Patna High Court
Sahdev Mandal And Ors. vs Honga Murmu And Ors. on 13 September, 1966
Equivalent citations: AIR1967PAT223, 1967CRILJ907, AIR 1967 PATNA 223
ORDER
1. This application in revision is directed against an order of a magistrate dated the 9th June, 1065 by which he declared in a proceeding under Section 145 of the Code of Criminal Procedure, the second party to be in possession of the disputed land and directed the first party not to go over that land. The petitioners in this court constituted the members of the first party and the opposite party constituted the members of the second party in the proceeding under Section 145 of the Code. This application in revision was placed before Mr. Justice Anant Singh who while admitting the application was pleased to observe that, in view of the decision of Mahapatra J. in Abdul Sayeed Khan v. Jagarnath Nonia, 1965 BLJR 427 this application be heard by a Division Bench. Accordingly the case has been placed before us.
2. The practice of this court has always been that a person aggrieved by the final order of a Magistrate in a proceeding under Section 145, Code of Criminal Procedure has to go to the court of session in the first instance and request that court to make a reference to this court, if it is satisfied that the impugned order requires interference by this court, and when the Court of Session refuses to make a reference, the aggrieved party comes to this court, under Section 139 read with section 435 of the Code. In the instant case, however, the petitioners have come directly to this court without going to the court of Session; and the question involved in view of the decision of Mahapatra J. is whether the present applied (SIC) direct to this court should be entertained.
3. This question has arisen on account of a specific provision in the new Limitation Act of 1963 prescribing a period of limitation for an application in revision. This is prescribed by Article 131 of the new Limitation Act, which lays down that the period of limitation for an application to any court for the exercise of its powers of revision under the Code of Civil Procedure, 190S or the Code of Criminal Procedure, 1898, shall be ninety days from "the date of the decree or order or sentence sought to be revised." In the instant case the petitioners have requested this court to review the order of the learned Magistrate dated the 9th June, 1965.
4. Mr. S.K. Ghosal, who appeared for the petitioners, submitted that his clients could not take the risk of making an application to the court of Session for making a reference to this court, as ordinarily such applications are not disposed of by the court of Session within ninety days of the date of the order of the Magistrate and, therefore, if his clients waited for the order of the court of Session and that court refused to make a reference to this court, then the application to this court under section 439 read with Section 435 of the Code of Criminal Procedure would be time barred in view of the specific provisions contained in Article 131 of the new Limitation Act. That is the view which was taken by Mahapatra J. in the aforesaid case of Abdul Sayeed Khan, 1965 BLJR 427.
5. Mr. S.B. Sanyal, who appeared for the opposite party, has however submitted that this court should not depart from its well-established practice and should not encourage a party to come to it directly. According to him, the difficultly pointed out by Mr. Ghosal does not really arise, because the period of Limitation is to be counted from the date of the order of the court of Session refusing to make a reference to this Court. But it will be noticed that the period of limitation prescribed by Article 131 of the new Limitation Act is to run from the date of the order sought to be revised; and it is manifest that in cases like the present one the order sought to be revised is the order of the Magistrate passed in the proceeding under Section 145 of the Code of Criminal Procedure. It is difficult to appreciate Mr. Sanyal's argument that the order sought to be revised would be the order of the Court of Session refusing to make a reference to this court. Even, assuming for the sake of argument, that the order sought to be revised is the order of the court of session, then this court, if it is satisfied that the order is wrong, can only direct the Court of Session to make a reference to this court. This procedure will obviously be a cumbrous one and we are unable to agree that the legislature contemplated such a procedure. In fact, the petitioners are really aggrieved by the order of the Magistrate declaring their opponents to be in possession of the disputed property, and what they want is to quash and set aside that order.
6. Another argument of Mr. Sanyal was that even before the commencement of the new Limitation Act, according to the practice of this court, the period of limitation for an application in revision was ninety days, though there was no such provision in any enactment, and in those days an aggrieved party used to come to this court only after exhausting his remedy before a Court of Session. But, in the absence of any statutory period of limitation, this court entertained an application for revision after the expiry of much more than ninety days, when the Court of Session refused to make a reference, without any application for condonation of delay probably because, in the absence of any statutory law, this court counted the period of ninety days in such cases from the date of the order of the Court of Session refusing to make a reference.
In view, however, of the specific enactment in Article 131 of the new Limitation Act this procedure is not possible and the prescribed period of limitation cannot be counted from the date of such an order of the Court of Session. We, therefore, hold that in a case, where a party makes an application in revision to this court for setting aside an order of a Magistrate passed in a proceeding under Section 145, Code of Criminal Procedure, the period of ninety days prescribed by Article 131 of the new Limitation Act is to be counted from the date of the order of the Magistrate, and that, in such a case, the petitioner is not bound to approach the court of Session before coming to this court. In other words, we agree to the views expressed by Mahapatra J., in the case of Abdul Sayeed Khan, 1965 BLJR 427. The present application is, therefore, maintainable.
7. Coming to the merits of the case Mr. Ghosal drew our attention to the relevant provisions of Section 145 of the Code of Criminal Procedure and submitted that the affidavits filed by the parties in the case have not been considered at all by the learned Magistrate inasmuch as he has not applied his mind to the contents of the same, though he has discussed the other materials on the record. In Paragraphs 3 and 4 respectively of his order, the Magistrate has stated that the first and second party had each adduced the evidence of four witnesses. By this he meant that each of the two parties had filed affidavits of four witnesses in support of their respective cases. Then in paragraph 5 of his order he stated that from the statements of the witnesses of both sides, the facts cannot be correctly ascertained, and thereafter he had discussed the other materials on the record. He does not state anywhere in the impugned order why the facts cannot be correctly ascertained from the contents of the affidavits. This bare statement of his does not indicate that he applied his mind to the contents of the affidavits. He ought to have at least stated briefly the contents of the affidavits and indicated whether the witnesses were competent to speak about the possession of one party or the other or not, and reasons, if any, for discarding the statement of these witnesses should have been given.
It was, of course, not necessary for him to discuss in detail each of the affidavits but there should have been some discussion of the contents of the affidavits, at least as a whole to indicate that he had applied his mind to the same. Unfortunately, the learned Magistrate has not done so, and on this ground alone, the petitioners are entitled to succeed, because, under the new law, affidavits, are sworn by the parties and filed, Instead of examination of witnesses on oath, on the question of possession.
8. The order of the learned Magistrate dated the 9th June, 1965, is set aside and he is directed to decide the case in accordance with law on the materials already on the record.
9. The application is, accordingly, allowed.