Gudri Mahton vs Jangi Mahton

This is an application in revision by the accused, Gudri Mahton against the order dated 31st July 1933, of the Additional Sessions Judge of Patna directing a Magistrate of the First Class, to resume hearing of the application u/s 522, Criminal P. C, made by Jangi Mahton, complainant, at the stage at which the Magistrate had directed the accused to show cause why such an order should not be made. On 6th December 1932, the petitioner was convicted of offences falling within the description set out in Section 522.

On the 22nd December, the latter applied u/s 522 for an order restoring him to the possession of plot 560 of which he had been dispossessed by the petitioner in the course of the offences mentioned. The Magistrate, instead of making the order forthwith, issued notice to the petitioner to show cause on 10th January 1983, why the order should not be passed. On that date the record having been sent to the appellate Court, there was a postponement until 4th February on which date time was again granted till the 3rd March when the Magistrate passed the somewhat petulant order "I cannot keep this case pending for long. File." On the 31st May the petitioner''s appeal was dismissed by the Sessions Judge with certain modifications.

On the 5th June the complainant again made application to the Magistrate for an order u/s 522, but on the 22nd June it was rejected on the ground that such an order could not be passed six months after the date of the conviction. On the 30th June the complainant applied to the Sessions Court for such an order with the result that the Additional Sessions Judge passed the order in respect of which the present rule has been issued. It may be added that on the 9th October, the Magistrate made an order u/s 522, restoring the complainant to possession. This rule was obtained on the following day, but the application had been filed on the 5th November when the Court reopened after the vacation.

In support of the rule it has been urged first, that the appellate Court was not authorized to pass an order u/s 522 after the expiry of one month from the 31st May on which the appeal of the petitioner from his conviction was dismissed and, further, that in any event; the particular order which is now impugned, is not one which could be readily made by the appellate Court. In my judgment the first contention is unsound, but the second is correct.

As regards the first plea, it is obvious that while the convicting Court which has already considered the whole matter, may only pass an order under Sub-section (1), Section 522 when convicting the accused or at any time within one month from the date of the conviction, there is no such limitation under sub-s, (3) which provides that an order under the section may be made by any Court of appeal, confirmation, reference or revision. That was also pointed out in Rameshwar Singh v. Emperor AIR 1925 Pat 689. The Magistrate had there passed an order u/s 522 more than six weeks after the date on which he had convicted the accused, it was pointed out that such an order was not permissible under sub Section (1). But the learned Judge of this Court himself made the order holding that Sub-section (3) imposed no time limit upon the Court of revision in spite of the fact that the High Court had dismissed an application by the accused in its criminal revisional jurisdiction more than a month before the data when he was passing the order u/s 522.

The same view was also recently expressed by a Division Bench of this Court in Fida Hussain Vs. Sarfaraz Hussain, where it was observed:

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.

It was therefore open to the appellate Court to pass an order u/s 522 not only on the date of disposal of the appeal and within one month thereafter which is the extent of the powers of the trying Magistrate, but also without any limitation of time. As to the second point, while it was open to the Court of appeal to make an order u/s 522, it was not authorized to make an order such as is now impugned, directing the Magistrate to make further inquiry into the petition which he had received on 22nd December 1932.

It is manifest that on land after 31st July 1933, the Magistrate could not pass any order at all u/s 522. All that Section 522 authorizes him is to pass such an order within one month of the conviction: it does not authorise him to pass such an order upon an application presented to him within one month of the date of conviction. The order under revision and the order of the Magistrate dated 9th October 1933, must both be and they are hereby set aside.

It would he open to this Court to remand the matter to the appellate Court to pass an order under Sub-section (3), but there is no point in doing so when all the materials are before this Court and this Court is authorized to make the same order in the exercise of its revisional jurisdiction.

The original application was made sixteen days after the conviction, second application five days after the dismissal of the appeal, and the application to the appellate Court eight days after the rejection of the second application to the Magistrate. There was no delay in applying. We therefore make the order which the Magistrate and the appellate Court ought to have made forthwith and direct under the provisions of Section 522 that the complainant Jangi Mahton who has been dispossessed of plot 560 in the course of the offences of which the petitioner Gudri Mahton has been convicted, be restored to possession of the said plot.