Punamchand Mali vs Chandanbai Mali and another

K.L. Shrivastava, J.

This is an application u/s 482 of the Code of Criminal Procedure 1973 (for short "the Code") filed on 31-8-1984 and directed against the order dated 28-8-1984 passed by the first Addl. Sessions Judge, Ratlam in Criminal Revision No. 4 of 1984 whereby he has set aside the order dated 9-12-1983 passed by the learned trial Court regarding delivery of possession of two rooms of the house in question situate at Ratlam, to the petitioner.

Facts giving rise to the application are that the petitioner Punamchand is the son of deceased Bhimaji and Laxmibai is the wife of Punamchand. The non-applicant Chandabai is the wife of his brother Heeralal. According to the petitioner the property in dispute forms part of an ancestral house belonging to deceased Bhimaji and is in joint possession of the parties. Following the report by the non-applicant No. 1 Mst. Chandabai, this disputed portion was taken possession of by the police during investigation. The contention of the non-applicant Chandabai is that the property in dispute was purchased by Mst. Kishi, wife of deceased Bhimaji for Rs. 800/- as long back as in 1958. In 1963, Mst. Kishi, then a widow, transferred it to her by a registered sale-deed.

The non-applicant No. 1 Mst. Chandabai, in March ''82 filed an eviction suit therein mentioning the petitioner''s wife Mst. Laxmibai as a sub-tenant and obtained an ex parte decree. Mst. Laxmibai challenged the judgment and decree by filing Civil Suit No. 272-A of 1982 and obtained an injunction on 27-2-1982 against execution of the said decree.

Subsequently on 23-4-1983, at 10.00 a.m., Mst. Chandabai lodged a report with the police to the effect that during the preceding night at 1.30 a.m. the petitioner, his wife Laxmibai and three others had committed offence u/s 448 Indian Penal Code in relation to the house in question and have taken possession of a portion thereof. It has been stated in the report that the petitioner had claimed that he has a share in the house. The report has given rise to the criminal case No. 1499/83 in the Court of Chief Judicial Magistrate Ratlam which is pending at evidence stage.

In consequence of another report made by Chandabai to the police, the Sub-Divisional Magistrate on 10-9-1983 passed an order in her favour. This order was quashed in revision.

In view of the attempts by Chandabai to dispossess Laxmibai of the portion in her possession, the latter has filed another suit (Civil Suit No. 18-A of 1983) which too is pending. In the aforesaid suit an order dated 27-4-1983 has been passed to maintain status quo and the application for temporary injunction is still pending.

The point for consideration is whether the application deserves to be allowed.

The learned counsel for the non-applicant No. 1 urges that the inherent powers u/s 482 of the Code have to be very sparingly exercised and cannot, in the circumstances of the case, be invoked to set aside the impugned order which is interlocutory in nature. His contention is that the. petitioner Punamchand had been living separately for the last 40 years prior to the attempt made in 1983 for obtaining possession of a portion of the house in dispute. On the report lodged by Chandabai the police had sealed the house and subsequently Chandabai and Punamchand both applied for possession of the property. It is urged that the Chief Judicial Magistrate had passed a wrong order in favour of the petitioner which has been rightly revised by the learned Additional Sessions Judge by his impugned order. According to the learned cousel for the non-applicant No. 1 the order regarding maintaining status quo passed by the Civil Judge has the effect of permitting the petitioner to enjoy the fruits of his crime for which he stands prosecuted (vide Criminal Case No. 1499 of 1983).

The contention of the petitioner''s learned counsel is that the dispute in the instant case relates to immovable family property and the impugned order affects the right of the parties and, therefore, it is not interlocutory in nature''. According to him the case is a fit one for interference u/s 482 of the Code.

It may be stated at the outset that an order u/s 451 of the Code cannot be treated as interlocutory so as to be beyond the revisional jurisdiction. This Court has been entertaining revisions against such orders as is clear from Satyanarayan''s case 1985 MPWN 17, and Darshan Singh''s case 1985 MPWN 133. It may be stated that the non-applicant No. 1 had herself invoked the revisional jurisdiction of the Sessions Court. Further, the interlocutory nature of the order is relevant when the question is of the order being revisable or not and is inconsequential if the case is found to be covered u/s 482 of the Code.

As pointed out in the decision in B. K. Patil v. State of Mysore, 1977 CriLJ 1141 , in a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial, and production of property before the Court does not mean physical custody or possession by the Court, but includes even control exercised by the Court by passing an order regarding the custody of the property. From the decision in Ram Parkash Sharma Vs. State of Haryana, it is clear that Court has power to dispose of property seized by the police but not yet produced before the Court. The words employed in section 451 of the Code are ''any property'' and as pointed out in Gopal''s case 1985 MPWN 27 with reference to section 452 of the Code the words ''any property'' cover immovable property as well. In that case too the police had taken possession of the house and had sealed it during investigation.

The petitioner could have filed a revision to challenge the impugned, adverse order passed against him in revision filed by the non-applicant No. 1. The provision u/s 397(3) of the Code bars second revision by the same person. It does not bar revision by an unsuccessful person who was not himself the petitioner.

12A. In the instant case, the petitioner has not filed any revision. The question is whether it is open to this Court to interfere with the impugned order u/s 482 of the Code.

It may be noted that in section 482 of the Code the Legislature has employed words of the widest amplitude. The provision is in these terms :

Nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

As pointed out in the State of Karnataka Vs. L. Muniswamy and Others, the ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the Legislature.

In the decision in Madhu Limaye Vs. The State of Maharashtra, it has been pointed out that the label of the petition filed by an aggrieved party is immaterial and in an appropriate case the High Court can examine the matter under its inherent powers u/s 482 of the Code.

In the decision in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, it has been pointed out that as compared to section 397(2) of the Code, section 482 ibid has a different parameter. It is a provision independent of the former section and regulates the inherent powers whereas section 397(2) applies to the exercise of revisional powers. According to the decision, section 482 of the Code confers a separate and independent power on the High Court alone to pass orders ex debito justitiae. It has also been pointed out that it is well-settled that inherent powers u/s 482 of the Code can be exercised only when no other remedy is available to the aggrieved party and not where a specific remedy is provided by the statute. Regarding the limits of the power the following observations of Krishna Iyer, J. in Raj Kapoor and Others Vs. State and Others, have been quoted with approval in paragraph 7 :

Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code.

In Madhu Limaye''s case (supra) it has also been pointed out that barring a few exceptions certain principles therein enumerated have been followed ordinarily and generally, almost invariably. One such principle is that if there is specific provision in the Code for redress of the grievance of the aggrieved party the power u/s 482 of the Code is not to be resorted to. The decision further points out that in case the impugned order clearly brings out a situation which is an abuse of the process of the Court or where interference by the High Court in absolutely necessary for the purpose of securing the ends of justice then even an express bar u/s 397(2) of the Code cannot be urged in derogation of the inherent powers. The crucial question is whether the facts and circumstances of the case place it in the category of an exceptional case requiring interference u/s 482 of the Code. In this very connection the decisions in Biranlal''s case and Harbanslal''s case 1984 MPWN 33 and 62 respectively may also be usefully perused.

In the instant case, the dispute appears to be essentially of a civil nature and Mst. Chandabai having been unsuccessful in her attempt to dispossess the party of the petitioner, has set the machinery of the criminal law in motion for the resolution of that dispute. The learned trial Court had passed the order in favour of the petitioner but the same has been wrongly set aside by the learned Additional Sessions Judge in exercise of the discretionary revisional jurisdiction and that too in the face of the civil Court''s order for maintaining status quo pending the decision on the application for temporary injunction. Even according to the first information report in question the petitioner had entered into possession of the disputed property. In the circumstances of the case, his possession deserves to be maintained till the decision as to the crime involved in the criminal case. It appears that the petitioner who has been prompt was not properly advised and has filed the present application which was registered by the office as Misc. Cr. Case and has remained pending with the result that in the meantime his remedy of revision has become time-barred. On a cumulative consideration of the circumstances of the case narrated above, I am of the view that it is of an exceptional nature and in order to secure the ends of justice interference u/s 482 of the Code is, therefore, well-warranted.

In the result, the application is allowed. The impugned order is set aside and that of the trial Court is restored. The learned trial Magistrate is directed to dispose of the criminal case as expeditiously as possible.