Fida Hussain vs Sarfaraz Hussain

Rowland, J.—This application raises the question of the legality of orders passed u/s 522, Criminal P.C., in the following circumstances: On the complaint of one Sarfaraz Hussain the petitioner was convicted on 22nd August 1932, by an Honorary Magistrate exercising 2nd Class powers, of offences under Sections 504 and 323, I.P.C. It was alleged that by means of assault and intimidation, petitioner Fida Hussain had dispossessed the complainant of certain immovable property.

The petitioner appealed from his conviction to the District Magistrate who, on 6th December 1932, upheld the conviction. The complainant moved the Honorary Magistrate on 12th December 1932, to pass an order u/s 522, Criminal P.C., to restore the complainant to possession of the immovable property. The Honorary Magistrate on this application passed an order on 20th December 1932, directing possession to be delivered accordingly.

The petitioner moved the Subdivisional Officer against this order on 21st December 1932, and the Subdivisional Officer called for the record u/s 435, Criminal P.C., and, on 9th January 1933, referred the case to the District Magistrate under Sub-section (2) of that section.

On the other hand the petitioner moved the High Court in revision against his conviction and sentence, but his application was rejected on 26th January 1933. The Additional District Magistrate, who heard the reference made by the Subdivisional Officer, was of opinion that the order of the Honorary Magistrate, dated 20th December 1932, was without jurisdiction as a period of nearly four months had elapsed between the Honorary Magistrate''s judgment of conviction dated 22nd August 1932, and the passing of the subsequent order, whereas Section 522, Clause (1), Criminal P.C., as amended in 1923, gives the Court by whom a person is convicted power to pass an order:

when convicting such person or at any time within one month from the date of the conviction

He thought however on the authority of Rameshwar Singh v. Emperor AIR 1925 Pat 689 that he himself had power, as a Court of revision u/s 522, Clause (3), to pass such an order. He considered the case to be "emphatically a fit case for passing such an order" and he passed an order accordingly. This order was dated 1st May 1933. It is contended that the power conferred on a Court of appeal, reference, or revision by Section 522 Cl.(3) is intended to be exercised only at the time of affirming a conviction or at the latest within a month thereafter and reference is made to AIR 1927 131 (Nagpur) . This was a case in which the accused had been convicted of certain offences and his application in revision had been dismissed.

The findings of fact showed that complainant had been dispossessed by the accused by criminal force or show of criminal force. After the disposal of the application in revision the complainant moved the High Court for an order u/s 522, and the learned Judicial Commissioner, observing that it was a fit case for restoring possession to the complainant, passed order accordingly and took the trouble to point out that he was disposing of it within the period of one month from the date of confirming the conviction in revision. On the other hand in Rameshwar Singh v. Emperor AIR 1925 Pat 689, which has been relied on by the learned Additional District Magistrate, this High Court was considering a case in which the trial Court had passed an order u/s 522 more than six weeks after the conviction of the accused by him.

It was observed that strictly speaking the order was beyond the power of the Magistrate. In that case also it seems that a criminal revision had been presented in the High Court against the order of conviction and that criminal revision had been dismissed more than a month before the order u/s 522, came under the consideration of the High Court. Jwala Prasad, J., held that Clause (3) of the section which was newly added in 1923 did not impose any time limit within which a Court of appeal, confirmation, reference or revision must act.

Therefore it was competent to such a Court to pass an order for restoring the property to the complainant even after the expiry of one month from the disposal of appellate or revisional proceedings. These are the only cases placed before us arising out of offences committed after the amendment of the Act in 1923. Before the amendment different views had been taken as to the power of an appellate or revisional Court to pass an order u/s 522 which the trial Court had omitted to make. In Aziz Ahmad Vs. Buddhu Khan and Others, , Daniels, J., thought that a Court of appeal or revision had no such power. On the other hand, though there was some judicial opinion that the Court of first instance must pass an order u/s 522 at the time of the conviction or not at all, it was held in Emperor v. Ashiq Husain Khan AIR 1923 All 333 that an order u/s 522 passed by the trial Court shortly after the confirmation of the conviction in appeal was in order.

In Emperor v. Lachman AIR 1924 All 212 there had been no order u/s 522 passed, by the trial Court, but the appellate Court in upholding the conviction and sentence directed restoration of possession. The order of the appellate Court had been passed before the amendments to the Criminal Procedure Code came into force, but it came for consideration before the High Court after those amendments became effective. Sulaiman, J., Set aside that portion of the appellate Court''s order which directed restoration of possession to the complainant and in place of it made a fresh order directing restoration of possession. I can find nothing in Section 522, Clause (3), to limit the jurisdiction of an appellate Court to the passing of an order within one month either of the original conviction or of the appellate order.

It can hardly have been the intention of the legislature that the appellate Court''s order u/s 522 must necessarily be passed within a month of the original conviction, for that would make Sub-section (3) infructuous in any case in which the pendency of the appeal exceeded one month. As to whether the appellate order u/s 522 ought to be within a month of the appellate Court''s disposal of the appeal, there is no such limitation in the section. It may be that no appeal or application in revision is presented by the accused. Such was indeed the case in Aziz Ahmad Vs. Buddhu Khan and Others, .

And then what is to be the starting point for the time limit? I would respectfully agree with the view of Jwala Prasad, J., in Rameshwar Singh v. Emperor AIR 1925 Pat 689 that no time limit was in tended to be set. The legislature, it would seem, thought fit to rely on the discretion of appellate and revisional Courts not to exercise their powers under this section in cases where there has been undue or excessive delay in moving the Court for its use.

In the case before us the complainant''s application to be restored to possession was presented to the Honorary Magistrate only six days after the conviction had been affirmed on appeal, and there can be no question of withholding relief on the ground of excessive delay. The proper course however for the complainant was to move the appellate Court, and the proper course for the Honorary Magistrate was to reject or return the application directing complainant to move the appellate Court if so advised. The Additional District Magistrate had, I think, power to deal with the matter, and has done so correctly. In the result the application should, in my opinion, be dismissed.

Agarwala, J.

I agree.