case the property is attached and taken possession of under S.43 Criminal Procedure Code the petitioners do not loss anything while irreparable injury and loss will be caused to the counter-petitioners and to their business. I therefore hold that action under S.43 Crl. P.C. is neither called for nor justified in the circumstances of this case." He winds up the order by the last paragraph No. 11 as follows: "The next question is as to what is the appropriate action to be taken against the petitioners to prevent a breach of the peace. This court is not competent to pass an order under S. 142 Crl. P.C. Further it is an emergency measure which I think is unnecessary in the circumstances of this case. C1.10 of S.43 enables action under S. 103 Crl. P.C. in a case of this kind. This court is not competent to pass an order under S. 142 Crl. P.C. Further it is an emergency measure which I think is unnecessary in the circumstances of this case. C1.10 of S.43 enables action under S. 103 Crl. P.C. in a case of this kind. If the petitioners are aggrieved and are desirous of speedy remedy it is open to them to move the civil court immediately and obtain appropriate orders to safeguard their interests. If without so doing the petitioners still persist in taking law into their own hands and disturb the possession of the counter-petitioners and thereby cause or attempt to cause disturbance of peace I direct the Police shall report for action under S. 103 Crl. P.C." 4. Mr. T.K. Narayana Pillai appearing for the 2nd respondent raised a preliminary objection that the revision petition is not maintainable because the order sought to be revised is not a judicial order and cannot therefore be revised by the High Court. Mr. P.I. Simon the learned counsel for the petitioners meets the preliminary objection by stating that the order is really a judicial one and that even if the order be not judicial the revision petition is nevertheless maintainable. In support of the second contention he relies upon the decision of the erstwhile Travancore High Court in Dr. Thomas Thomas v. P.M. Mani (18 T.L.J. 940) which follows an earlier decision of the same High Court in Issac Ninan v. Sarkar (21 T.L.R. 85) which is a decision of a Full Bench presided over by Sadasiva Iyer, C.J. In my judgment the order passed is a judicial order. Even if the order be regarded as not strictly judicial I hold that a revision before the High Court is maintainable. In S. 362 of the Travancore Criminal Procedure Code corresponding to S. 439(1) of the Indian Code relating to the High Court's powers of revision the wording is "In the case of any proceeding" the record of which has been called for by itself or which has been reported for orders or which otherwise comes to his knowledge, the High Court may in its discretion exercise powers " The words in the previous Act were "Judicial proceedings" which were replaced by the words any proceeding". This change of the words "Judicial" into "any" is significant and supports the view that I have taken. This change of the words "Judicial" into "any" is significant and supports the view that I have taken. The aforesaid decisions relied upon by Mr. Simon also support the same view. In Harbune Narain v. Muhamad Sayed (A.I.R. 1926 Patna 51) where a Magistrate passed the order on page 52 Col (1). "I consider that the second party are in possession of 40 bighas of the disputed land. The others are forbidden not to interfere with their possession. If they do they will be proceeded against under S. 107 Criminal Procedure Code. They had better go to civil court if they have any rights." Which was sought to be revised by the High Court, Machpherson, J. said on page 52 Col. (2). "It is difficult to see that the order now challenged is any thing else than a thinly disguided order under S. 145. He decided a question of disputed possession of the party in whose favour he decided, directing the opposite party to the civil court. He could not do this executively. The mere fact that he proposed to enforce his order by action under S. 107 of the Crl. P.C. instead of by a prosecution under S. 188 of the Penal Code hardly affects the matter ................................................................................................................................................................................... . ................................................................................................................................................................................... . I am constrained to the conclusion that the Sub-Divisional Magistrate acted judicially and passed without jurisdiction an order which he could only pass under S.145". I am in respectful agreement with the opinion expressed in the above case. I overrule the preliminary objection. Mr. Simon contends that the order sought to be revised was passed on 18.3.1951 which was a sunday and that day being a die non the order is void. My attention has not been drawn to any authority in favour of the contention. S. 366 of the Indian Criminal Procedure Code which is word for word the same as S. 302 of the Travancore Code provides that: (1) The judgment in every trial in any criminal court of original jurisdiction shall be pronounced or the substance of such judgment shall be explained, a) in open court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders; and b) 5. The expression in open court refers to the place at which and the manner in which the judgment should be pronounced. The expression in open court refers to the place at which and the manner in which the judgment should be pronounced. As to the time of pronouncement of judgment, the only provision is that notice should be given of the day therefore if not pronounced immediately. There is no prohibition against pronouncing judgment on Sundays or other holidays. There is no complaint in this case that parties had no notice of the day fixed for pronouncing the order. In England no doubt Sunday is a die non under the common law and all judicial work on that day is prohibited by statute. (See the Lord's Day Act XXIX Car. 2. C. 7) and the Sunday Observances Act of 1676). These statutory provisions are not applicable to India. See Paramshook Das v. Rood Dowlah Bahadur (7 M.H.C.R. 285). Registration of plaints and sale of property on Sundays have been held to be not illegal. See 7 B.L.R. App. 72;16 W.R. 231; 3 A 235. In Venkatesa Iyengar v. Komalammal (22 M.L.J. 212) Sundara Iyer and Spencer, JJ. held that judgment in a civil case pronounced on a Sunday was not invalid for that reason. In America judgments pronounced during vacation are void but the reason for that is, as pointed out in Wells on jurisdiction p. 125, that there are express statutory provisions prohibiting pronouncement of judgments and doing other judicial acts at other than term time. We are untramelled by such statutory provisions and courts in India have been doing judicial acts and recognising their validity on Sundays and other holidays. 6. The first contention urged by Mr. Simon against the validity of the order must therefore be repelled. The next contention urged by Mr. Simon is that the order is bad being in essence one under S.43 without compliance with the formalities necessary for proceedings thereunder. Mr. T.K. Narayana Pillai the learned counsel for the 2nd respondent contended that there is no scope for any order under S.43 because the operation of that section would be attracted only in a case where a dispute likely to cause breach of the peace exists concerning any land or water or boundaries thereof. Mr. T.K. Narayana Pillai the learned counsel for the 2nd respondent contended that there is no scope for any order under S.43 because the operation of that section would be attracted only in a case where a dispute likely to cause breach of the peace exists concerning any land or water or boundaries thereof. It is contended that in this case the dispute relates only to a business in tea which is movable property and that therefore the non-compliance with the formalities prescribed by S.143 will not vitiate the order of the learned Magistrate. This contention does not appear to have been raised in the court below. Paragraph 10 of the order of the learned Magistrate extracted above clearly shows that the subject matter in dispute consisted of a shop and the business conducted therein and that it is not confined to the business independently of the shop in which the said business was transacted. The bunch of keys alleged to have been removed by the petitioners in the statement of Kunjannamma Philipose contained keys of the shop. The mahazar prepared by the police in the course of their enquiry is the mahazar not merely of the business that is of the movable property dealt with in the business but relates equally to the premises that is the shop wherein the business was being transacted. It is clear that the subject matter in dispute in this case is the shop as well as the business conducted in that shop. Mr. Narayanan Pillai did not contend that if the shop wherein the business was being conducted is the subject matter in dispute the operation of S.43 of the Criminal Procedure Code will not be attracted. It is clear that the shop is the subject matter in dispute as well as the business conducted in that shop. 7. Mr. Narayana Pillai also contended that SS.43 and 103 of the Travancore Criminal Procedure Code corresponding to Ss. 145 and 107 of the Indian Code are not mutually exclusive, that the Magistrate is entitled to take action under S. 103, even if there is ground for taking action under S.143, and it is left to the Magistrate who is bound to maintain the peace in the locality to decide as to the appropriate course of action in a particular case. Mr. Mr. T.K. Joseph appearing for respondents 3 and 4 contended that the learned Magistrate is not bound to accept the Police report in toto that the person to be satisfied as to whether action under S.43 is called for or not is the Magistrate and that the High Court is not entitled to direct action to be taken under S.143. A reading of the order makes it clear that in substance the learned Magistrate has passed an order under S.143. He comes to the conclusion in favour of the respondents on a consideration of the documentary evidence placed before him and the attendant circumstances brought to his notice by the advocates appearing on either side as also by the Police report, the mahazar and the statement of two of the parties taken by the police as already mentioned. Having come to the conclusion that the case set up by the respondents is true and that the title to and possession of the properties is as they contend with them the learned Magistrate is led to say that in reality therefore there was no dispute as to possession of the shop and the properties therein. The fact that an existing dispute between the parties can be easily resolved in favour of one of them cannot make the dispute any the less existent. What S.43 requires is only that a dispute should exist and not that a proper dispute or one difficult to decide should exist. It is only in case where the lands in question are admittedly or indisputably in the possession of one of the parties and the party out of possession attempts to trespass into the property that S.43 cannot be applied. The time at which the court has to consider as to whether a dispute exists or not is at the time of the commencement of the proceedings and before considering the merits of the dispute and reaching a conclusion upon it. The decisions in 1 T.L.T. 529,18 T.L.J. 940 and A.I.R. 1926 Pat. 51 relied upon by Mr. Simon support the contention raised by him. In my judgment the order passed by the learned Magistrate is in essence one under S.43 and that the formalities prescribed for a decision under that section not having been complied with the order cannot be sustained and should be set aside. 51 relied upon by Mr. Simon support the contention raised by him. In my judgment the order passed by the learned Magistrate is in essence one under S.43 and that the formalities prescribed for a decision under that section not having been complied with the order cannot be sustained and should be set aside. The direction contained in paragraph 11 of the learned Magistrate's order to the effect that if the petitioners attempt to trespass into the possession of the respondents the Police will submit a report for starting proceedings under S. 103 is a corollary to the conclusion recorded by the learned Magistrate in paragraph 10 as to the non-existence of a dispute, so as to attract the operation of S.143. That conclusion having been found to be erroneous and liable to be set aside the corollary cannot survive. 8. The order sought to be revised is therefore set aside and the case sent back to the learned Magistrate for disposal according to law. One fact recorded in the report submitted by the Police namely that after the mahazar was prepared on the 15th March the shop was shut and both parties put their locks and locked the shop separately with the result that without the concurrence of both the parties it was not possible for any of them to open the shop or to do any business therein appears to have escaped the notice of the learned Magistrate. As I am merely sending back the case for consideration and disposal by the learned Magistrate according to law it is unnecessary to consider the other contentions raised on behalf of the respondents. 9. Mr. Sankara Pillai the learned Public Prosecutor who appeared for the first respondent State submitted that he accepted the arguments addressed by Messrs Narayana Pillai and Joseph on behalf of the respondents and that he has no separate argument to raise. Remanded.