Mangalathammal vs Marimuthu Thevar and Others

The ''A'' party in M.C. No. 4 of 1986 on the file of the Tahsildar-cum-Executive II Class Magistrate, Thiruthuraipoondi, has preferred this

revision against the order passed u/s 145(1), Code of Criminal Procedure. It is seen that the Executive Magistrate passed the final order u/s 145,

Cr.P.C. declaring the possession of the ''B'' party and prohibiting the interference of ''A'' party. The said order has been challenged on the

following grounds : The ''B'' party filed a suit in O.S. No. 200 of 1986 on the file of the District Munsif, Thiruthuraipoondi, for permanent

injunction. They also moved for interim injunction in I.A. No. 970 of 1986 and the same was not granted. The Court ordered only notice in

September 1986. It is contended that when the Civil Court has taken cognizance of the dispute between the parties, the learned Magistrate ought

to have directed both the parties to work out their remedies in Civil Court in the civil dispute which is pending. It is further contended that the

Magistrate has referred about his personal inspection of the lands and enquiry on 19-10-1986. The enquiry was done without notice to ''A'' party

and against the principle of natural justice. According to the petitioner, the Magistrate committed grave irregularity in relying on the affidavit as

evidence, while passing the order u/s 145, Cr.P.C., without examining the defendant. The preliminary order is defective as it does not disclose the

grounds of satisfaction.

On the other hand, it is the contention of the respondent that the respondent and his predecessors have been in possession of the land as

cultivating tenants of the land. Their possession has been recognized by the predecessor of ''A'' party in the previous suit O.S. No. 330 of 1963.

The petitioner and her two sons attempted to evict the respondent forcibly and failed in their attempt. During that incident, the respondent sustained

grievous injury and the matter is pending investigation before police. The respondent is entitled to protection under the Cultivating Tenants''

Protection Act. The proceedings u/s 145, Cr.P.C. were initiated against the petitioner and the respondent in the month of October, 1986 and the

Magistrate after elaborate enquiry and after giving due consideration to the documents filed on the side of both parties, came to the conclusion. It is

further stated that the petitioner had filed a revision before the Sessions Court and failed in her attempt to obtain stay. She has suppressed to

mention this fact and filed this revision before this court, and as such the second revision is barred u/s 397(3), Cr.P.C. On that ground alone this

revision is liable to be dismissed. The claim of the petitioner before this Court is not bona fide as she has suppressed the very filing of the revision

before the Sessions Court and even on merits the petitioner has no case and as such no interference is called for in this revision.

As regards the maintainability of the revision, it is not in dispute that the petitioner had filed a revision before the Sessions Judge against the final

order passed u/s 145, Cr.P.C. by the Executive II Class Magistrate in Crl. R.C. No. 20 of 1986 and moved for stay in Cr. M.P. 912/86 prior to

the filing of this revision and since no order of stay was granted by the Sessions Court pending disposal of the revision, this revision has been filed

and interim orders were obtained. The learned counsel for the respondent submitted that in view of the filing of the revision in the Sessions Court

against the order of the Executive Second Class Magistrate, this revision is barred under S. 397(3), Criminal P.C.S. 397(3), Cr.P.C. reads as

follows :

If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the

same person shall be entertained by the other of them.

On the other hand, the learned counsel for the petitioner relied on the decision reported in Gangadharabhatla Satyanarayana of Yeleswaram Vs.

Mudi Narayanswami of Yeleswaram, and submitted that subsequent to the filing of the present revision, the petitioner did not press the revision

before the Sessions Judge and the same was dismissed as not pressed and since the said revision was not disposed of on merits, the second

revision is maintainable. In the above quoted case, it was held :

There should be no objection to the maintainability of a second petition for revision when the first one had failed not on the merits, but by default.

In any event, when the order of dismissal expressly permitted the petitioner to file fresh Criminal Revision Petition, it can at least be equated in law

to an action taken by the High Court suo motu in exercise of the revisional jurisdiction. There is no question of the High Court becoming functus

officio, by reason of an order of dismissal for default passed by it on a petition by a private party, who has really no right but a mere concession in

the matter of moving the High Court in revision.

The said decision is not helpful to the case of the petitioner, as in the instant case, admittedly, the revision in the Sessions Court was pending at the

time of filing of the revision before this Court, and there was no order enabling the petitioner to file a fresh petition or there was any order of

dismissal for default. He cannot file the second revision before this court when he has already made a first revision before the Sessions Judge who

is having concurrent jurisdiction. On the other hand, the learned counsel for the respondent relied on the decision reported in Mohammad Khan

Hanif Khan Vs. Shamim Begum and Another, wherein the Allahabad High Court held :

Magistrate directing husband to pay maintenance to wife - Husband filing revision before Sessions Judge but getting it dismissed as not pressed -

Further revision by husband before High Court - Not maintainable.

Head note)

Learned counsel for the petitioner drew my attention to the decision in Harakh Singh Vs. Lalmuni Kuer, wherein it is held : by the Patna High

Court :

Where an application in revision filed before the Sessions Judge is withdrawn a subsequent application in revision before the High Court is not

barred by S. 397(3) of the Code.

In that case, reliance was also placed on the decision in Narayana Naick v. Emperor, AIR 1931 Mad 772 : 1931 Cri LJ 14. It is clear from the

above provision of S. 397(3), Cr.P.C., if a revision has been filed u/s 397(1), Cr.P.C. before the Sessions Court, no further revision can be

entertained by the High Court. This is not a case where the earlier petition was dismissed for default or withdrawn and subsequently this revision

has been filed. As rightly observed by the learned counsel for the respondent, since the petitioner could not get an interlocutory order, he has come

forward with his petition and such a revision is not maintainable. I find much force in the contention of the learned counsel for the respondent that

this revision is not maintainable in view of S. 397(3), Cr.P.C.

It was next contended by the learned counsel for the petitioner that in view of the decision of the Supreme Court reported in Madhu Limaye Vs.

The State of Maharashtra, and the subsequent decisions reported in Raj Kapoor and Others Vs. State and Others, and Municipal Corporation of

Delhi Vs. Ram Kishan Rohtagi and Others, , even though the second revision is barred u/s 397(3), Cr.P.C., this revision can be treated as one u/s

482, Cr.P.C. and this Court can exercise the inherent power and pass suitable orders. In Sarjoo v. Babadin, 1975 Cri LJ 1562 the Allahabad

High Court held :

Ss. 397 and 399 only bar the revisional jurisdiction of the High Court, if that jurisdiction has already been invoked by a party before a Session

Judge but it does not and cannot bar any other jurisdiction of the High Court which is inherent and not revisional. These are two different

jurisdictions and it cannot be said that the inherent jurisdiction is the same as the appellate or the revisional .....

In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, it was held :

It is true that S. 397(2) clearly bars the jurisdiction of the Court in respect of interlocutory orders passed in appeal, enquiry or other proceedings.

S. 482 has a different parameter and is a provision independent of S. 397(2). While S. 397(2) applies to the exercise of revisional powers of the

High Court, S. 482 regulates the inherent powers of the Court to pass orders necessary in order to prevent the abuse of the process of the Court.

Madhu Limaye Vs. The State of Maharashtra, .

It is further held :

Thus, the scope, ambit and range of S. 561-A (which is now S. 482) is quite different from the powers conferred by the present Code under the

provisions of S. 397. It may be that such cases would be few and far between. It is well settled that the inherent powers u/s 482 of the present

Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further,

the power being an extraordinary one it has to be exercised sparingly. If these considerations are kept in mind, there will be no inconsistency

between Ss. 482 and 397(2) of the present Code.

The learned counsel for the respondent also relied on the decision reported in In Re: Puritipatti Jega Reddy, (Full Bench decision) wherein it was

held :

A party who is unsuccessful in revision before the Sessions Judge is precluded from filing a second revision in the High Court by virtue of the

provisions of S. 397(3). However, the High Court can exercise its inherent powers where that exercise is warranted irrespective of the manner in

which the matter has been brought to its notice. Therefore, a party who has been unsuccessful before the Sessions Judge, may seek to bring it to

the notice of the High Court u/s 482, Cr.P.C. But that shall not be automatically taken notice of by the High Court. It must be scrutinised and

examined whether there has been miscarriage of justice in any particular case before it entertains any such petition filed by an unsuccessful party.

The best course would be to place the matter before the Court for admission and at the time of such admission, the Court must be prima facie

satisfied before it admits, that there has been abuse of the process of any Court or that the High Court''s interference would be warranted in the

ends of justice. Once that prima facie satisfaction is reached by the High Court at the time of admission then a petition even by the party who has

been unsuccessful before the Sessions Judge can be received, entertained and finally disposed of. The label given to the case is immaterial. It is the

satisfaction of the Court whether the case warrants the exercise of its powers u/s 482 which is important. Therefore, such matters must be carefully

scrutinised even at the admission stage.

The ratio laid down in the above decisions is very clear that even though the second revision is not maintainable, yet if the peculiar circumstances of

the case warrant the exercise of the inherent jurisdiction by this Court u/s 482, Cr.P.C. there is no bar in treating the revision u/s 482, Cr.P.C. and

then granting the necessary relief. The only question to be considered in this case is whether there has been any abuse of process of court and

whether there has been any miscarriage of justice and whether the interference of this Court is warranted for the ends of justice. The main

contention of the learned counsel for the petitioner is that the Magistrate relied on the affidavit in arriving at the finding and such a procedure is

illegal and after the enactment of the new Criminal P.C., the ''affidavit'' which was originally found in the old Act, has been deleted and that without

examining the witness, the court below ought not to have relied on the ''affidavit''. On the other hand, the learned counsel for the respondent

submits that even on the side of the respondent, they have filed 10 affidavits from the Village Headman, Ex-Karnam and other neighbours and even

eschewing the affidavits, there are enough materials to hold that the ''B'' party was in possession as cultivating tenant on the relevant date. In this

connection, the learned counsel for the respondent submits that S. K. Narayanasami Iyer, who is no other than the husband of the petitioner and

who is an advocate, in an earlier suit filed O.S. No. 330 of 1963, added the respondent Marimuthu Thevar as the second defendant in the said suit

on the ground that he is a cultivating tenant of the disputed property and he is in occupation of the land as well as the shed put up therein. There is

absolutely nothing to show that subsequently he was evicted. Apart from that, he has produced documents, namely, kist receipts, to prove that he

has been in possession on the relevant date and they have been taken into consideration by the Magistrate for passing the order. It is further

submitted by the learned counsel for the respondent that the order passed by the Magistrate is temporary in nature and it is nothing but a police

order and it is subject to the decision of the Civil Court and normally the High Court could not interfere with such orders passed to prevent the

breach of peace. Further, in this case it is only the petitioner who by abuse of the process of court filed this revision without disclosing the very

filing of the revision before the Sessions Court and failed to obtain interim order and as such there are absolutely no circumstances which would

warrant the exercise of the inherent jurisdiction which can be invoked only sparingly and in cases where there has been miscarriage of justice and

abuse of process of Court. In this case, the petitioner has not made out any ground for exercising the inherent jurisdiction u/s 482, and as such the

petition is liable to be dismissed. I find much force in the contention of the learned counsel for the respondent. The jurisdiction of this court to

entertain this petition u/s 482, Cr.P.C. is not disputed; even though the second revision is not maintainable, in view of the ratio laid down by the

Supreme Court that in cases where the second revision is held to be barred u/s 397(3), Cr.P.C. the High Court can invoke the inherent power u/s

482, Cr.P.C. But, as rightly observed by the learned counsel for the respondent, as is seen from the above decisions, the jurisdiction has to be

exercised only sparingly and that too only in cases where the circumstances warrant to exercise such power if the Court is satisfied that there has

been a flagrant abuse of the process of court and miscarriage of justice. But, in this case, as already discussed, the petitioner has not made out any

of the grounds so as to warrant the exercise of the power under S. 482, Cr.P.C. On the other hand, it is seen that the leasehold right of the B party

has been recognised even as early as 1963 by the predecessor of the A party, namely her husband, and that the B party has been paying the kist

and that the B party has also filed a suit for permanent injunction in O.S. No. 200 of 1986 and also prayed for temporary injunction. It is no doubt

true that notice was ordered in the temporary injunction petition and no ex parte injunction was granted. It is true that parallel proceedings should

not be allowed to continue as against the decision of the Civil Court. But, in this case admittedly no injunction was granted by the Civil Court and

the Magistrate in order to maintain law and order and to prevent breach of peace passed the order u/s 145, Cr.P.C. on the report of the police. It

is not in dispute that the said order is only a police order and is temporary in nature and subject to any decision to be passed by Civil Court. It is

open to the parties to agitate their respective claims before Civil Court for final and complete adjudication of their claim in the subject-matter of the

litigation. On a careful consideration of the entire materials placed before me, I am of the view that the petitioner has not made out any case for

interference in revision and as such the revision is liable to be dismissed.

In the result, the revision fails and stands dismissed. However, the District Munsif, before whom the suit is pending, is directed to give top

priority to the suit and decide the same as expeditiously as possible on merits after giving opportunity to both parties and without being influenced

by any of the observations made in this order.

Revision dismissed.