Gauhati High Court
Md Kamar Uddin Laskar vs Md. Abu Bakkar Barbhuiya on 11 February, 2016
Author: Indira Shah
Bench: Indira Shah
1
IN THE GAUHATI HIGH COURT
(THE HIGH COUR T OF ASSAM , NAGALAND, M IZOR AM AND AR UNACHAL
PR ADESH )
Crl. Revn. (P) 429/ 2015
Md. Kamar Uddin Laskar,
S/o Lt. Firuj Ali Laskar,
Vill .- Sudarshanpur Part -I,
P.O. - Sudarshanpur,
P.S. -Lala,
District- Hailankandi, Assam
.... petitioner
-Versus-
Md. Abu Bakkar Barbhuiya,
S/o Lt. Idrish Ali Barbhuiya,
Vill .- Sudarshanpur Part -I,
P.O. - Sudarshanpur,
P.S. -Lala,
District- Hailankandi, Assam
..... Respondents
BEFORE
HON'BLE DR. (MRS.) JUSTICE INDIRA SHAH
For the petitioner : Mr. A.M. Barbhuiya, Adv. , Mr. Z. Hammad &
Ms. F.Begum
For the respondent :
Date of hearing : 11.02.2016
Date of Judgment : 11.02.2016
2
JUDGMENT AND ORDER (ORAL)
This revision application under Sections 397/401 of Code of Civil Procedure, read with Art. 227 of the Constitution of India has been filed against the order dated 19.09.2015 passed by learned Additional District Magistrate, Hailakandi in Case No. 203/2015 whereby the learned Additional District Magistrate directed the police to execute an order dated 21.12.2013 passed by the Sub-Divisional Magistrate, Hailakandi in Case No. 251/2013.
2. The respondent on 04.09.2013 filed a petition under Section 145/146 (A) Cr.P.C. before the District Magistrate, Hailakandi alleging that the petitioner is trying to construct a building in the disputed land and there is apprehension of breach of peace and tranquility. The learned Sub- Divisional Magistrate vide order dated 21.12.2013 passed the order of attachment without initiating any proceeding u/s 145 Cr.P.C. But the said order could not be executed. On 19.09.2015 the learned Magistrate passed the impugned order behind the back of the petitioner.
3. It is contended by the petitioner that he is in possession of the land having his dwelling house thereon.
4. Aggrieved by the said order, the petitioner preferred revision in the court of Sessions Judge but he withdrew the petition to file the instant petition before this High Court.
5. Heard Mr. A.M. Barbhuiya, learned counsel for the petitioner and also heard learned counsel for the sole respondent.
6. Learned counsel appearing on behalf of the respondent at the threshold has challenged the maintainability of the petition. It is submitted that Section 397 Cr.P.C. invests the High Court and the Sessions Judge with concurrent revisional jurisdiction. Section 397 (2) bars the exercise of revisional power in relation to any interlocutory order and Section 397 (3) provides that if an application under the Section has been made by any person either to High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other. He has cited the case of Jagir Singh Vs. R anbir Singh and Another reported in (1979) 1 SCC 560 ; Shakuntala Devi & Cham ru M ahato & Another reported in (2009) 3 SCC 310 in support of his contention.
37. Per contra, learned counsel for the petitioner, submits that the revision filed before the court of Sessions was not pressed and it was dismissed as not pressed. Since it was not decided on merit this Court can entertain this petition having inherent power. He has relied on the case of K rishnan & Another -Vs- K rishaveni & Another reported in (1997) 4 SCC 241 ; Darog Ali & Others - Vs- M usstt. N etgjan Ness and Another reported in (2003) 1 GLR 651, Gopal Saha -Vs- Uttam Saha reported in 2013 (4) GLT 990.
8. In the case of Jagir Singh (Supra) a revision application was preferred against the order of Magistrate under Section 125 Cr.P.C. The Sessions Judge disposed of the application on merit. Then another revision petition to High Court was filed and the High Court allowed the petition. It was held by the Supreme Court as under :-
"4. The first question for consideration is whether the High Court was precluded from interfering with the order of the Magistrate in the exercise of its revisional jurisdiction by reason of the provisions of Section 397(3) of the Criminal Procdure Code 1974. Section 397 which corresponds to Section 435 of the Criminal Procedure Code 1898 invests the High Court and the Sessions Judge with concurrent revisional jurisdiction over inferior criminal Courts within their jurisdiction. The District Magistrate who also had revisional jurisdiction under Section 435 of the CrPC 1898 is now divested of such jurisdiction. In addition, there are, in the 1974 Code two important changes both of which are apparently designed to avoid delay and to secure prompt rather than perfect justice. The first change is that introduced by Section 397(2) which bars the exercise of revisional power in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. The second is that introduced by Section 397(3) which provides that if an application under the Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. We are concerned with this provision in this appeal. The object of Section 397(3) is clear. It is to prevent a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Session Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of the other authority. The language of Section 397(3) is clear and peremptory and it does not admit of any other interpretation. We may also mention here that even under Section 435 of the 4 previous CrPC, while the Sessions Judge and the District Magistrate had concurrent jurisdiction, like present Section 397(3) previous Section 435(4)provides that if an application under the Section had been made either to the Sessions Judge or District Magistrate no further application shall be entertained by the other of them.
5. In order to cross the hurdle imposed by Section 397(3) it was suggested that the revision application before the High Court could be treated as an application directed against the order of the Sessions Judge instead of an one directed against the order of the Magistrate. We do not think that it is permissible to do so. What may not be done directly cannot be allowed to be done indirectly, that would be an evasion of the statute. It is a "well-known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance" (per Abbott C.J. in Fox v. Bishop of Chester (1824) 2 B & C 635 "To carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined" (Maxwell, 11th edition, page 109).
When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge. The bar ofSection 397(3) was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Session Judge's order."
9. In the case of Shakuntala Devi & Others (Supra) it was observed :-
"24. 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 application underSection 482 thereof does not, therefore, commend itself to us."
10. In the case of Dharam pal & Ors. (1993) 1 SCC 435, it was observed as under :-
"6. There is no doubt that the learned Magistrate had committed an error in passing the subsequent orders of attachment when the first attachment was never finally vacated and had revived the moment 5 the revision application filed against it was dismissed by the learned Sessions Judge. It appears that none of the parties including the Sessions Judge realised this error on the part of the Magistrate. The learned Sessions Judge had also committed a patent mistake in entertaining revision application against the fresh orders of attachment and granting interim stays when he had dismissed revision application against the order of attachment earlier. Let that be as it is. The question that falls for our consideration now is whether the High Court could have utilised the powers under Section 482 of the Code and entertained a second revision application at the instance of the 1st respondent. Admittedly the 1st respondent had preferred a Criminal Application being Cr. R.No. 180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May, 1979. Section 397 (3) bars a second revision application by the same party. It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside."
11. The aforementioned judgments were passed by Division Bench of Hon'ble Supreme Court. The constitutional Bench in case of Krishnan & Another (Supra) held as under :-
"10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person accused/complainant - cannot be allowed to take recourse to the revision to the High Court underSection 397 (1) or under inherent power of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397 (3) or section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstance, to exercise the inherent power and in an appropriate case even revisional power and in appropriate case even revisional power under Section 397 (1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity or procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be 6 curbed and public justices can be ensured only when expeditious trial is conducted expeditiously."
12. In Shakuntala Devi (Supra) case also, the Apex Court observed that the doors to the High Court to a litigant who had lost before the Sessions Judge were not completely closed and in special cases the bar under Section 397 (3) could be lifted.
13. This Court in the case of Gopal Saha (Supra) reiterating the case of Krishnan and Another (Supra) held that this Court is not denuded of the power to entertain even a second revision petition under Section 482 Cr.P.C. in appropriate/special cases.
14. In the case of M unicipal Corporation of Delhi v. Girdharilal Sapru reported in AIR 1931 SC 1169, the revision filed to the High Court against the discharge of the accused in Prevention of Food Adulteration case it was observed that Section 397 Cr.P.C. enables the High Court to exercise power of revision suo moto and when the attention of the High Court was drawn to a clear illegality the High Court could not have rejected the petition as time barred thereby perpetuating the illegality and miscarriage of justice.
15. Sub clause 3 to Section 399 Cr.P.C. says -----
"Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court."
16. Section 401 Cr.P.C. empowers the High Court to suo moto call for proceeding of the subordinate court which reads as under :-
"High Court' s Powers of revisions.
(1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, 7 the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code tan appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."
17. It is true that a second revision does not lie before the High Court when one is dismissed by the Court of Session. Here in this case the petitioner has not challenged the order of Sessions Judge and Sessions Judge dismissed the petition on being not pressed. No decision on merit of the case was passed. Sub clause (3) to Section 399 Cr.P.C. speaks that on any application for revision being made, the decision of Sessions Judge thereon shall be final.
18. It appears from the impugned order that the attachment order in respect of disputed land was passed on 21.12.2013. The said order could not be executed since the petitioner had already constructed a katcha house over the land. Thereafter, case record went missing. On the initiative of respondent the following order was passed :-
"19.09.2015 CR received on transfer. Perused the complaint petition as well as the case records in details. It appears that the ld. SDM had attached the D/L vide his order dated 12-03-2014, which was challenged by OP filing a revision suit No. 32/14 in the court of Ld. District and Session Court. The Hon'ble District and Session Judge after his pragmative observations dismissed the revision petition on contest and upheld the attachment order passed by the Ld. SDM.
8The C.R. was sent back of the original Court perhaps the C.R. had been endorsed to the Ld. Court of Shri S. Haque E.M. who called a Police report.
The police submitted a report showing trace map etc. that the D/L cannot be attached since the OP had already constructed a katcha house over the D/L. The Ld Executive Magistrate on receipt of the Police report did not proceed further as regards to the execution of the order of the attachment and in the meantime the petitioner prepared for withdrawal of the proceeding from the Ld. TM and being satisfied the Ld. ADM transferred the C.R. to this Court. Accordingly an order was passed on 17/02/2015 after hearing fixing another date for necessary orders. While this was the stage of the proceeding, it is alleged that the C.R. was taken back by Shri P.B. Roy, Ld. Addl. D.M. and was kept there for some days without any orders. Being highly aggrieved, the petitioners moved to the Ld. Dist. Magistrate who ordered Shir NK S.K. Singha, Ld. ADM to try the proceeding. The Ld ADM, NK S.K. Singha did not take steps rather after lapse of some days informed that the C.R. was missing. The petitioners again moved to the Ld. Dist. Magistrate and informed him about the missing of the C.R. The Ld. Dist. Magistrate ordered Smti. R.L. Changsan, EAC to enquire into the matter, but she could not trace out the case records. The petitioner again moved to the Ld. District Magistrate prayer for execution of the attachment order as the OP were attempting for cultivation on the D/L which may have been distributed peace and tranquility in the locality. The Ld. District Magistrate after careful hearing has ordered this Court to take steps revolved round the whole issues.
A careful study of the case records, it appears that, at present, the main grievance in the petition is that the attachment order passed on 12-03-2014 by the Ld. SDM was not implemented and the implementing agencies have failed to utilize its services in the proper manner. The Ld. Executive Magistrate on receipt of a Police report that a structure has been constructed by the Ops did not take suitable follow up steps to dispose the issue of the petitioner.
It is prima facie established that had been no house before passing of the ordered attachment. It was constructed after the promulgation order of the attachment by the Learned Magistrate with ulterior motive to show that the 2nd party had been on the possession of the D/L. Naturally such possession by the 2nd party is void in the eyes of land.
The implementing agencies of execution of the order could take steps to clear the malafide possession taken by the 2nd party members. However that the 2nd party has constructed a katcha house and the order of attachment is not executed cannot be accepted as a reasonable ground of remaining abstained from executing the order of attachment. To examine the documents of evidences and to arrive at a concrete decision as to which party 9 has been in the possession it is therefore necessary to keep both the parties away from using or entrance in the D/L. O/C, Hailakandi is, therefore, directed to execute the order of attachment dated 21-12-2013 passed by learned Sub- Divisional Magistrate and if necessary he may take steps to remove the structure and legal action for violation of the Court orders may be initiated. A copy of order is also attached herewith for needful action.
Inform O/C, Hailakandi, Circle Officer, Hailakandi & Executive Magistrate, Hailakandi to act accordingly."
19. Apparently the aforesaid order has been passed after lapse of nearly two years. Neither any notice to the petitioner was issued nor any opportunity of hearing was given.
20. The learned Addl. District Magistrate did not deem it fit to call for any police report before passing of the impugned order.
21. Admittedly there is a kutcha house of the petitioner over the disputed land and vide impugned order the learned Magistrate has directed to remove the structure. Whether the said house was constructed after the order dated 21.12.2013 was passed, is yet to be determined.
22. Moreover, order under Section 146 Cr.P.C. can be passed only when any proceeding u/s 145 Cr.P.C. has been initiated and that too in case of emergency. The order passed by the court below does not show any such emergency.
23. In view of above discussions the impugned order passed u/s 146 Cr.P.C. is hereby set aside. The lower court shall, however, be at liberty to initiate a proceeding u/s 145 Cr.P.C. and to proceed with the case, if there is any such ground, in accordance with law.
JUDGE arup