Shakuntala Devi &
Ors. Vs. Chamru Mahto & ANR. [2009] INSC 265 (10 February 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.258 OF 2009
(Arising out of SLP(Crl.)No.1624 of 2007) Shakuntala Devi & Ors.
...Appellants Chamru Mahto & Anr. ...Respondents
ALTAMAS KABIR, J.
1.
Leave
granted.
2.
This
appeal arises out of the order passed by the Patna High Court on 5.1.2007
quashing the order dated 6.1.2006 passed by the Additional Sessions
Judge-cum-Fast Track Court No.5, Khagaria, in Criminal Revision No.74/2003,
confirming the order dated 2.5.2003 passed by the Sub-Divisional 2 Magistrate,
Khagaria, in Misc. Case No.20(M)2/97 directing restoration of possession of the
land in dispute to the respondent herein.
3.
The
predecessor-in-interest of the appellants herein, one Dayanand Prasad, filed an
application under Section 145 of the Code of Criminal Procedure, 1973
(hereinafter referred to as `the Code') being Case No.455(M)/86, inter alia,
for restoration of possession in plot No.3580 under Khata No.725 measuring 14
katha 4 dhurs on the ground that he had been forcibly dispossessed therefrom by
the Respondent No.1 herein within two months of such petition being filed.
4.
Both
the parties in the said proceeding filed their respective responses showing
cause and adduced evidence, whereupon the Executive Magistrate by his order
dated 7.10.1994 declared the possession of the appellants over the land in
dispute. The learned Magistrate, while passing his order on 7.10.1994 3 under
Section 145(4) of the Code, declared as follows :- "......Therefore, on
careful apprecia- tion of the evidence adduced by the witnesses of both the
parties and on perusal of the papers produced by both the sides, I have reached
the conclusion that the facts stated by the First Party are true and,
therefore, possession of the First Party since before the dispute is hereby
declared.
It is further
declared that the first party is entitled to the possession over the disputed
land until evicted in due course of law."
(Emphasis supplied)
5.
The
original petitioner Dayanand Prasad, the husband of the Appellant No.1 and the
father of the Appellant Nos.2 and 3, expired in 1995. In November, 1997, the
appellants herein filed Misc. Case No.20(M)2/97 before the Sub-Divisional
Magistrate, Khagaria, for restoration of possession in pursuance of the order
of the Executive Magistrate under Section 145(4) of the Code on 7.10.1994.
Allowing the said Misc. Case the Sub- Divisional Magistrate, Khagaria, passed
an order 4 under Section 145(6) of the Code on 2.5.2003 directing restoration
of possession of the lands in question in favour of the appellants herein.
6.
On
26th May, 2003, the respondent filed Criminal Revision No.74 before the learned
Sessions Judge, Khagaria questioning the order passed by the Sub- Divisional
Magistrate on 2.5.2003 under Section 145 (6) of the Code. The Additional
Sessions Judge- cum-F.T.C.No.5, Khagaria, dismissed the Criminal Revision and
confirmed the order of the Sub- Divisional Magistrate, Khagaria. Against the
said order of the Additional Sessions Judge, the respondent filed Criminal
Misc. Case No.15309/2005 before the Patna High Court, which allowed the said
Misc. Case and set aside the orders passed by the Sub-Divisional Magistrate and
the Sessions Judge, Khagaria. The said order of the Single Judge of the Patna
High Court dated 05.01.2007 is the subject matter of challenge in the instant
appeal.
7.
Appearing
in support of the appeal, Mr. S.B. Sanyal, learned Senior Advocate, firstly
contended that having regard to the specific provisions of Sub-section (3) of
Section 397 of the Code, the revisional application before the Patna High Court
at the instance of the respondent was not maintainable. Mr. Sanyal urged that
the High Court had exercised its jurisdiction erroneously in entertaining a
second revision, which was barred under Sub-section (3) of Section 397 of the
Code, in purported exercise of its inherent powers under Section 482 of the
Code.
8.
In
support of his submission, Mr. Sanyal referred to the decision of this Court in
Rajathi vs. C. Ganesan [(1999) 6 SCC 326]. The said decision was rendered in
connection with proceedings under Section 125 of the Code. The said petition
having been allowed, the husband went in revision to the Court of Sessions,
which dismissed the revision and confirmed the order of the Magistrate. The
husband then filed a petition under 6 Section 482 of the Code in the High
Court, which was allowed by a learned Single Judge who, by his impugned order,
set aside the orders passed by the Judicial Magistrate and the Sessions Judge
and dismissed the wife's claim for maintenance. The matter having been brought
to this Court, by way of Special Leave this Court held that the High Court had erroneously
exercised its powers under Section 482 of the Code which powers were not a
substitute for a second revision under Sub-section (3) of Section 397 of the
Code. This Court also went on to observe that the very fact that the inherent
powers conferred on the High Court are vast would mean that these are
circumscribed and could be invoked only on certain set principles.
9.
In
addition to the above, Mr. Sanyal also relied on the decision of a Three Judge
Bench of this Court in Krishnan & Anr. vs. Krishnaveni & Anr. [(1997) 4
SCC 241], wherein this Court had held that having regard to the provisions of
Section 397(3) of the Code, a second revision before the High Court after 7
dismissal of the first one by the Court of Sessions is barred. While holding as
above, this Court also observed that despite the said bar, the inherent power
of the High Court under Section 482 of the Code was still available but such
power had to be exercised sparingly so as to avoid needless multiplicity of
procedure, unnecessary delay in trial and protraction of proceedings. In fact,
the sentiment expressed in this decision was also referred and relied upon by
this Court in later decisions referred hereinabove.
10.
Mr.
Sanyal then submitted that the High Court had erroneously proceeded to consider
matters which were of no relevance to the facts at issue in the instant case.
He urged that on a completely incorrect interpretation of the provisions of the
Specific Relief Act and the Limitation Act the High Court had proceeded to allow
the respondent's application for quashing of the order passed by the Additional
Sessions Judge, Khagaria, on 6.1.2006.
Mr. Sanyal urged that
Section 4 of the Specific 8 Relief Act makes it quite clear that the
provisions of the Act would be available only with regard to civil matters and
not to criminal proceedings. He urged that by misapplying the provisions of the
Specific Relief Act, the High Court relied on Section 6 thereof, which
specifies a period of six months within which a person wrongfully dispossessed
could file a suit for restoration of possession which was to be disposed of in
a summary manner.
The High Court also
took note of the submissions made on behalf of the respondent that if regard
was to be had to Article 137 of the Limitation Act, the period of limitation to
enforce an order of the Court would be three years and since the application
for enforcement of the Magistrate's order dated 7.10.1994 had been filed on
12.11.1997 after a lapse of three years, the proceedings and the order of the
learned Magistrate were without jurisdiction.
11.
Mr.
Sanyal submitted that neither the provisions of the Specific Relief Act nor the
provisions of the Limitation Act had any application to the facts of 9 this
case and that the case of the appellants would be governed by the provisions of
the Code itself and nowhere under Section 145(4) or 145(6) has any period been
prescribed for enforcing an order passed under Section 145(4) of the Code.
According to Mr. Sanyal, the provision of Section 145(4) of the Code does not
indicate or provide that an order for restoration of possession has to be
included in the order under Section 145(4) itself. It was submitted that the
same could be passed under Section 145(6) of the Code after the declaration had
been made under Section 145(4). Mr. Sanyal urged that after the passing of the
order under Section 145(4) of the Code the appellants made several attempts to
have the matter settled amicably and ultimately, when all efforts towards that
end failed, the appellants were compelled to apply to the Executive Magistrate
to pass an order under Section 145(6) directing restoration of possession in
favour of the appellants. Since, according to Mr. Sanyal, the provisions of the
Limitation Act would not have any application to the case of the appellants,
the bar 10 of three years prescribed therein would not be of any avail to the
respondent and the High Court had proceeded erroneously in holding otherwise.
12.
In
support of his said submissions, Mr. Sanyal firstly referred to a Division
Bench decision of the Calcutta High Court in Khudiram Mandal vs. Jitendra Nath
& Anr. [AIR 1952 Calcutta 713], wherein, while considering a similar
situation in a proceeding under Section 145 of the Code, the High Court held
that if, in a case the Magistrate declares a person to be entitled to
possession he was also entitled to restore possession to the party, and it was
not necessary that he had to do so by one and the same order and it was open to
him to pass another order for restoration of possession on a subsequent date.
It was further
observed in the concurring judgment of Sinha, J., as follows :
"In the second
case, it is quite apparent that a further relief may be necessary. Merely
declaring the right of a party to possess might not bring him actual possession
and an order restraining the other parties from 11 disturbing his possession
would be meaningless unless he is restored to such possession. It is because of
this that the amendment of 1923 gave power to the Magistrate to restore
possession. On the other hand, a party may be content with an order for a
declaration and an injunction because the other party might give up possession
without further trouble or is driven to institute a suit, or for a variety of
reasons upon which we need not speculate. But I find nothing in S.145(6) which
makes it mandatory that an order for restoration of possession should form an
integral part of the original order and be passed at one and the same time as
the original order.
The final order would
be in the form given in Sch.V (Form 22) and later on, when a party is unable to
get possession, he can apply to the Court to act under the last part of
sub-s.(6) and restore possession to him. It is somewhat of an auxiliary order
and if an analogy is permitted in the nature of execution."
13.
Mr.
Sanyal concluded on the note that since no special circumstances had been
indicated in the impugned order of the High Court, which necessitated the
invocation of its powers under Section 482 of the Code, assumption of
jurisdiction thereunder, despite the bar imposed under Section 397(3) of the
Code, was without jurisdiction and vitiated the 12 order passed by it.
Furthermore, even the parameters within which the High Court had proceeded to allow
the application under Section 482 of the Code, was wholly misconceived and the
judgment of the High Court could not, therefore, be sustained.
14.
Mr.
Sanyal's submissions were strongly opposed by Mr. Narendra Kumar, learned
Advocate appearing for the respondent. He submitted that the very assumption of
jurisdiction by the Executive Magistrate under Section 145 of the Code was
erroneous since the order does not record that there was any apprehension of
breach of the peace to invoke the provisions of Section 145 Cr.P.C. He pointed
out that a dispute of a civil nature, without any likelihood of causing a
breach of the peace could not give rise to an order under Section 145 Cr.P.C.
In fact, likelihood of a breach of the peace is the sine qua non for invocation
of jurisdiction under Section 145(1) of the Code and in the absence of such
apprehension, the appellants would have to take recourse to a civil action and
13 not approach the Magistrate by way of proceedings under Section 145 of the
Code. In this connection, he also submitted that without any positive finding
by the Magistrate to the effect that the first party had been forcibly and
wrongfully dispossessed within two months next before the date on which the
report of a police officer or other information was received by the Magistrate,
the Magistrate could not have passed an order declaring the first party to be
entitled to possession of the property in question until evicted therefrom in
due course of law under Sub-section (6) of Section 145 of the Code. He
submitted that such an order ought not to have been made by the Magistrate
after a lapse of three years from the date of the original order under Sub-
section (4) of Section 145 of the Code declaring the first party to be in
possession. In fact, he also submitted that the Magistrate had become functus
officio and had no jurisdiction to pass the impugned order.
15.
Mr.
Narendra Kumar submitted that the respondent had been in continuous possession
of the disputed property since long before the initiation of the proceedings
under Section 145, which would also be evident from the petition of the
appellants herein.
He pointed out that
in the appeal it had been admitted that the respondent had been constructing a
house and was also living on the land.
16.
He
then submitted that the decision in Dayanand's case (supra) relied upon by Mr.
Sanyal had, in fact, been overruled in Krishnan's case (supra) and hence,
reliance upon the judgment in Dayanand's case could not be supported. Mr. Narendra
Kumar urged that while considering its earlier decision in Dayanand's case,
this Court in the latter case of Krishnan (supra) had also observed that
despite the bar of Section 397(3) of the Code, the relief contemplated under
Section 482 was still available, though it was required to be exercised
sparingly. Mr. Narendra Kumar submitted that the High Court had rightly
exercised its 15 jurisdiction under Section 482 of the Code in order to do
complete justice between the parties.
17.
We
have carefully considered the submissions made on behalf of the respective
parties and we see no reason to take a stand which is different from the stand
that was taken both in Dayanand's case (supra) and Krishnan's case(supra). It
is well settled that the object of the introduction of Sub- section (3) in
Section 397 was to prevent a second revision so as to avoid frivolous
litigation, but, at the same time, the doors to the High Court to a litigant
who had lost before the Sessions Judge was not completely closed and in special
cases the bar under Section 397(3) could be lifted. In other words, the power
of the High Court to entertain a petition under Section 482, was not subject to
the prohibition under Sub-section (3) of Section 397 of the Code, and was
capable of being invoked in appropriate cases. Mr. Sanyal's contention that
there was a complete bar under Section 397(3) of the Code debarring the High
Court from entertaining an 16 application under Section 482 thereof does not,
therefore, commend itself to us.
18.
On
the factual aspect, the Magistrate came to a finding that the appellants were
entitled to possession of the disputed plot. It is true that while making such
declaration under Section 145(4) of the Code, the Magistrate could have also
directed that the appellants be put in possession of the same. The question
which is now required to be considered is whether the High Court was right in
quashing the order passed by the Magistrate, which was confirmed by the
Sessions Judge, on the ground that the application made by the appellants under
Section 145(6) of the Code was barred firstly by limitation under Article 137
of the Limitation Act and also by virtue of Section 6 of the Specific Relief
Act, 1963. We are in agreement with Mr. Sanyal that the provisions of the
Specific Relief Act had been misapplied by the High Court in holding that the
appellants should have come for an order under Section 145(6) of the Code
within six months 17 from the date of dispossession, as provided in Section 6
of the said Act, as the Specific Relief Act has no application to a proceeding
under Section 145 Cr.P.C.
19.
But
the High Court has, however, taken a correct view with regard to the
application of Article 137 of the Limitation Act to the facts of this case.
The said Article is a
Residuary provision which provides for a limitation of three years within which
an order passed on any application for which no period with regard to
limitation is provided elsewhere in the Third Division relating to application,
can be challenged. However, under Section 145 of the Code, whenever an
Executive Magistrate is satisfied from a report of a police officer or upon
other information that a dispute likely to cause a breach of the peace exists
concerning any land or water or the boundaries thereof, within his local
jurisdiction, he shall make an order in writing, stating the grounds of his
being so satisfied, and requiring the parties 18 concerned in such dispute to
attend his Court for the purpose of settling their respective claims as regards
the fact of actual possession of the subject of dispute. Sub-section (4) of
Section 145 provides that the Magistrate shall then, without reference to the
merits or the claims of any of the parties, to a right to possess the subject
matter of dispute, after perusing the statements and hearing the parties and
receiving such evidence as may be produced, take such further evidence, if he
thinks necessary, and, if possible, decide whether and which of the parties
was, at the date of order made by him under sub-section (1), in possession of
the subject matter of dispute. The proviso to sub- section (4) provides that if
it appears to the Magistrate that any party had been forcibly and wrongfully
dispossessed within two months next before the date on which the report of a
police officer or other information was received by him or after that date and
before the date of his order under sub-section (1), he may treat the party so
dispossessed as if that party had been in possession 19 on the date of his
order under sub-section (1). Sub- section (6) empowers the Magistrate upon
arriving at a decision that one of the parties is or should be treated as
being, in such possession of the subject of the dispute, to issue an order
declaring such party to be entitled to possession thereof until evicted
therefrom in due course of law, and when he proceeds under the proviso to
sub-section (4), he may restore to possession the party forcibly and wrongfully
dispossessed.
20.
According
to the respondents, the provisions of Article 137 of the Limitation Act became
applicable when without implementing the provisions of sub- section (4) of
Section 145 immediately after it was made, the appellants had filed the
application for possession of the disputed plot to be made over to them after a
lapse of three years, while the period of limitation under Article 137 of the
Limitation Act is three years. The High Court was persuaded by the said
submission and accordingly allowed the criminal miscellaneous application filed
by the 20 respondents herein upon holding that restoration of possession had
been ordered after expiry of three years which was not permissible in view of
Article 137 of the Limitation Act.
21.
There
is no doubt that the High Court erred in applying the provisions of the
Specific Relief Act to a proceeding under Section 145 Cr.P.C., but as far as
making an application for implementation of the order passed under Section
145(4) Cr.P.C. is concerned, since no period of limitation is prescribed, the
same ought to have been filed within a period of three years from the date of
the order.
While the final order
in the proceedings under Section 145 Cr.P.C. was passed on 7th October, 1994,
the application for implementation of the same was made on 12th November, 1997,
which was beyond the period of limitation prescribed under the provisions of
Article 137 of the Limitation Act.
22.
The
decision cited by Mr. Sanyal does not come to his aid since there is no
confusion on the point 21 that an application under Section 145(6) may be made
to be put in possession of a property in respect of which the party has been
declared to be entitled to possession. Such an application cannot be made as
and when the person dispossessed chooses to do so.
It is for such
purpose that Article 137 has been pressed into service since no limitation has
been prescribed in Section 145 itself to indicate as to within which time a
party found to be entitled to possession could be put back in possession. There
is also no explanation forthcoming as to the cause of such delay. Accordingly,
even if the High Court was wrong in applying the provisions of the Specific
Relief Act to the facts of the case, the bar under Article 137 of the
Limitation Act cannot be avoided and the application made by the appellants for
being restored to possession in terms of a declaration made more than three
years before the making of the application has to be rejected.
23.
In
that view of the matter, the appeal is dismissed.
________________J.
(ALTAMAS KABIR)
________________J.
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