Lachhman and Others vs State and Another

I.D. Dua, C.J.

(1) The short question arising in this revision is whether this Court should make an order directing that the property which was the subject-matter of the charge should be directed to be handed back to the accused persons.

(2) It is unnecessary to state elaborately the facts giving rise to this revision. Suffice it to say that Lachhman and Ram Dass were convicted by a learned Magistrate Ii Class Ghumarwin, District Bilaspur u/s 447, I.P.O., and sentenced to pay a fine of Rs. 50.00 each. I am informed that the land in question was directed to be handed over to the complainant Gram Panchayat Mehri Kathl. This order was apparently made u/s 522 (1) Cr. P.C.

(3) On appeal, the learned Assistant Sessions Judge, Bilaspur, set aside the order of conviction and acquitted the accused. As a result of this acquittal, it was ordered that fine if realised should be refunded to them according to law. Unfortunately, the lower Appellate Court omitted to make an order directing that the property be handed back to the accused persons from whom it was taken pursuant to the order of the trial Court. The learned Assistant Sessions Judge Acquitted the accused on 24th May, 1967.

(4) In this Court, on behalf of the petitioners, it is prayed that possession of the land comprising Khasra No. 43 situated in village Pallian, district Bilaspur, be ordered to be restored to them. This prayer is opposed on behalf the respondents and it is urged that this Court has no jurisdiction to make such an order, and indeed the submission goes to the extent that even the lower Appellate Court, while acquitting the accused could not make such an order. In support of this position, reliance has been placed on some decided cases. In support of the absence of power in this Court and in the lower Appellate Court to make a. consequential order after acquitting the accused to direct the property to be handed back to them, reliance has been placed by Shri K.C. Pandit on a Single Bench decision of the Allahabad High Court in Ram Prasad v. State. The learned Judge observed in the reported case that the Code of Criminal Procedure contemplates an order u/s 522(1) to be a final order and that sub-section (3) thereof does not empower the . Appellate Courts to set aside an order passed by a Magistrate under sub-section (1) of section 522 or even to modify or alter it or to pass any further just orders. It can pass only one type of order and that order can be to restore possession to the dispossessed complainant. The learned Judge further proceeded to observe that an order u/s 522 (1) is final subject to an aggrieved party establishing his right or interest to the immovable property in a civil suit. An order, the judgment further proceeds under sub-section (1) of section 522 can be revisable like other orders of inferior Courts by the High Court on the grounds of impropriety, illegality or incorrectness of the order itself, that is, on the grounds that order could not have been properly or legally passed under sub-section, (1) of section 522. The High Court accordingly had no jurisdiction to interfere with the original order passed by a Magistrate u/s 522 (1) in the exercise of its revisional jurisdiction. Even the fact of acquittal, according to this decision, does not necessarily mean that the acquitted person would be entitled to the possession of the property over which possession had been delivered to the complainant under an order of the convicting Court u/s 522 (1) and unless the High Court could be in a position to say definitely that the accused is entitled to the property and not the complainant the question of exercising inherent powers of the High Court in the interest of justice does not arise. As against the view, the petitioners'' learned counsel has drawn my attention to a more recent decision of the Calcutta High Court in S.K. Osman Gani v. Baramdeo Single. This judgment dealt with more cases than one, and while/dealing with Cr. Revn. No. 1618 of 1955, the Division Bench speaking through S.K. Guha Ray, J. opined that the basis of an order u/s 522 (1) of the Code of Criminal Procedure in a conviction together with a certain finding that the complainant was dispossessed by force or show of force or criminal intimidation. As soon as the conviction is set aside the whole basis of the order disappears, with the result that it would be open to the High Court after the conviction has been set aside to set aside-the order u/s 522 (1) as well and to direct restoration of possession to the party who had been dispossessed by the order u/s 522 (1). The Bench on revision made the order directing restoration of the property to the accused persons. I find from the body of the judgment that in support of this view, reliance, was placed on a Single Bench decision of the Allahabad High Court in Malkhan Singh v. Emperor, and on an unreported decision of the Calcutta High Court by N.K. Sen J. in Nanda Lal Dass v. Benov Kumar Das, Crl. Revn . No. 1080 of 1957. The Single Bench decision of the Allahabad High Court in Malkhan Singh''s case also fully supports the petitioners'' submission before us. I am inclined, as at present advised, to prefer the view expressed in the Culcutta decision.

(5) On general principles, it appears to me to be a sounder view to take that as soon as a conviction on which an order u/s 522 (1) is founded, is set aside such an order must be reversed and the restoration of property to the accused ordered. This is in full accord with the ordinary dictates of justice because of the accused has been held not to be guilty of the offence relating to the property, than except through the intervention of legal proceedings, the party in possession should not be deprived of the property by criminal Courts. There is no prohibition in the statute to this course and in the absence of any inhibition, the Courts are entitled to assume the existence of such power as is necessary to undo the evil effects of an order which has been set aside by them. Such an order is only consequential. In section 522(1), there is of course a provision that an order there under can be made either at the time of conviction or at any time within one month from the date of the conviction. May be, that if the court awaits the decision of the appeal, if any, preferred against conviction, then the limitation for making such an order would expire. This is perhaps one reason the mere to vest such a power in the court of appeal when the order of conviction is reversed and I find no sound basis for depriving the Appellate Court of this power, which must serve to promote the cause of justice.

(6) But when all is said and done, so far as this Court is concerned, there can be no question of the inherent powers not being capable of being exercised for promoting the cause of justice. I have, Therefore, no hesitation in allowing this revision and directing that the possession of the property be restored to the accused persons, and I order accordingly, leaving it open to the complainant to take whatever legal proceedings are considered proper for enforcing its right in the property in question.

(7) The revision is accordingly allowed.