Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 243 (MP)

Mullobai v. State of M. P.

2010-02-26

I.S.SHRIVASTAVA, S.K.GANGELE

body2010
ORDER S.K. Gangele, J. 1. The Petitioner has filed this petition challenging the order (Annexure P-6), dated 31-7-2008, by which the learned VIIth Additional Sessions Judge, Gwalior dismissed the Criminal Revision No. 392/2007 of the Petitioner on the ground that the Petitioner had no locus standi to file the criminal revision. 2. A proceeding under Section 145 of the Code of Criminal Procedure was initiated by the Police on the ground that there was a dispute in regard to possession of an agricultural land of Survey Nos. 1450, 1451 and 1452 of area 5 bigha and 19 biswas situated at Village Bilara, Police Station Hastinapur, District Gwalior. The Sub-Divisional Officer vide order dated 17-7-2005 declared that the party No. 1-Dwarika Prasad and Damodar were in possession over the land and the authority further restrained the party No. 2-Panchoo and Ramhet, s/o of Panchoo from interfering with the possession of the party No. 1. The party No. 1-Dwarika Prasad and Damodar contended before the Sub-Divisional Magistrate that they purchased the land vide registered sale-deed dated 11-4-2005 from Inderpal and Satyapal. They further contended that they had also got possession over the land and their names were also mutated as owner of the land. In the aforesaid proceedings, before the Sub-Divisional Magistrate, the Petitioner was not joined as a party. Although, the Petitioner filed a civil suit before the Civil Judge Class II for declaration and permanent injunction, she pleaded that the sale-deed executed in her name was null and void. In the aforesaid civil suit, party No. 2-Panchoo and Ramhet were added as Defendant Nos. 1 and 2 and party No. 1-Dwarika Prasad and Damodar were added as Defendant Nos. 8 and 9. The Plaintiff-Petitioner in the aforesaid civil suit further pleaded that her father Gadoo was the owner of the land area 17 bighas and 6 biswas situated at Village Bilara. District Gwalior including the lands of Khasra Nos. 1451, 1452 and 1450. She also pleaded that her father had four children, namely, Plaintiff and her sister Saraswati and her brothers Panchoo and Gayaram. Saraswati and Gayaram were died issueless and after death of Gayaram and Saraswati, the wife of Gayaram. Smt. Katori Bai, Plaintiff and her brother Panchoo became the owner of the land and they have one-third share in the land. She also pleaded that her father had four children, namely, Plaintiff and her sister Saraswati and her brothers Panchoo and Gayaram. Saraswati and Gayaram were died issueless and after death of Gayaram and Saraswati, the wife of Gayaram. Smt. Katori Bai, Plaintiff and her brother Panchoo became the owner of the land and they have one-third share in the land. She further submitted that she did not execute any sale deed in favour of anybody and some forged sale-deed was executed on behalf of her. She also filed an injunction application under Order 39 Rules 1 and 2 of Code of Civil Procedure in the aforesaid proceedings. The Trial Judge vide order dated 24-7-2006 granted an injunction in favour of the Petitioner to the effect that the Defendants be not alienated the land to other persons during the pendency of the suit. In the aforesaid suit proceedings, the Defendant Nos. 8 and 9-Dwarika Prasad and Damodar also filed temporary injunction application under Order 39 Rules 1 and 2 of the Code of Civil Procedure and that application was rejected by the Trial Judge vide order dated 24-7-2006. 3. The Petitioner in the criminal revision contended that she was a necessary party in the proceedings under Section 145 of Code of Criminal Procedure and the Magistrate had no power and jurisdiction to pass an order in proceedings under Section 145 of the Code of Criminal Procedure because the matter was subjudice before the Civil Court, hence, in such circumstances, the proceedings under Section 145 of Code of Criminal Procedure ought to had been dropped. The aforesaid criminal revision has been dismissed by the Additional Sessions Judge on the ground that the Petitioner was not a party in the proceedings initiated under Section 145 of Code of Criminal Procedure, hence, she has no locus standi to file the criminal revision. 4. Learned Counsel for the Petitioner has submitted that the Petitioner is an aggrieved person because her right has adversely been affected by the order passed by the learned Magistrate, hence, a revision against the aforesaid order on behalf of the Petitioner is maintainable. 5. Contrary to this, learned Counsel for the Respondent Nos. 5 and 6 has submitted that the Petitioner had no locus standi to file the criminal revision and the Additional Sessions Judge has rightly dismissed the criminal revision of the Petitioner. 6. 5. Contrary to this, learned Counsel for the Respondent Nos. 5 and 6 has submitted that the Petitioner had no locus standi to file the criminal revision and the Additional Sessions Judge has rightly dismissed the criminal revision of the Petitioner. 6. Section 397 of Code of Criminal Procedure prescribes powers of revision of the High Court or Sessions Judge. The relevant Section is as under: 397. Calling for records to exercise powers of revision.--(1) The High Court or any Sessions Judge may call for and examine the record of any proceedings before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. Sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence or order be suspended and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. 7. Section 399 of the Code of Criminal Procedure further enumerates the powers of the Sessions Judge of revision, which is as under: 399. Sessions Judge's Powers of revision.--(1) In the case of any proceeding the record of which has been called for by himself the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1), the provisions of Sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge. (3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceedings by way of revision at the instance of such person shall be entertained by the High Court or any other Court. 8. (3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceedings by way of revision at the instance of such person shall be entertained by the High Court or any other Court. 8. It is clear from the provisions of Section 399 of Code of Criminal Procedure that the power under Section 399 of the Code of Criminal Procedure is akin to the powers of revision of the High Court. Section 401 of the Code of Criminal Procedure, prescribes power of the High Court which is as under: 401. High Court's powers of revision.--(1) In the case of any proceeding 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 and 391 or on a Court of Session 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 392. 9. Section 399(3) of Code of Criminal Procedure clearly stipulates that any person can submit an application for revision before the Sessions Judge. In this context, 'Any person' means an aggrieved person. The Hon'ble Supreme Court in the case of Bar Council of Maharashtra v. Dabholkar etc. etc., reported in AIR 1975 SC 2092 , has held as under with regard to 'a person aggrieved' in the context of Sections 37 and 38 of the Advocates Act, 1961: The meaning of the words "a person aggrieved" may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved if a legal burden is imposed on him. The meaning of the words "a person aggrieved" is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. Again a person is aggrieved if a legal burden is imposed on him. The meaning of the words "a person aggrieved" is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality. The words "persons aggrieved" in Sections 37 and 38 are of wide import and should not be subjected to a restricted interpretation of possession or denial of legal rights or burdens or financial interests. 10. In the context of Code of Criminal Procedure, in our opinion, an aggrieved person means a person, who would be held to be aggrieved by a decision if that decision is materially adverse to him. In the facts of the present case, it has to be seen whether the order of the Magistrate passed in a proceeding under Section 145 of Code of Criminal Procedure is materially adverse to the Petitioner. The Petitioner has specifically pleaded in the civil suit filed by her before the Civil Court in which the party No. I and party No. 2 have been added as Defendants that she has one-third share in the suit land. She further pleaded that she did not execute any sale-deed in favour of any person and some fictitious sale-deed was executed on behalf of her. The Trial Judge in the order of injunction dated 24-7-2008 has primarily held that Ramhet executed a sale-deed on 19-9-1992 along with the Petitioner, however, in the aforesaid sale-deed, the photo of the Plaintiff was also affixed and that photo is quite different from the photo of the Voter Identity Card of the Plaintiff and the sale-deed was appeared to be fictitious. The Petitioner-Plaintiff asserted her right over one-third share of the land. Under Section 145 of Code of Criminal Procedure proceedings, party No. 1-Dwarika Prasad and Damodar stated that they purchased the land from Inderpal and Satyapal. Dwarika Prasad and Damodar also filed an injunction application in the Civil Suit No. 141-A/2005 and that application has been dismissed by the Trial Judge. In such circumstances, in our opinion, the Petitioner is a person aggrieved and on her behalf the revision petition was maintainable. 11. Dwarika Prasad and Damodar also filed an injunction application in the Civil Suit No. 141-A/2005 and that application has been dismissed by the Trial Judge. In such circumstances, in our opinion, the Petitioner is a person aggrieved and on her behalf the revision petition was maintainable. 11. The matter has to be looked into from another angle also. It is well settled principle of law that under the provisions of Code of Civil Procedure, a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court, if he would be prejudicially affected by the judgment. The Hon'ble Supreme Court has also held the same principle of law in the case of Smt. Jatan Kanwar Golcha v. Gotcha Properties Private Ltd. (In Liquidation) reported in AIR 1971 SC 374 where the hon'ble Supreme Court has held as under: It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the judgment. Civil Spl. Appeal No. 126 of 1970, decided on 9-4-1970 (Raj.), reversed. 12. The same principle has been held by the Full Bench of the Andhra Pradesh High Court in the case of Dimmiti Pullayya and Ors. v. Abdebolu Nagabhushanam and Ors. reported in AIR 1962 AP 140 (V. 49 C. 39) Full Bench, where the Hon'ble High Court has held as under: If a person is deemed to be a party under Order 1 Rule 8 and for purposes of Section 11 Expln. VI leave to appeal can be granted to him by the Appellate Court in an appropriate case, if the decision rendered in those proceedings would adversely affect him. It is not in every case where a person may be remotely or indirectly affected that leave should be granted but it should be granted to persons who though not eo nomine parties would be bound by the decree or judgment in the proceeding and who could not by reason of Explanation VI to Section 11 agitate the same question in separate representative capacity, he would not be permitted to file an appeal against the decree if the person who is actually a party to the proceedings does not choose to carry the matter in appeal against that decree or order. There is no obstacle created either by the provisions of the Code of Civil Procedure or by any practice obtaining either in India or in England in the way of granting leave to file an appeal to persons who are not eo nomine parties to the proceeding but who at the same time would be bound by the judgment or decree of the Court, granted in such proceedings. 13. On the basis of above discussion and as per the principle of law laid down by the Hon'ble Supreme Court and Full Bench of the Andhra Pradesh High Court, in our opinion, the learned Additional Sessions Judge has committed an error of law in holding that a revision petition filed on behalf of the Petitioner was not maintainable. We have not discussed the merits of the case, because the learned Judge has dismissed the revision only on the ground of maintainability. 14. Consequently, the petition of the Petitioner is allowed. The impugned order (Annexure P-6), dated 31-7-2008 passed in Criminal Revision No. 392/2007 is hereby quashed. The matter is remanded back to the Sessions Court to decide the revision on merits. No order as to cost.