Rajasthan High Court - Jaipur
Smt. Ganga And Ors. vs State Of Rajasthan And Anr. on 1 April, 1992
Equivalent citations: 1993CRILJ216, 1992(3)WLC16, 1992(1)WLN555
ORDER Rajendra Saxena, J.
1. This revision petition filed under Section 397/401 Cr.P.C. has been directed against the judgment dated 16-9-89 passed by the learned Additional Sessions Judge No. 2, Jodhpur, whereby he ordered for the abatement of the appeal filed by Champa Lal due to his death; directed that the fine imposed on Champa Lal by the learned Judicial Magistrate No. 4, Jodhpur be recovered from the properties left by him and confirmed the order of the learned trial Magistrate passed under Section 456 Cr.P.C. for the restoration of possession of the disputed premises.
2. Succinctly stated the martix of the case leading to this revision petition is that in execution of an ex parte decree dated 5-10-74 for ejectment passed by the learned Additional Civil Judge, Judhpur against tenants Ram Pratap and Kashi Ram, landlord non-petitioner No. 2, Rajendra Kumar, was given the physical possession of the rooms and a stair case on 14-1-1975 by the Sales amin. Rajendra Kumar put bags of 'GUR' therein and locked the stair case. It is alleged that on 17-1-1975 when Rajendra Kumar went inside the said premises to carry out certain repairs, Champa Lal along with co-accused Virendra Singh, Kamlesh had Parasram illegally and forcibly dispossessed him, therefrom. Champa Lal also threw a stone towards Rajendra Kumar and tried to belabour him. Thereupon, on the report of Rajendra Kumar, Crime No. 26 was registered at Police Station Udai Mandir against Champa Lal and others. After investigation, a charge-sheet was filed before the Magistrate. The learned Magistrate after trial, by his judgment dated 20-9-1964 convicted Champa Lal, Kamlesh, Virendra Singh and Parasram for the offences under Sections 453 and 427 IPC and sentenced each of them for one year's rigorous imprisonment and a fine of Rs. 100/ -under each count and in default, to further undergo simple imprisonment for three months. He, however, gave benefit of probation to co-accused Parasram keeping in view his old age. The learned Magistrate also passed an order under Section 456 Cr.P.C. directing that the possession of the disputed premises be restored to Rajendra Kumar within one month. Aggrieved by the said judgment, Champa Lal filed appeal No. 55/85. Co-accused persons also separately filed appeals against the said judgment. During the pendency of appeal, Champa Lal expired on 20-6-88. The learned Additional Sessions Judge, Jodhpur, after hearing the parties, by his judgment dated 16-9-89 held the the appeal against the conviction had abated under Section 394 Cr.P.C.; and ordered that the fine imposed against Champa Lal be realised from the property left by him. He also decided the appeal against the order passed under Section 456 Cr.P.C. on merits and upheld the order of the learned trial Magistrate. Hence, the legal representatives of late Champa Lal have filed this revision petition.
3. I have heard learned counsel for the parties and the learned Public Prosecutor for the State at length and carefully perused the record of the lower Courts.
4. Shri P. N. Mohanani has vigorously contended that since the appeals filed by co-accused Virendra Singh, Kamlesh and Parasram are still pending, the impugned judgment of the learned trial Magistrate was sub judice and as such no final order under Section 456 Cr.P.C. could be passed in the appeal filed by Champa Lal, even though he had expired. According to him, the order under Section 456 Cr.P.C. was only binding on Champa Lal and not on his legal representatives or any other person claiming under him. He has submitted that after the death of Champa Lal the order under Section 456 Cr.P.C. did not survive and as such the impugned judgment regarding the delivery of possession of the disputed premises was perverse, which has resulted in gross miscarriage of justice. He has argued that the abatement of Champa Lal's appeal does not tantamount to his conviction and as such recovery of fine from his legal representatives is also illegal.
5. On the other hand, Shri M. L. Garg, learned counsel for the non-petitioner No. 2, Rejendra Kumar as well as the learned Public Prosecutor have asserted that the moment of time Champa Lal expired, appeal filed by him against his conviction, automatically abated under Section 394 Cr.P.C. and conviction against him passed by learned trial Magistrate survived. They have maintained that the) learned Sessions Judge has decided the appeal I regarding the order passed under Section 456 Cr.P.C. on merits after hearing the parties and that it was not at all necessary for him to have waited till the disposal of the separate appeals filed by co-accused pesons against their convictions. They have submitted that the order passed under Section 456 Cr.P.C. was not only binding on Champa Lal but also on his legal representatives as well as on any other person, who may be in possession of the premises in question. They have pointed out that since the recovery of fine has been ordered to be made from the property left by late Champa Lal and not from his legal representatives, there was nothing illegal.
6. I have thoughtfully considered the rival submissions. Under Section 394 Cr.P.C., an appeal filed against the conviction finally abates on the death of the accused. Admittedly, the legal representatives of Champa Lal did not apply to the appellate Court for leave to continue the appeal. On the other hand. Shri P. N. Mohanani, learned counsel for the petitioners had specifically alleged before the learned Sessions Judge that the appeal filed by Champa Lal had abated due to latter's death. He even did not contest about legality of fine imposed on Champa Lal. He had, however, challenged the order passed by the learned trial Magistrate under Section 456 Cr.P.C. and argued the appeal on merits.
7. In this case, non-petitioner Rajendra Kumar filed a suit for ejectment against Ram Pratap and Kashi Ram, who were real brothers of Champa Lal in respect of a house including the disputed premises, which was rented out to them. The said suit was decreed on 3-10-74 and in execution of the said decree, the Sales Amin gave delivery of the possession of two rooms and one stair case to Rajendra Kumar. This is also an admitted position that Champa Lal's suit filed against Rajendra Kumar regarding the disputed premises was dismissed by the Civil Court. His appeal was also dismissed by the learned Additional District and Sessions Judge, Jodhpur and it was held that he was not the tenant of Rajendra Kumar and the ex parte decree dated 3-10-74 was also affirmed. It is also not in dispute that co-accused Virendra, Kamlesh and Parasram were neither the tenants not had ever been in possession of the disputed premises. The learned Sessions Judge has not decided the appeal of Champa Lal on merits in respect of his conviction and sentence passed by the learned trial Magistrate. On the other hand he has simply held that due to the death of Champa Lal, the appeal filed by him under Section 374 Cr. P. C. had ipso facto abated due to his death. In such circumstances, it was not at all necessary for the learned Sessions Judge to have waited till the final disposal of the separate appeals filed by co-accused persons against their conviction and sentence,
8. The only logical conclusion of the abatement of an appeal under Section 394 Cr. P. C. is that the proceedings against the accused-appellant comes to an end and the conviction and sentence passed by lower Court against the deceased-accused remain intact.
9. A bare perusal of the impugned judgment passed by the learned Sessions Judge reveals that he has simply ordered that the fine imposed on Champa Lal be realised from the properties left by him nad not from the legal representatives. Therefore, the contention of Shri Mohanani on this count is also devoid of any force and substance.
10. I also do not find any force in the contention of learned counsel for the petitioner that the learned Sessions Judge could not have decided the appeal filed by Champa Lal in piece-meal and that no final order in respect of the appeal against the order filed under Section 456 Cr.P.C. could have been passed on merits.
11. Section 456(1) Cr. P.C. lays down that when a person is convicted of an offence attended by criminal force or show offeree or of 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 immoveable property, the court may, if it thinks fit, order that possession of the same be restored to that person after effecting by force, and if encessary any other person, who may be in possession of The property. Thus, it is cyrstal clear that if a person has been wrong-fully dispossessed by use of force and once that condition has been fulfilled, the possession must be restored under Section 456, Cr. P.C. from whosoever found in possession. The policy of the legislature manifestly seems to be that nobody should be allowed to thrive on his criminal and wrongful acts. If that were not so, it would virtually defect the legislative pocliy and there can be no vindication of justice, if such persons are not dispossessed while ordering the restoration.
12. In Prem Chand Sharma v. State, 1985 Cr. L. J. 374, it has been held that expression used in Section 456(1) Cr. P.C. connotes that the possession is to be restored even if person other than one convicted is in possession of such property.
13. Therefore, not an iota of doubt lurks in my mind to hold that an order under Section 456, Cr. P.C. does not only bind the accused but also binds any other person including the legal representative of the accused, who may be in possession of such property.
14. As mentioned earlier, the learned Sessions Judge has decided the appeal against the order under Section 456, Cr. P.C. passed by the trial Magistrate on merits and dispelled all the grouns taken in the memo of appeal filed by Champa Lal thread bare. Section 456(4) Cr. P.C. clearly provides that no order made under Section 456, Cr. P.C. shall prejudice any right or interest to or any such immoveable property, which any person may be able to establish in a civil suit. Thus, the order passed under Section 456, Cr. P.C. is not final.
15. In the instant case, the civil suit filed by Champa Lal claiming himself as a tenant in respect of the disputed premises, failed in the civil court, his appeal was also dismissed by the learned Additional District Judge and the ex parte decree daetd 3-10-74 was held to be legal. Hence, the learned Sessions Judge, after considering all these relevant factors, has rightly upheld the order of the trial Magistrate passed under Section 456, Cr. P.C.
16. An order passed under Section 456(1) Cr. P.C. is appealable under Section 456, Cr. P.C. It is true that the provisions of abatement of appeals enshrined in Section 394, Cr. P.C. do not apply on such appeals relating to the disposal of property incorporated in Chapter XXXIV of the Code of Criminal Procedure. Section 456, Cr. P.C. corresponds to Section 520 of the Code of Criminal Procedure, 1898. In Ganga Bai v. State of Rajasthan 1977 Raj Cr. Cases 40 : (1977 Cri LJ (NOC) 167), it has been held that there is no specific provision for substitution of legal representatives of accused in an appeal under Section 520, Cr. P.C., but the court by way of caution, may order his legal representatives to be brought on record and that it can also dispose of such appeal in accordance with law even without impleading them as parties. It has further been held that since, a special jurisdiction is given to the courts of appeal to modify, alter or annul orders passed by subordinate courts under Sections 517, 518 and 519 of old Cr. P.C., it may make any further order as it deems fit.
17. Hence, for hearing and deciding the appeal under Section 456(3), Cr. P.C. it was not at all necessary for the learned Sessions Judge to have" impleaded the legal representatives of late Champa Lal. Thus, refracted from any angle, the impugned judgment is perfectly legal, correct and appropriate and the same warrants no interference.
18. The upshot of the above discussion is that this revision petition is meritless and the same is hereby dismissed.