Madras High Court
Abdul Salam And Another vs Inspector Of Police R. 1 Mambalam Police ... on 4 May, 1993
Equivalent citations: 1994CRILJ578
ORDER
1. Petitioner Abdul Salam was tried for an offence punishable under S. 448, IPC in C.C. No. 661 of 1985 on the file of the IV Metropolitan Magistrate, Saidapet, Madras. After trial, the petitioner was found guilty under S. 448, IPC and was convicted and sentenced to pay a fine of Rs. 150/- in default to undergo rigorous imprisonment for one month. Petitioner has come up with this revision challenging the legality and propriety of the said judgment and the consequent conviction and sentence imposed on him.
2. Consequent to the conviction and sentence referred to above, P.W. 1 Dhanraj N. Kochar, petitioner in Crl. R.C. 702 of 1989 filed a petition under S. 456, Cr.P.C. before the IV Metropolitan Magistrate, Saidapet, Madras, for the restoration of the possession of the premises bearing door number 26, Ranganathan Street, T. Nagar, Madras in Cr.M.P. 138 of 1987 in C.C. 661 of 1985 and it appears from the case records that the learned trial Magistrate without ordering notice to the respondent, namely the petitioner in Crl. R.C. 809 of 1987 allowed the same on 22-12-1987 and whereupon directed the Inspector of Police, Law and Order, T. Nagar, to restore possession of the said premises and hand over to P.W. 1 after giving adequate time for him. Aggrieved at this, it appears the respondent therein, namely the petitioner in Crl. R.C. 809 of 1987 preferred an appeal before the learned Sessions Judge at Madras. But as there was a delay of 600 days in filing the same Crl. M.P. 3057 of 1989 was filed by the revision petitioner under Art. 5 of the Limitation Act to condone the delay. On hearing both parties, namely the revision petitioners in Crl. R.C. 809 of 1987 and 702 of 1989 as the petitioner and respondent respectively, the learned Sessions Judge, in his order dated 29-11-1989 for the reasons and findings given in the same has condoned the delay of 600 days and consequently the above appeal was numbered as O.A. 264 of 1989 on the file of the Principal Sessions Judge, Madras. Aggrieved at this, Crl. RC 702 of 1989 was filed challenging the legality and propriety of the same.
3. In the context of the pendency of Crl. RC 809 of 1987 and Crl. RC 702 of 1989 before this Court, the above appeal in C.A. 264 of 1989 relating to the very same issue was withdrawn and transferred to the file of this Court and numbered as Crl. RC 389 of 1992. Since the substantial issue arising in these three revisions relates to one and only dispute as to whether the finding of the trial Magistrate that the accused had committed the offence of house trespass is correct or not and the parties involved are the same, with the consent of the Bar, I have proposed to deliver a common order.
4. One another fact which has become necessary to refer at this stage is that in pursuance of an order passed by this Court on 5-8-1989 made in Crl. MP 1456 of 1988 respondents 2 to 5 were added as parties in Crl. RC 809 of 1987.
5. The short facts of the prosecution case which are necessary to appreciate the relevant cases on hand are stated as follows :
P.W. 1 Dhanraj N. Kochar, purchased the building situated in door number 26, Renganathan Street, T. Nagar, Madras and become the owner. He requested all the tenants to vacate and deliver vacant possession. The petitioner in Crl. RC 809 of 1987 was one of the tenants therein conducting a teashop. To comply with the request, it appears that both petitioner and P.W. 1 agreed that on payment of Rs. 50,000/- by P.W. 1 to the petitioner, petitioner has to vacate and delivered the tenanted premises in question. Accordingly, it appears that P.W. 1 has given a cheque for a sum of Rs. 50,000/- to the petitioner and that the petitioner has not accepted the cheque since he had no banking accounts but however has demanded that the said amount is to be paid in cash. Therefore on 28-3-1984 the petitioner received Rs. 50,000/- in cash and accordingly he vacated the premises in question and handed over possession of the said premises by giving the key to P.W. 1. This was according to P.W. 1 evident from Ex. P.1 the unused cheque. It is true the case of P.W. 1 that he has taken possession of the said premises. Necessary endorsements were made by P.W. 2 on the back of the cheque and the petitioner had subscribed his signature. Consequently, P.W. 3 and P.W. 4, amployees of P.W. 2, who is running a detective agency and a lawyer by registration but not practising took charge of the building and P.W. 4 was guarding the same which was kept under lock and key. In this backdrop at about 3-30 p.m. on 29-3-1984, the petitioner along with men numbering about ten forciably broke open the lock of the premises in question and entered into the same in spite of resent exhibited by P.W. 4 occupied the premises. Then, on information given by P.W. 4 to P.W. 2, P.W. 1 gave a complaint to R.1 Mambalam P.S. but however it was taken by P.W. 7 the then Inspector of Police as per the orders passed by this Court in W.P. No. 5006 of 1984 dated 7-11-1984 and registered the same in R. 1 Mambalam P.S. Cr. No. 2006 of 1984 for the offence under S. 448, IPC and proceeded with the investigation. He had been to the place of occurrence, prepared the observation mahazar Ex. P.3 and a rough sketch Ex. P.4. He examined P.Ws. 1 to 5 and other witnesses. He sent a report to the Corporation authorities to cancel the licence given to the petitioner on 19-12-1984. He arrested the petitioner and released him on bail. After completing the investigation, he laid the final report against the petitioner in the court of law on 31-1-1985.
6. When the petitioner was examined by the learned trial Magistrate under S. 313, Cr.P.C. with regard to the incriminating circumstances appearing against the accused in evidence, he denied his complicity in the crime and examined 3 witnesses on his behalf.
7. On assessing the oral and documentary evidence let in on behalf of the prosecution through P.Ws. 1 to 7 and the oral and documentary evidence let in on behalf of the petitioner through D.Ws. 1 to 3, the learned trial Magistrate found the revision petitioner guilty for the offence under S. 448, IPC and convicted and sentenced the petitioner as stated earlier. Aggrieved at this, the present revision in Crl. R.C. 809 of 1987 is sought for as stated above.
8. Mr. K. V. Sridharan, learned counsel appearing for the petitioner in Crl. R.C. 809 of 1987 attacked the impugned judgment of the learned trial Magistrate with reference to its illegality and erroneous approach mainly on the basis that Ex. P.1, the unused cheque allegedly given by P.W. 1 did not prove or render any assistance to the false claim of P.W. 1 in this case. It is seen that with regard to the purchase of the building door number 26, Ranganathan Street, T. Nagar Madras, very much involved in this case by P.W. 1 followed by his request to all the tenants to vacate and the fact that the revision petitioner demanded a sum of Rs. 50,000/- for vacating and delivering the vacant possession of the premises in dispute and for which P.W. 1 has agreed and that consequently, a cheque for a sum of Rs. 50,000/- was given to the revision petitioner by P.W. 1 are all admitted facts and in regard to the some, there is no controversy or dispute. It is also the common case that since the revision petitioner had no accounts in any of the banks, he did not accept the cheque Ex. P.1 and demanded payment of the said amount in cash. Here the dispute arose. It was the claim of P.W. 1 that on the non-acceptance of the cheque he has paid a sum of Rs. 50,000/- in cash to the revision petitioner on 28-3-1984, which was acknowledged by the revision petitioner by putting his signature on the back of the cheque Ex. P.1. The tenor of the defence seems to be that he was not paid a sum of Rs. 50,000/- as agreed but only a portion by getting his signature and that as such, he never vacated and delivered the vacant possession of the premises in his occupation but, however, he did not dispute his signature found on the back of Ex. P.1. It was the consistent claim of P.Ws. 1 to 5 that at about 3-30 p.m. on 28-3-1984 itself after having received the entire amount of Rs. 50,000/- in cash, the revision petitioner has vacated the premises in his occupation and delivered the vacant possession and that consequently P.Ws. 1 to 4 took charge of the same by putting the lock and key and engaged P.W. 3 and P.W. 4 to guard the same. It was denied by the revision petitioner. A mere glance of the back of Ex. P.1 and the relevant endorsement made therein marked as Ex. P.2 reveals the fact that on the right hand side just above the bottom, a revenue stamp has been affixed and it is engrossed with the date 28-3-1984. Just a little above it the writing "Received cash fifty thousand only" is found in existence and below that there is the signature of M. Abdul Salem. At the top of Ex. P.2 it is written as "Handed over Vacant possession and Tenancy Terminated". It has to be noticed further that on the bottom portion of the left hand side of Ex. P.2, a seal by the rubber stamp "For Kayee Detective Agency (P) Ltd. and below it Director" is there. An initial with date 28-3-1984 is found above the word Director. To the seal on the right hand side it is written as "(K. Chandrasekaran B.Sc., B.L., Director Akycee Detective Agency (P) Ltd. 4 Noth Usman Board, Madras. 17). This document Ex. P.1 and Ex. P.2, perhaps was relied on by the learned trial Magistrate totally in favour of the case of P.W. 1 and upon the basis of which, he has given his finding against the revision petitioner apart from the oral evidence. The learned counsel appearing for the revision petitioner contended that the endorsements made in Ex. P.1 and Ex. P.2 cannot be relied on for any purpose and that so much so, placing reliance upon the same by the learned trial Magistrate is totally incorrect and cannot be sustained in law. A perusal of the evidence of P.Ws. 1 and 2 clinches the fact that the revision petitioner has put his signature alone in Ex. P.8. The other wordings are written by P.W. 2 when the cash of Rs. 50,000/- was paid by P.W. 1 to the revision petitioner. At this juncture, it has to be noticed that though a considerably big amount of Rs. 50,000/- is claimed to have been paid to the revision petitioner, no receipt was obtained from him by the prosecution witnesses but, however, they have relied on a simple signature subscribed by the revision petitioner along. The words written above the signature pertaining to the receipt of cash of Rs. 50,000/- only though claimed by P.W. 2 that it was written by him, it is manifestly clear that it was written by some on else and not by P.W. 2 for the simple reason that the other writings written by P.W. 2 "Handed over Vacant Possession and Tenancy Terminated" and the full address of the attestor P.W. 2 as witness and his writing totally differs with the writings "Received cash fifty thousand only". Then the words found on the top of Ex. P.2 as well as in the bottom pertaining to the words handed over vacant possession and tenancy terminated and the address are similar in nature and appears to be neat and legible writings "Received cash fifty thousand only" is made in some what shabby manner and it appears to have been written with different ink and different pen. This anomaly and difference creates a serious doubt in the claim of the prosecution witnesses.
9. One another important circumstance which arises in this case projecting a serious doubt upon the claim of P.Ws. 1 to 5 is that P.W. 2 is an Advocate by registration and a director of a private detective agency was present throughout the transaction more particularly, when the amount of Rs. 50,000/- was allegedly paid in cash in token of agreeing to vacate and hand over the vacant possession of the premises in question by the revision petitioner. It was not the case of the prosecution that the whole transaction was completed so urgently and all of a sudden. It is manifest that since the date of purchase on 11-2-1984, P.W. 1 was insisting and demanding the revision petitioner for vacant possession. Nagotiations were taken and it was agreed that he has demanded a sum of Rs. 50,000/- and consequently, a cheque was granted to him on 28-3-1984 but however it was not accepted. Then on the next day, it was claimed that the whole transaction took place. Viewing the matter in this context it is the common prudence which requires that a detailed possession receipt must have been prepared and obtained from the revision petitioner and this kind of legal knowledge is expected from P.W. 2, who is a person expected to assist P.W. 1 legally and not by illegal means as claimed. The presumption of law necessarily required that the termination of the tenancy cannot be done in a casual way as claimed in this case. There is no explanation either from P.W. 1 or from P.W. 2 regarding the need and necessity to write such an endorsement on the back of the Cheque. Even so, the revision petitioner has not subscribed his signature upon the Revenue Stamp affixed therein. A mere glance of this Ex. P.2 clinches the fact that the revenue stamp was affixed subsequently and whereupon the date 28-3-1984 was put as evident from the fact that the date was also put by means of a different pen using different ink. None of the prosecution witnesses have given the explanation for the above said serious doubts as pointed out above. It is significant to note that the trial Magistrate has not even applied his mind on this score but however overlooked the same and went to believe the oral claim of P.W. 1.
10. That apart, it was the claim of P.Ws. 1 to 4 that on 28-3-1984 by removing all of his articles, the revision petitioner had vacated the premises and handed over the key to P.W. 1. If that is so, nothing prevented P.W. 1 or P.W. 2 to obtain written receipt from the revision petitioner/accused in token of having handed over the key of the rented premises. But he did not do so. If the aspect of the payment of a sum of Rs. 50,000/- claimed by P.Ws. 1 to 4 to the revision petitioner is accepted, then the normal conduct on their part would be to insist the revision petitioner and get a receipt for the same. But in the absence of such acceptable, adequate and convincing proof by placing reliance upon the most suspicious circumstances and stray writings made in Ex. P.2 in different places in different pen using different ink it is clear that P.Ws. 1 to 4 deliberately suppressed the true facts and have not come forward with the real version, which would mean that the prosecution witnesses have miserably failed to establish the complicity of the revision petitioner in the crime.
11. The evidence of P.W. 3 and 4 on the one hand and P.W. 5 and P.W. 6 on the other hand is highly suspicious in nature as they closely interested with P.Ws. 1 and 2. If really the revision petitioner had trespassed at about 3-30 p.m. on 29-3-1984, in the context that it was immediately reported to P.W. 2 over phone, there is no reason to expect P.W. 1 to visit the place and report the matter to the police on the next day morning.
12. It was to be noticed that P.W. 2 during his cross-examination has admitted candidly that he did not obtain any receipt either for the payment of money or possession receipt or for the agreement to vacate and deliver vacant possession from the revision petitioner but, however, claims that all the writings found in Ex. P.2 belong to him. He would further admit that when Ex. P.2 was written, the revision petitioner had not vacated the rental premises. It is further ...... significant to note that P.W. 3 and P.W. 4 were also present during the time when Ex. P.1 and Ex. P.2 was prepared and money was handed over to the revision petitioner but none appear to have attested Ex. P.2. It is thus seen after a careful analysis of the entire oral and documentary evidence let in by P.Ws. 1 to P.W. 6 would clinchingly go to show that the version of the prosecution witnesses are highly suspicious in nature and character, full of grave doubts but however failed to establish the fact that the revision petitioner had vacated and surrendered the rental premises in question at about 3-30 p.m. on 28-3-1984 as claimed. It was the specific claim of the revision petitioner that he never vacated or surrendered the possession. In support of his claim, he has examined three witnesses on his behalf. The defence witnesses were the interested persons of the accused. The cumulative effect of their consistent claim was that on the relevant day in question, the revision petitioner never vacated or surrendered the possession but however was running the business in the rental premises as usual.
13. The subsequent proceedings taken in the appellate courts would reveal that P.W. 1 has paid only a sum of Rs. 35,000/- as admitted by the revision petitioner and that the balance was not paid by P.W. 1 as agreed and that, therefore, the revision petitioner was not made to vacate and deliver the vacant possession as claimed and as per the direction, he had paid a sum of Rs. 20,000/- subsequently to P.W. 1 and the rest of Rs. 15,000/- as Court deposit, as represented ..... by the bar.
14. One another important aspect to be noted in this case is that the revision petitioner had filed a suit before the civil court against P.W. 1 seeking, perpetual injunction against him restraining him from interfering with his peaceful possession and enjoyment of the rental premises in question but however, it appears from the records that the trial court has rejected the suit but in the appeal, the revision petitioner has succeeded and the appellate court has granted a decree for a perpetual injunction in A.S. 202 of 1987. Probably on the basis of the decree of injunction granted in favour of the revision petitioner and against the prosecution witness P.W. 1, the subsequent petition filed under S. 456, Cr.P.C. for restoration of possession was rejected by the learned trial Magistrate. It would appear further that aggrieved at the decree passed by the appellate Court in favour of the revision petitioner herein, an appeal preferred by P.W. 1 in this court is pending with the interim order for the stay of the operation of the decree. Thus, it is seen that with regard to the possession of the rental premises by the revision petitioner, the matter is pending adjudication in civil Courts and the decree of injunction passed by the appellate Civil Court is to be noted in the context that the revision petitioner is in actual possession and enjoyment of the rental premises in question. The learned trial Magistrate, however, it appears that by overlooking all the above important legal aspects and very material circumstances, proceeded merely on the basis of the self-serving oral claims of P.Ws. 1 to 4, which in my firm view is clearly an erroneous approach which cannot be sustained in law. With result, the impugned judgment of the learned trial Magistrate is vitiated with not only error of law but also with illegality and impropriety. A careful perusal of the recorded oral and documentary evidence and other circumstances brought out and established in this case clinchingly proves the fact that the revision petitioner/accused had not committed criminal traspass not vacated and surrendered the vacant possession of the rental premises bearing door number 26, Ranganathan Street, T. Nagar, Madras on 28-3-1984 or at any point of time and that therefore the concept of house trespass held by the learned Magistrate against the revision petitioner is liable to be set aside.
15. Mr. K. V. Sridharan, learned counsel appearing for the petitioner then raised a legal question pertaining to the error of law committed by the learned trial Magistrate disregarding the very legal object in built in S. 210 of the Code of Criminal Procedure. Then, the learned counsel drew my attention to the one sentence reference (to which was) made at the end of paragraph 4 of the judgment by the learned trial Magistrate, which in ........ substratum translated into English reads as follows :-
"P.W. 1 gave a private complaint before the court and that was taken as C.C. 2052/1984 on the file and that thereafter that the said private complaint given by P.W. 1 was clubbed together with this case."
It appears from the records that the said private complaint taken on file in C.C. 2052 of 1984 on the file of the XVII Metropolitan Magistrate, Saidapet, Madras given by P.W. 1 against the revision petitioner on the basis of the sworn statement, was sent for and however, according to the impugned judgment, it was clubbed with the present case in question by the learned trial Magistrate. This observation of the learned trial Magistrate has been questioned by the learned counsel as it has not been in compliance with S. 210 of the Code of Criminal Procedure, which runs as follows :
(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry of trial held by him that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating Police Officer under S. 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
16. In Chinnu Naicken v. Rangasamy 1982 LW (Crl) 160 : (1983 Cri LJ 494), a learned single Judge of this court has held as follows :-
"It is permissible to hold a joint trial of the accused named in the police report and the accused named in the private complaint, amalgamating the two, even though the accused in the police report may not all be the same as those in the complaint. It is better for the purpose of a proper appraisal if the two cases are clubbed together as the persons accused are involved in the same offence arising in the course of the same transaction. The foundation for the charge is one and the same and it is only just that there should be one trial."
In Kadiresan v. Kasim 1987 LW (Crl.) 64 : (1987 Cri LJ 1225) David Annoussamy, J. has observed as follows :
"The error of the Magistrate arose from the fact that he made a confusion between joint trial and complete amalgamation of cases. As held by the Supreme Court there cannot be amalgamation of cases when joint trial is permitted.
When using a loose language, two cases are said to be clubbed, that means ...... that they are being tried together but that cannot make any one of those cases to lose its identity. Once in a matter summons has been issued by the Magistrate, unless the accused is discharged, the case continues to exist and therefore, judgment should indicate that.
The Court, while ordering that both the cases would be clubbed in respect of this occurrence has practically merged them which it had no jurisdiction to do. Since it is clear from the language of S. 210, Cr.P.C., that both the cases exist side by side and continue to have their specific identities and the court has no jurisdiction to merge them it is always better to avoid terms like 'clubbing and to use the language of the Code itself, that it to say 'trying together'. Since the court below has committed a gross error which has effected the interests of justice in both the cases, the revision petition has to be allowed, and the trial court while dealing with the matter should follow the guidelines indicated by the Supreme Court in Harjinder Singh v. State of Punjab 1985 SCC (Crl) 93 : (1986 Cri LJ 831 ....... In the present case, the Magistrate did not act at the beginning strictly in accordance with S. 210, Cr.P.C. by way of staying the proceedings and calling for a report. But after the case filed by the police has been transferred to his court the Magistrate has become aware that the cases were covered by S. 210, Cr.P.C. and he purported to act under that section. As per that section, the merging of the cases is not contemplated. What is contemplated is only that the cases be tried together.
As per S. 210, Cr.P.C. the two cases continued to exist separately. But both the cases should be tried as if both of them have been instituted on a police report, from the time the Magistrate has taken cognizance of an offence under the report. It is to be noted that this contingency may happen at any stage of the private complaint case because the Magistrate would have stayed that case only when it has been made to appear to him that an investigation by the police is in progress in relation to the same subject matter."
In Samraj and 9 others v. Saravanchami and State 1990 LW (Crl) 370, following the decision of David Annoussamy, J, Arunachalam, J. has observed that S. 210, Cr.P.C. would not permit literal merging of the cases, for the separate identity of the two different prosecutions, though in respect of the same occurrence could not be overlooked and they may have to be dealt with together side by side.
The Supreme Court in Manikandan v. Pandian, 1990 SCC (Crl) 203 has observed as follows :
"Before parting with the case, it may be necessary to point out that the two cases however, cannot be consolidated and tried together though the case instituted on private complaint is in respect of the same offence for which the charge-sheet has been filed against the first accused. The entire evidence in the case may not be the same. It may, therefore, be proper to record the evidence separately in both the cases unless the witnesses are common. The cases be tried one after another. In this context, we invite the attention of the parties and the trial Court to have regard to the principles laid down in Harjinder Singh v. State of Punjab."
Thus, it is made clear that in order to have a joint trial or amalgamation of two cases identical in nature between the same parties, involving the same set of facts and evidence, it requires a finding and order on the basis of the above materials referred, according to the plain reading of Section 210, Cr.P.C. If the evidence let in in both the cases are identical in nature and common, nothing is illegal for the trial Magistrate to have a joint trial but however, it can be made by a proper reasoning, otherwise, it is not valid in law. With the result, Section 210, Cr.P.C. cannot be invoked. In the light of the above enunciated legal position and made applicable to the instant case, pertaining to the private complaint taken on file before the XVII Metropolitan Magistrate in C.C. 2052 of 1984 was made amalgamated or clubbed with the present case without any reasoning what-soever or in the absence of specific finding for the amalgamation or clubbing, the same is not in consonance with the provision of law contained in Section 210, Cr.P.C. Therefore, I have no hesitation to hold that the very approach adopted by the learned trial Magistrate is totally against the legal position enunciated in Section 210, Cr.P.C. and is clearly an erroneous one and on this ground, also the impugned order in Crl RC 809 of 1987 has to be interfered with.
17. During the course of the argument it came to light that P.W. 1, the complainant and his family members were added as respondents 2 to 5 by an order passed by this Court. Regarding this, I have heard the Bar, who have no dissent of any kind with my following observations :
This is a case in which the impugned judgment of conviction and sentence was passed by the learned trial Magistrate out of a complaint lodged by P.W. 1 but the chargesheet was filed by the Inspector of Police, R-1. Mambalam Police Station. Therefore, he is deemed to be representing the State and upon the full trial, the learned trial Magistrate, recorded his judgment of conviction and sentence with a fine of Rs. 150/- and aggrieved at this, the above revision was preferred. In this context, there cannot be any dispute or two views that in the above revision, the aggrieved party is the State, namely, the Inspector of Police, Mambalam Police Station and not P.W. 1, complainant. The criminal law is however not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Though P.W. 1 happened to be the complainant, aggrieved and against whom the revision petitioner had caused injury, the State is deemed to be the aggrieved party in a police case. Therefore, it is the well settled principle that barring a few exception, in criminal matters the party who is treated as the aggrieved party is the State this is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book. Disregarding this above fact, it is not known under what circumstances and exception, respondents 2 to 5 were ordered to be added as parties in this revision and that they have a right of audience also. No private party is deemed to be the aggrieved party in criminal law unless it is shown that they are coming under the exceptions provided under law. But learned (sic) the adding of the respondents 2 to 5 in this revision cannot but for a moment justify as necessary party and as such, they have no right of audience. On this ground also, the revision succeeds.
18. Now, I may deal with Crl. R.C. 702 of 1989, and 389 of 1992. After the passing of impugned judgment of conviction and sentence in CC. No. 661 of 1985 on 9-11-1987, he passed the impugned order in Crl. M.P. 138 of 1987 which was one filed under Section 456, Cr.P.C. by P.W. 1 for the restoration of possession of the rental premises in question, on 22-12-1987 allowing the same and against which, an appeal seems to have been filed however with a petition to condone the delay of 600 days in filing the above said appeal before the learned Principal Sessions Judge, Madras in Cr. M.P. 3057 of 1989. In approaching the explanation for such delay, it was contended on behalf of the respondent in Crl. R.C. 702 of 1989 that instead of preferring an appeal, filing of Crl. R.C. 809 of 1987 on the file of this Court and obtained a stay therein against the impugned order passed by the learned Magistrate, ordering for the restoration is the sole cause for such delay. But however, in the light of the liberty given by this Court made in Crl. M.P. 13761 of 1987, the respondent/accused is entitled to canvass the appeal, though the delay in filing the same had happened. The order in Crl. M.P. 13761 of 1987 in Crl. R.C. 809 of 1987 was passed by this Court on 31-10-1989 and till that date, the stay order granted by this Court was in force. Finding that the reasoning for not filing any appeal canvassing the order of restoration passed by the learned Magistrate and instead obtaining a stay in Crl. R.C. 809 of 1987 was a legal misconception taken by the Bar and for the other circumstances specified and observed in the impugned order, the learned Sessions Judge has condoned the delay of 600 days in filing the appeal by the respondent/accused and ultimately allowed the petition. With the result, the appeal was numbered and pending on the file of the Principal Sessions Judge, Madras. Canvassing the impugned order passed by the learned Principal Sessions Judge, in Crl. M.P. 3057 of 1989 dated 28-11-1989 P.W. 1 has preferred a revision before this Court (i.e.) Crl. R.C. 702 of 1989. However, it transpires that since the two revisions namely Crl. R.C. 809 of 1987 and 702 of 1989 is between the same parties relating to the same incident on the identical evidence and pending before this Court, with a view to avoid any conflict of decisions the criminal appeal 264 of 1989 pending on the file of the Principal Sessions Judge, Madras was withdrawn and transferred to the file of this Court and numbered as Crl. R.C. 389 of 1992.
19. In have carefully gone through the reasoning and finding given in detail by the learned Sessions Judge in passing the impugned order involved in Crl. R.C. 702 of 1989, condoning the delay of 600 days in filing the appeal. Mr. A. Natarajan, learned counsel appearing for the petitioner in that case was not able to convince me with the error to law or the illegality committed by the learned Sessions Judge in condoning the delay. It appears to me all the more that the reasoning and the findings given by the learned Principal Sessions Judge are justifiable, perfectly valid and in consonance with the legal norms and concept. It is therefore clear, that nothing was made available to interfere in the impugned order passed by the learned Sessions Judge in Crl. M.P. 3057 of 1989 on 29-11-1989 and this revision Crl. R.C. 702 of 1989 has no merit accordingly.
20. Coming to the points involved in Crl. R.C. 389 of 1992, the following facts are necessary for the proper appreciation of the case. The judgment in C.C. 661 of 1985, the subject-matter of Crl. R.C. 809 of 1987 was delivered on 9-11-1987 and whereupon, the revision petitioner/accused was found guilty and sentence awarded. Following this judgment, it transpires from the records that P.W. 1 filed a petition under Section 456, Cr.P.C. before the learned trial Magistrate in Crl. M.P. 119 of 1987 on 9-11-1987. But for the reason of a decree of injunction granted in favour of the accused in civil appeal and the possession of the accused was protected by the decree of the civil court, the said petition was dismissed on 10-11-1987. Therefore, it is clear that on the very next day of the judgment, finding the petitioner/accused guilty, a petition under Section 456, Cr.P.C. was filed and on the third day, it was dismissed and consequently, the relief of restoration of possession was rejected. The matter did not end here. But however, on 21-12-1987, P.W. 1 filed another petition Crl. M.P. 138 of 1987 under Section 456, Cr.P.C. for the same relief and it was allowed by the learned trial Magistrate on 22-12-1987, which is the subject-matter of Crl. R.C. 389 of 1992. The very date of filing Crl. M.P. 138 of 1987 before the trial Magistrate and disposal of the same manifestly proves that it was made after 42 days. Mr. K. V. Sridharan, learned counsel, challenged the impugned order passed by the learned Magistrate on the following grounds :
(1) The learned trial Magistrate is not competent to pass the impugned order in a petition filed for the second time, namely, after a lapse of 30 days as legally provided in the proviso to Section 456, Cr.P.C. while stating so, the learned counsel drew my attention to Section 456, Cr.P.C. which empowers the Magistrate within 30 days from the date of conviction, to restore possession from the accused to the person upon whose complaint, the accused was found guilty, and contended that the law is so specific in providing a period of 30 days limitation for the trial Court to order for the restoration of the property following the conviction of the accused for the relevant offence.
(2) While the first petition Crl. M.P. 119 of 1987 was dismissed by the learned trial Magistrate on 10-11-1987, the second petition filed for the same relief on 21-12-1987 as Crl. M.P. 138 of 1987 which is beyond the prescribed period is not maintainable and that so much so, the impugned order is out of time and as such, it is liable to be set aside.
(3) While passing the impugned order, the revision petitioner, being the aggrieved person, in actual occupation and possession of the rental premises in question by running a tea shop was not served with any notice and it is against the principles of natural justice.
(4) When the judgment of conviction and sentence as well as the decree in favour of the accused by the civil court granting perpetual injunction are being canvassed in appeals before this Court, the impugned order for restoration of possession is without competency and is liable to be set aside.
21. In as far as the first contention is concerned, to appreciate the same, Section 456, Cr.P.C. has to be understood properly, which reads as follows :-
(1) When a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and it appears to the Court that, by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the Court may, if it thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary, any other person who may be in possession of the property :
Provided that no such order shall be made by the Court MORE THAN ONE MONTH AFTER THE DATE OF THE CONVICTION.
Clause (4) of the above section is also relevant which runs as follows :
"No order made under this section shall prejudice any right or interest to or in such immovable property which any person may be able to establish in a civil suit."
Keeping the legal ingredients built up in the above Section in mind and made applicable to the facts of the instant case, it is seen that the revision petitioner was found guilty for the offence under Section 448, I.P.C. on 6-11-1987 and the learned Magistrate, while passing the impugned judgment has not ordered for the restoration of possession of the rentral premises in question as contemplated under this section of law. But however, it is also seen that the first petition filed as Crl. M.P. 119 of 1987 was rejected by the learned trial Magistrate on 10-11-1987 on the ground that there was a decree of the civil court for the relief of permanent injunction against P.W. 1 and others not to interfere. The fact that an appeal was preferred against that decree before the appellate Court and stay was granted was altogether a different matter. But however, what is relevant at this stage is that Crl. R.C. 809 of 1987 was filed before this Court and is pending. Then again another petition Crl. M.P. 138 of 1987 was filed before the trial Magistrate, for the same relief of restoration of possession on 21-12-1987, which is admittedly beyond one month's time, which was allowed by passing the impugned order under this revision. The proviso to Section 456, Cr.P.C. appears to be mandatory in nature and if at all any order for the restoration for possession by the learned Magistrate is required to be passed, that can be done only within one month of the passing of the judgment of conviction. If this is so, the impugned order by the learned Magistrate for the restoration of possession of the rental premises for any reason whatsoever should have been on or before 9-12-1987 and beyond that, he is not competent to pass any order. It is under these circumstances, some force is available in the contention of the learned counsel for the revision petitioner.
22. In K. Lakshhamma v. State of A.P. (1980 MLJ (Crl) 294), a Bench of the Andhra Pradesh High Court while dealing with the scope of Section 456, Cr.P.C. has observed as follows :
"The proviso to Section 456(1), Criminal Procedure Code, leaves no doubt whatsoever that such order of restoration cannot be made by the Court more than one month after the date of the conviction. There is no dispute that by 7th July, 1978 the period of one month had already elapsed, and the question is whether because the petition for restoration was filed within one month from the date of conviction, the Magistrate had the jurisdiction to pass an order for restoration on any day beyond the period of one month from the date of conviction. A plain reading of the section leaves no alternative but to hold that the Magistrate has become functus officio and had no longer any jurisdiction to pass such order of restoration after the expiry of one month from the date of conviction."
There cannot be any dispute with regard to the relevant date of filing the petition for restoration of possession under Section 456, Cr.P.C. on 21-12-1987, 12 days beyond the limitation period provided under the proviso to the above section of law in this case and the passing of the impugned order of restoration of possession on 22-12-1987 as such in the instant case is perfectly not in consonance with the proviso and the period of limitation provided in Section 456 of the Code of Criminal Procedure. Therefore, I have no hesitation, by applying the above principle of law to the facts in the instant case to hold that the impugned order is totally without competency and not valid in law and as such liable to be set aside. In the light of my opinion of the above reasonings, with regard to the other points raised by the learned counsel for the petitioner, to give by reasoning or finding, I feel it is totally unnecessary and as such I do not propose to enter into the validity or otherwise of the same. Therefore, have regard to the non-compliance of the legal procedure as aforesaid, I feel that the learned trial Magistrate in passing the impugned order involved in this revision has clearly fallen into an error and adopted a wrong approach without having any regard to the legal ingredients in built in Section 456 of the Code of Criminal Procedure and that therefore, the same is liable to be interfered with. No other points were argued before me in all the above three revisions.
23. In the result, Crl. R.C. 809 of 1987 succeeds and accordingly, it is allowed. The conviction and sentence recorded against the accused/revision petitioner by the learned trial Magistrate in C.C. 664 of 1985 dated 9-11-1987 is hereby set aside. Fine amount paid if any, is ordered to be refunded to the petitioner/accused forthwith. Crl. R.C. 702 of 1989 fails and accordingly, it is dismissed. Crl. R.C. 389 of 1992 succeeds and accordingly, it is allowed. The impugned order of the learned trial Magistrate passed in Crl. M.P. 138 of 1987 dated 22-12-1987, is hereby set aside.
24. Order accordingly.