FELICIDADE D'MELLO v. EUSTAQUIO ALFONSO D'SOUZA — 1977 DIGILAW 196 (BOM)

JUDGEMENT This is an application to revise the order dated 22-8-1977 of the Sessions Judge, Panaji, setting aside the order of J. M. F. C., Mapusa dated 7-4-77 with regard to the disposal of a hall of a house. 2. It appears that on the basis of a charge sheet submitted by the Mapusa Police at the instance of applicant No. 2, respondent No. 1 and three others were put on trial for offences punishable under Ss. 454, 323 r/w S. 34 of the I. P. C. The allegations against them were that they with the intention of taking forcible possession broke into the hall in the possession of the complainant (applicant No. 2) and assaulted her and her mother. The case ended in an acquittal by order dated 8-1-1977. 3. The police as it appears, locked up the hall during investigation. The complainant put in an application before the trial of the case commenced, requesting the Court for issue of direction to the Police to hand over vacant possession of the hall together with the key to her. The J. M. F. C. then in charge of the Mapusa Court by order dated 12-4-1973 allowed the prayer. 4. On 27-1-1977 after acquittal of the case, relying on the findings of the Court, recorded in the judgment respondent No.1 made an application in terms of S. 517 (1) of the Cr. P. C. to the J. M. F. C., Mapusa to order re-delivery of the hall to him. The learned Magistrate rejected the said application on 7-4-1977, on the following three grounds:- (i) The hall in question was not produced in Court and as such S. 451 or 452 of the new Code are not attracted; (ii) There is no provision to change his judgment, (in his opinion he thought that a change to the judgment would be necessary if the application was allowed); (iii) Since the case has not ended in conviction no order could be passed either under S. 522 (old) or 456 of the new Code. 5. Against the aforesaid order, respondent No. 1 filed Criminal Appeal No. 82/ 1977 before the Sessions Judge who passed the impugned order. 6. The first contention of Mr. R. D. Khalap is that as appellate Court the Sessions Judge was not justified in interfering with the order of the lower Court. 5. Against the aforesaid order, respondent No. 1 filed Criminal Appeal No. 82/ 1977 before the Sessions Judge who passed the impugned order. 6. The first contention of Mr. R. D. Khalap is that as appellate Court the Sessions Judge was not justified in interfering with the order of the lower Court. In other words according to him to this case provisions of the old Code will apply and as no appeal lay under S. 520 of the old Code against an order made under S. 517 of the same Code, the order of the Sessions Judge was without jurisdiction. His second contention is that no attachment of the hall having been made by the police, who merely locked it to secure safety of the articles kept therein after the complainant was removed to the hospital for treatment and the accused persons were taken to custody and the same having not been produced in Court, did not become property in terms of S. 517, the learned Sessions Judge could not pass an order of the type he has passed. The order therefore deserves to be set aside. 7. As against this Mr. M. E. Rao, the learned counsel for the respondent No. 1 has submitted that the appeal to the Sessions Court is competent for S. 520 gives supervisory powers under which it can modify or alter an order of subordinate Courts passed under S. 517 (1) of the Code and pass its own order as it thinks just. For this he has placed reliance in the case of Shantaram Govindram v. State (AIR 1961 Madh Pra 1) : (1961 (1) Cri LJ 86). As regards the contention that Section 517 (1) does not apply to immovable property, he has placed reliance in the case of Narasingha Rou v. Sricharan Panda, ( AIR 1967 Ori 182 ) : (1967 Cri LJ 1549). He has further supported the order of the Sessions Judge on merits. 8. The points require careful scrutiny. It has been held in the case of Narasingha Rou v. Sricharan Panda (1967 Cri LJ 1549) (Ori). "Section 517 (1) does not confine itself to moveable property. It speaks of any property which includes both moveable and immovable. If S. 522 (1) is specifically confined to immoveable property, there was no difficulty for the Legislature in clearly confining S. 517 (1) to moveables. "Section 517 (1) does not confine itself to moveable property. It speaks of any property which includes both moveable and immovable. If S. 522 (1) is specifically confined to immoveable property, there was no difficulty for the Legislature in clearly confining S. 517 (1) to moveables. Further Section 522 (1) covers only cases ending in conviction wherein dispossession of the property took place by application of criminal force or intimidation by an accused. Every other class of dispossession of immoveable property comes within the sweep of S. 517 (1)." 9. The above view of the Orissa High Court is based on the view expressed by the Madhya Pradesh High Court in the case of Ramibai v. Nathu (AIR 1961 Madh Pra 25): (1961 (1) Cri LJ 94). The relevant observation of their Lordships are contained in Para. 6 of the judgment which may be quoted as under:- "Paragraph (6):- Section 517 of the Cr. P. C. provides for the disposal by the Court of the property produced before it or in its custody (which I would understand in charge as well). This section does not speak of moveable property only, but of property generally, including immoveable) though often it would be the former.........." There is therefore no doubt that S. 517 of the Cr. P. C. includes both moveable and immoveable property. 10. As regards non-production of the hall in the Court, I do not think, this will prevent the Court from dealing with it in an application filed before it under S. 517 (1), for the Court gets jurisdiction to deal with the property which is not only produced before it, but regarding which an offence appears to have been committed. Therefore even though the hall in this case has not been produced and which could not have also been produced, but nevertheless the Court is not precluded from dealing with it when moved to pass an order in terms of S. 517 (1) of the Code because the dispute which led to the criminal case is in relation to the said hall. 11. Next turning to the maintainability of the appeal before the Sessions Judge, the contention raised by Mr. Khalap, the learned counsel for the applicants seems to have great force. 11. Next turning to the maintainability of the appeal before the Sessions Judge, the contention raised by Mr. Khalap, the learned counsel for the applicants seems to have great force. There appears to be a sharp conflict of views regarding the meaning of provisions of S. 520 where no appeal is filed either against an order of conviction or an order of acquittal passed by the Trial Court. One view is that in such cases the Court to which appeals ordinarily lie from the order of the trial Court cannot pass an order under Section 520 as if appeal has been filed merely against the order of the Trial Court under Section 517, the only proper course is to refer the matter to the High Court in its revisional side. The other view is that the appellate Court can pass an order under S. 520 modifying altering or annulling the order of the trial Court under S. 517 without having to deal with any appeal. Despite the preponderance of the authorities on the latter view, the Punjab High Court in the case of Sheodan v. Pirdan. (AIR 1963 Punj, 167) : (1963 (1) Cri LJ 467) chose to follow the former view which according to their Lordships was the correct view. When a similar matter came up before the Orissa High Court, it also chose to join it on the line of the Punjab High Court's view (See AIR 1965 On 199 : (1965 (2) Cri LJ 660). There appears to be a third view expressed by the Madhya Pradesh High Court in the case of Shantaram Govindram v. State, (AIR 1961 Madh Pra 1) : (1961 (1) Cri LJ 86) cited by the learned counsel for the respondents. His Lordship has said that S. 520 Cr. P. C. does not enable the superior Court to entertain an appeal properly so called but nevertheless it gives supervisory power under which it can modify or alter the order of the sub-ordinate Court under S. 517 (1) of the Cr. P. C. and pass its own order as it thinks just. It is further held that a superior Court for the purpose of S. 520 of the Code would be one to which appeals generally lie and not necessarily the one to which will lie the appeal from that particular judgment appropos of which the order of the Trial Court is passed. It is further held that a superior Court for the purpose of S. 520 of the Code would be one to which appeals generally lie and not necessarily the one to which will lie the appeal from that particular judgment appropos of which the order of the Trial Court is passed. I find myself unable to agree with the view expressed by his Lordship of the Madhya Pradesh High Court for the reason that it ignores the source of the supervisory power of the superior Court. This aspect of the question has been dealt with in the case of Jahar Panigrahi v. Ula Panigrahi, ( AIR 1965 Ori 199 ) : (1965 (2) Cri LJ 660). After examining the position his Lordship observes as follows (at p. 661 of Cri LJ): "It is thus manifest that though the Sessions Judge has got power of superintendence under S. 435, Criminal P. C.. he has no power to finally dispose of matters unless they come within the purview of Ss. 436 and 437, Cr. P. C. The learned Sessions Judge missed this point and interfered with the final order passed by the Magistrate under S. 517 (1), Cr. P. C. The learned Sessions Judge had no jurisdiction to quash the order of the learned Magistrate (See AIR 1963 Punj 167 (paras 7 and 9) : (1963 (1) Cri LJ 467)). The judgment of the learned Sessions Judge must accordingly be set aside." Relying on the aforesaid decision, I am inclined to hold that the learned Sessions Judge had no jurisdiction to quash the order of the learned Magistrate without making a reference to the High Court. 12. Next coming to the merits it is undoubtedly correct that the learned Magistrate whilst acquitting the accused came to the conclusion that there was no proof that P. W. 1 and P. W. 3 (i. e. the petitioner and her mother) were in possession of the hall and the learned Sessions Judge relying on the above said finding of the Court below says that the learned Magistrate should have straightway granted the application dated 27-1-77 on the basis of his aforesaid conclusion. Since the order of acquittal is not under challenge I think it will be inappropriate on the part of this Court to express any opinion about the correctness of the aforesaid conclusion. Since the order of acquittal is not under challenge I think it will be inappropriate on the part of this Court to express any opinion about the correctness of the aforesaid conclusion. Suffice it to point out a significant feature in the evidence of the case and this is that even D. W. 1 in his evidence has clearly stated that half of the hall was in the occupation of Mrs. D'Mello and half was under repairs and accused No. 1 was repairing the same with some masons. It cannot therefore be said that there was no material on the record in support of the complainant's claim to possession of the hall. The aforesaid statement of D. W. 1 to a large extent rules out the story of the complainant about the possession of the hall being frivolous and untrue. It may be that she may not have been in possession of the whole hall as it may appear with reference to the evidence of P. Ws. 1. 3 and other circumstances referred to by the learned Sessions Judge, but it cannot be said conclusively that the complainant was not at all in possession. To me it appears that there was acute dispute between the parties over possession of the hall, one party trying to maintain possession to the exclusion of the other and it is this scramble for possession which culminated in the criminal case. Such being the state of things, it cannot be said that the direction of the Court to the police to deliver the house to the complainant is absolutely incorrect so as to be set aside by passing another order. Further it appears that there is a civil suit pending between the parties regarding possession of the hall. It may be stated here that it was quite open to the Magistrate to have passed an order in terms of S. 517 because the order passed on 12-4-77 was an interim one under Section 516. But all the same the disposal of the application dated 27-1-77 could be taken as disposal under S. 517 and for the reasons already stated, the Sessions Judge had no power to pass it completely without making a reference to the High Court. 13. But all the same the disposal of the application dated 27-1-77 could be taken as disposal under S. 517 and for the reasons already stated, the Sessions Judge had no power to pass it completely without making a reference to the High Court. 13. For the reasons stated above the order of the learned Sessions Judge cannot be upheld and in the result the same is hereby set aside and the revision is allowed. Revision allowed.