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1979 DIGILAW 1133 (ALL)

Haqiqulla v. Niaz Ahmad

1979-10-19

S.J.HYDER

body1979
JUDGMENT S.J. Hyder 1. IN a case of theft the Station Officer Incharge police station It was seized a truck bearing No. U.P.K. 1240. After investigation he submitted a final report and in consequence the case was dropped. 2. NIAZ Ahmad Opposite Party 1 and Haqiqullah applicant made two separate applications by means of which each of them claimed that the truck may be restored to his possession. The Magistrate after hearing the parties and on a perusal of the evidence produced by the parties passed an order dated 8th August 1977 directing that the truck shall be restored to the possession of Haqiqullah. Niaz Ahmad Opp. party feeling aggrieved by the said order preferred an appeal under Section 454 of the Code of Criminal Procedure Act 2 of 1974 before the Sessions Judge Niaz Ahmad Opposite Party applied for permission to file additional evidence and the said request was allowed by the court of appeal. On a consideration of the additional evidence produced before it the Court of appeal set aside the order of the Magistrate dated August 8, 1977. The Court of appeal directed that the truck shall be restored to the possession of Niaz Ahmad. Haqiqullah has preferred this revision against the order of the court below dated 19-1-1979. 3. ON behalf of the applicant Haqiqullah two arguments have been pressed before me in support of the: revision. In the first place the learned counsel has submitted that additional, evidence could not be taken by the court below in an appeal preferred under Section 454 of Code of Criminal Procedure. It has next been contended that the order dated August 8, 1977 had been passed by the Magistrate in the exercise of his powers under Section 457 CrPC and no appeal under Section 454 CrPC lay against the said order. The learned counsel for the opposite party has controverted both the submissions made on behalf of the applicant. In the alternative he has contended that the order passed by the Sessions Judge on 19-1-1978 may be treated to be an order passed in the exercise of its revisional jurisdiction under Section 397 of the Code of Criminal Procedure, and, even if production of additional evidence could not be allowed in an appeal filed under Section 454 of the Code, such evidence could be admitted by the Sessions Judge while exercising his revisional jurisdiction. In support of the submission made in the alternative, learned counsel has placed reliance on sub-section (1) of Section 399 of the Code. 4. CHAPTER XXIX of the Code, which comprises of Sections 372 to 394, deals with appeals. Section 372 lays down that no appeal shall lie from any judgment or order of a criminal court except as provided for by the Code or by any other law for time being in force. Section 373 provides for appeals from orders requiring security or refusal to accept or rejecting surety for keeping peace or good behaviour. Section 374 provides for appeals from orders of conviction passed by the different courts. Section 377 deals with appeals by the State Government against the order of sentence, while Section 378 empowers the State Government to prefer appeals against orders of acquittal in certain cases. There are some other sections in the said CHAPTER which permit appeal in certain other cases. Section 391 of the Code, which appears in the fasciculus of provisions dealing with appeals permitted under CHAPTER XXIV, inter alia, provides that in dealing with any appeal under this CHAPTER, the Appellate Court if it thinks additional evidence to be necessary shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is the High Court, by a Court of Sessions or Magistrate. It, therefore, follows from the language employed in Section 391 itself that additional evidence under the said section may be permitted by the court only when an appeal is preferred under any of the provisions contained in CHAPTER XXIX of the Code. Section 454 is included in CHAPTER XXXIV which bears the heading "Disposal of property." An appeal preferred under Section 454 cannot, therefore, be deemed to be an appeal preferred under CHAPTER XXIV. The court below was, therefore, not justified in admitting the additional evidence filed by Niaz Ahmad and deciding the appeal solely on the basis of such additional evidence. As already stated above the truck in dispute had been seized by the Station Officer incharge police station Itwa during the course of investigation. Seizure was reported by the Station Officer to the Magistrate under the provisions of the Code, however, a final report was submitted in the case which never reached the trial stage. As already stated above the truck in dispute had been seized by the Station Officer incharge police station Itwa during the course of investigation. Seizure was reported by the Station Officer to the Magistrate under the provisions of the Code, however, a final report was submitted in the case which never reached the trial stage. Section 452 of the Code empowers a court to make necessary orders for disposal of property at the conclusion of the trial. Section 453 of the Code lays down that when any person is convicted of any offence which includes, or amounts to theft, or receiving stolen property, and it is proved that any other person bought this stolen property from him without knowing or having reason to believe that the same was stolen and that any money has on his arrest been taken out of the possession of the convicted person the court may on the application of such purchaser and on the restitution of the stolen property to the person entitled to the possession therefor, order that out of such money a sum not exceeding the price paid by such purchaser be delivered to him. Section 454 of the Code permits an appeal by any person aggrieved by an order made by a Court under Section 452 or Section 453. No appeal is provided against an order passed under Section 457. Thus the contention of the learned counsel for the applicant, that no appeal under Section 454 of the Code lay against the order of the Magistrate dated August 8, 1977 must be upheld. 5. ON behalf of the opposite party it has been urged that even if no appeal lay against the order of the Magistrate dated August 8, 1977 a revision against the said order was legally competent. It was pressed upon me that I should treat the order of the Sessions Judge as an order passed in revision. Learned counsel submitted that the revisional powers of the Sessions Judge and that of the High Court are co-extensive. It was pressed upon me that I should treat the order of the Sessions Judge as an order passed in revision. Learned counsel submitted that the revisional powers of the Sessions Judge and that of the High Court are co-extensive. He drew my attention to sub-section (1) of Sec. 401 of the Code which reads as under:- "In case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may in its discretion, exercise any of the powers conferred on a court of appeal by Sections 386, 389, 390 and 391 or on a- Court of Sessions by Section 307, and, when the Judges composing the court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 292". 6. IN short the submission on behalf of (he opposite party is that even though no appeal was competent against the order of the Magistrate dated August 8, 1977; nevertheless the said order could be revised by the Sessions Judge. IN disposing of a revision the Sessions Judge had very wide powers including the power to admit additional evidence under Section 391 of the Code. The argument thus presented is prima facie attractive. It has, however, to be remembered that the two jurisdictions viz., the jurisdiction to hear an appeal and the jurisdiction to hear a revision are different and are governed by distinct principles. In the instant case the Sessions Judge treated the proceedings before him as an appeal and decided the said proceedings on the said assumption. While disposing of the said proceedings the Sessions Judge did not have in his mind the relevant considerations which apply in a case while deciding a revision. True it is that while hearing an appeal it was open to the Sessions Judge to treat the appeal as a revision and decide the proceedings before him in accordance with the well recognised limitations placed in exercise of revisional jurisdiction. He, however, did not do so. 7. True it is that while hearing an appeal it was open to the Sessions Judge to treat the appeal as a revision and decide the proceedings before him in accordance with the well recognised limitations placed in exercise of revisional jurisdiction. He, however, did not do so. 7. IN the case of Mohindar Singh v. The King, 1951 CrLJ 1483, Lord Greene while delivering the opinion of the Judicial Committee observed as follows :- "There appear to their Lordships to be a number of objections to this argument................Strict observance of the law as to jurisdiction is one of the fundamental rules in the administration of justice." 8. FOR the reasons stated above I am of the view that this court cannot treat the order passed in appeal as an order passed in the exercise of revisional jurisdiction. In passing the order impugned in this revision the Sessions Judge exercised the jurisdiction which was not vested in him under the law. Want of jurisdiction is too serious a matter to be lightly ignored. Such an order of the Sessions Judge cannot be sustained and must be set aside. The result is that this revision succeeds and is hereby allowed. The order of the Sessions Judge in Cr. A. No. 97 of 1977 dated 19-1-1978 is set aside and the order of the Magistrate in Misc. Case No. 1 of 1977 dated August 8, 1977 is restored. Revision allowed.