Patna High Court
Gyani Dass And Ors. vs Dharam Dass And Ors. on 3 June, 1953
Equivalent citations: AIR 1954 PATNA 74
JUDGMENT
Misra J.
1. This petition is directed against an order dated 11-3-1953, passed by Mr. R. N. Sinha, Magistrate with first class powers at Motihari, for the payment of a sum of Rs. 27,000/- to the opposite party. The petitioners were second party in a proceeding under Section 145, Code of Criminal P. C. which was heard and decided in favour of the opposite party, who constituted the first party in the case.
The petitioners claimed possession over an area of 45 bighas out of a total area of 108 bighas of land. They are 38 persons in all, of whom petitioner 1 claims possession through the remaining 37 persons who appear as bataidars under him. The same relation is alleged as between opposite party 1 and the other members of that party, who claim as bataidars under him. Petitioner 1 and opposite party 1 claim the land in dispute and likewise the amount in deposit as mahanths. The final order in the 145 Cr. P. C. case was passed on 20-2-1953, in favour of the opposite party.
2. Dharam Dass, opposite party 1, applied on 25-2-1953, for withdrawal of the money in deposit as the successful party in the case under Section 145, Criminal P. C. on the ground that the money, which represented the sale proceeds of the yield from the land in dispute during the pendency of the attachment of the land under Sub-section 4 of Section 145, Criminal P. C., should be handed over to him as a necessary consequence of his success in the main case.
The learned lawyer for the petitioners appeared on 27th February and objected to the payment on the ground that his clients had obtained a copy of the judgment in the 145 Criminal P. C. case and that they were ready to move the higher Courts for setting aside the order, and that the learned Magistrate should, therefore, stay passing order for payment in favour of the opposite party. Time was accordingly granted fill 10-3-1953, for bringing stay order from the superior Court.
3. The petitioners accordingly moved the learned Sessions Judge of Motihari against the order in the case under Section 145, Criminal P. C. and prayed further that pending the hearing of the application by him, he should be pleased to issue an order for stay of payment of the amount in deposit to the opposite party. The learned Sessions Judge admitted the main application, but felt that he had no power to issue any order for stay of payment, and hence he refused to grant the prayer. The petitioners thereupon moved this Court.
It is not necessary to set out in detail the other facts regarding the course of the case in this Court except that on 11-3-1953, Mr. R. N. Sinha passed final order for payment of the amount in deposit to the opposite party against which the petitioners once again moved this Court and obtained the present rule. The matter was placed before me for final hearing, sitting as a Single Judge, when on 23-4-1953 I felt that the question being one of considerable general importance, and there being no authoritative pronouncement of this Court on the point, it was desirable that the case should be heard and disposed of by a Division Bench. It is accordingly placed before us for decision.
4. Mr. Baldeva Sahay, who appears in support of the application, has urged that the learned Sessions Judge was in error in holding that he had no jurisdiction to issue the order for stay of payment of the amount in question to the opposite party as the Code of Criminal Procedure made no such provision. He has invited our attention in this connection to Sections 517 and 520, Criminal P. C. It may be pertinent to quote Clause (1) of Section 517, Criminal P. C. which is in following terms :
"517 (1) When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal (by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise) of any property or document produced, before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence."
The argument is that the word 'inquiry' in this clause refers to an inquiry under Section 145, Criminal P. C., and since the inquiry in this case has admittedly terminated, the Court is authorised to pass such order as it thinks fit in respect of the property in its custody. When, therefore, the land in dispute comes into the custody of the Court by virtue of the order of attachment under Sub-section (4) of Section 145, Criminal P. C., and in that capacity the Court is also seized of the produce of the land or the money which represents the sale proceeds of the produce, it is money in the custody of the Court in respect of which the Court has to pass proper order for disposal. He has next invited our attention to Section 520, Criminal P. C. which in terms confers the same power on the Court of appeal, revision or reference.
The order under Section 517, Criminal P. C. is thus made a judicial order, and as such subject to alteration or control of the Superior Court in the same manner as any judicial order is subject to its supervision and control and correction. If, therefore, the justice of a case requires that the payment of a certain amount of money in the custody of a Court which is brought before it should be made in a particular manner, or that it should not be paid to any party at all for a certain period pending a more effectual adjudication, or in circumstances otherwise just, it should do so, and in case of a non-exercise or improper exercise of such power, the Court of reference or appeal or revision can correct it or alter it and pass the proper order.
The present case is a fit one for the purpose. The decision of the case under Section 145, Criminal P. C. is being challenged in due course, and in case the High Court sets aside the order on the point of possession, it will automatically affect the order under consideration. In this case, the justice of the case is further in favour of stay as the amount involved is fairly a big one and opposite party 1, in whose favour the order for payment is passed, is a mahanth without any private property, and it will be a highly complicated business to recover the amount from him. It may even be that the amount may not be recovered at all.
5. Learned counsel on behalf of the opposite party has raised the point that Sections 517 and 520, Criminal P. C. have no application to the case. These two sections have no application to an enquiry under Chap. XII, Criminal P. C. in which Section 145 of the Code occurs and which contains detailed provisions with regard to the manner of the disposal of the property, the subject-matter of the enquiry therein. He lays stress on Sub-section (4) of Section 145. Criminal P. C. which says that the Magistrate attaching the land can continue it only so long as the enquiry is on, and as soon as it is terminated, the attachment comes to an end as a matter of course, and the Magistrate has to make over possession to the party who is found entitled to possession, which means being in actual possession.
Learned counsel has drawn our attention in this connection to -- 'Munia Servai v. Than-gayya Onturiyar', AIR 1948 Mad 133 (A) which is a Single Judge decision of the Madras High Court and which, however, rests upon another decision of the same High Court, being the decision of a Division Bench, reported in --'Marudayya Thevar v. Shanmugasundara The-var', AIR 1926 Mad 139 (B). It has been laid down in these cases that as soon as proceedings under Section 145, Criminal P. C. have come to an end, the learned Magistrate who is seized of the matter has no jurisdiction to appoint a receiver or to stay the delivery of possession to the successful party.
To the same effect are the other decisions to which reference has been made in course of the argument. The case reported in -- 'AIR 1926 Mad 139 (B) represents an approach to the problem from the point of view of the inherent power of the Court to stay delivery of possession or stand in the way of the party entitled to be in possession after a declaration in his favour. Their Lordsships of the Madras High Court deprecated such a course of action and held further that the inherent jurisdiction for which provision is made in Section 561A of the Code is not meant to provide for such a situation.
The question how far and in what circumstances, if any, or if at all, the trial Court or Court of revision or reference can interpose by necessary order as consequential upon or incidental to the main order and whether it can apply to a case under Section 145, Code of Criminal Procedure is a wider question to which it is not necessary to give a definite answer in the present case.
A Single Judge of the Calcutta High Court in -- 'Mukutdhari Shao v. Ayodhya Shao', AIR 1949 Cal 241 (C) appears to incline to the view that so far as stay is concerned, the power may be exorcised, although with great respect to his Lordship, it must be said that there are observations in the judgment which are rather difficult to reconcile with each other upon the question of stay in a case under Section 145, Criminal P. C. His Lordship, Sen J., however, expressed himself as follows :
"Next I would point out that the Court is given powers of stay and not powers of restoration. The finding of the Court of first instance is that the petitioner first party was in possession at the relevant time mentioned in Section 145, Criminal P. C. and that his possession should be maintained by his being put in possession. Once he has been actually put in possession I cannot see what authority the Sessions Judge has of directing his eviction and putting some one else in possession in proceedings such as these. The Sessions Judge has no power to decide the question of possession finally. All the power that he has is to report the matter to this Court stating that the order passed by the Magistrate is wrong. He has by ordering restoration usurped the power of this Court which is the only Court which can finally determine the matter."
6. The point before us is a narrow one. It does not relate to a question of possession of immovable property, but it relates to money which is movable property and which is brought before the Court. Learned Counsel for the opposite party has urged that this should also be treated as part of immovable property as it has come into the custody of the court as part of the land in dispute, and as such it must be treated on the same looting,
7. It appears on a proper balancing of the arguments for the parties that the correct view in the matter would be that the present case is governed by the provisions of Section 517, Criminal P. C., and in consequence by Section 520, Criminal P. C. Section 145, Criminal P. C., Sub-section (4), refers only to immovable property and makes no mention of any step to be taken beyond the pendency of the attachment. The money which is retained by the Court as the income from the land is not under attachment; and Sub-section (8) of the section gives a discretion to the Magistrate to dispose of the sale proceeds in the manner he thinks proper. There is no mandatory provision that the Magistrate is bound to hand over the crop or sale proceeds to a particular party, and since the order under Section 145, Criminal P. C. is a judicial one and is revisable, Sub-section (8) is also likewise revisable. If, therefore, the Court would pass a palpably wrong or perverse order under Sub-section (8) of the section, the Superior Court would have the authority to rectify it in a suitable manner. Learned counsel finds it difficult to oppose this view "except by saying that Sub-section (8) is independent of Sub-section (4) of the section, a contention which is difficult to accept on a plain reading of the words employed therein. Even if Sub-section (8) be independent, it covers the case where the Magistrate has to order disposal of crop or sale proceeds thereof arising out of the land in dispute. This consideration merely lends additional support to the contention raised on the strength of Sections 517 and 520, Criminal P. C.
8. The conclusion, therefore, that I arrive at is that the present case is fit one, considering the amount involved and other circumstances, where we should stay the operation of the order for payment of the sum to the opposite party for a period of one month after the disposal of the application by the learned Sessions Judge for reference of the case under Section 145, Criminal P. C. to have the judgment and order in that case set aside, during which period it is likely that the petitioners would be in a position to move this Court against the order of the learned Sessions Judge refusing to make a reference when the petitioners would be free to renew their prayer for stay of payment of the amount in case their application against the main order is admitted by this Court. In the event of its rejection at the admission stage, however, opposite party I will be entitled in due course to receive payment of the amount by virtue of the order passed in his favour against which the present petition has been filed.
IMAM J.
9. I agree.