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TMI Blog1966 (12) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... or sentence sought to be revised. A point has been raised that this period of 90 days will begin to run from the date of the order of the Sessions Judge refusing to make a reference to the High Court in his revisional jurisdiction. A Bench decision of this Court in Sahdev Mandal v. Honga Murmu. Cr. No. 1018 of 1965, D/-13-9-1966 : (AIR 1967 Pat. 223) has observed that the period of limitation could not be counted from the date of the order of the Sessions Judge refusing to make a reference to the High Court. That observation, however, is obiter, because in that case few point was not required to be decided. Another point that has been raised is that, according to the long standing practice of this Court, the petitioner had to go to the Sessions Judge for making a reference to the High Court and was not allowed to come direct to this Court. The unreported decision of this Court, referred to above, has laid down that it is not necessary to go to the Sessions Judge for making a reference to the High Court. That decision, however, was given on a question being raised as to whether a criminal revision application filed direct in this Court can be maintained. The question as to what woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days should be calculated with effect from the date of the Magistrate's order, but allowed the application with the following observations : After having found that the impugned order of the Magistrate was neither legal nor correct, it will be travesty of justice if I would decline to interfere in this case for the simple reason that the petitioner's application to this Court against the impugned order of the Magistrate was barred by time under the provisions of the new Limitation Act. The other course which could be followed is to set aside the order of the Additional Sessions Judge, dated the 30th April 1964 and direct him to refer the case to this Court, but that would only be a mere technical duplication which, in my view is not called for. I would prefer to act under Sections 435 and 439. Code of Criminal Procedure 3. In the unreported decision dated the 13th Sep. 1966. I agreed wife Mahapatra and held that the period of ninety days is to he counted from the date of the Magistrate's order and even though the practice of this court is not ordinarily, to entertain any application in revision, unless a party went in the first instance to the Court of Session, in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure Code, some period was fixed according to the practice of the High Courts--sixty days in some High Courts and ninety days in others. In the Patna High Court, the period so fixed was sixty days. For the purpose of a revision, Sections 436 to 489 of the Code are relevant. According to Section 485, the High Court or any Sessions Judge or District Magistrate may call for and examine the record of any proceeding before any inferior criminal court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or order of the inferior court. Under Section 486, the High Court or the Sessions Judge may, on examining any record under Section 435 or otherwise, direct the District Magistrate or any of his subordinate Magistrate to make further enquiry into any complaint which has been dismissed under Section 208 or Sub-section (3) of Section 204, or into the case of any person accused of an offence who has been discharged. Section 437 lays down that, on examining the record of any case under Section 435 or otherwise, the Sessions Judge or District Magistrate may order a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide for exclusion of the time taken in the bona fide prosecution of a criminal proceeding as well. We have to consider whether, under the law as it stands at present, the order sought to be revised by the High Court is the order of the Sessions Judge refusing to report to the High Court or the order of the trying Magistrate In other words, does the applicant want the order of the Magistrate or the order of the Sessions Judge to be set aside by the High Court that is, by which of the two orders is he adversely affected? Section 145(6) lays down that, if the Magistrate decides that one of the parties was, or should under the second proviso in Sub-section (4) be treated as being, in possession of the land in dispute, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and, when he proceeds under the second proviso to Sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed Section 146 deals with a case, where the Magistrate is unable to decide as to which of the parties was in possession on the relevant date: and in such a case he has to refer the matter to the appropriate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected and the High Court acts suo motu after starting another revision proceeding, by implication. If this interpretation of the exercise of the wide powers of the High Court be correct--and there should be no doubt about its correctness--can ii be argued in the alternative, that the order of the Magistrate and the order of the Sessions Judge are both sought to be raised by an applicant in the High Court? If the answer to this alternative argument be in the affirmative, the result will be that ninety days will be counted from the date of each of the two orders and, in a case where the application has been filed after the expiry of ninety days (plus the time taken in obtaining a copy) from the Magistrate's order, it is time-barred In respect of that order, though it may be in time in respect of the Sessions Judge's order. But such an anomalous situation could not have been contemplated by the Parliament. This anomaly can be overcome only if it be possible to hold that the Magistrate's order merges in the order of the Sessions Judge; but, in as much as the order of the Sessions Judge under Section 438 is not a final order, there cannot be such a merger. My concluded op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted decisions (e. g. Mt. Bechan Kuer v. Maharaja of Chota Nagpur AIR 1939 Pat. 320), which were referred to during the arguments; but it is not necessary to discuss them here, as they merely followed the bench decision. Neither Mr. Jaleshwar Prasad nor Mr. A.N. Sahai could point out any decision in which the period spent by a party before the Sessions Judge or the District Magistrate was excluded, while computing the period of limitation, as fixed by the practice of this court or any other High Court. They did not cite any decision either to show that in such a case the order of the Sessions Judge, and not that of the Magistrate, is to be revised by the High Court under Section 430. 7. It was then argued that Section 438 would become nugatory, if the order of the Magistrate under Section 145 be deemed to be the order sought to be revised and every party dissatisfied with the order of the Magistrate will come directly to the High Court, instead of going in the first instance to the Sessions Judge or the District Magistrate. There is, however, no question of Section 438 becoming nugatory on account of the view that the period of ninety days fixed by Article 131 of the new Limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord and in some cases even considering the evidence, when a subordinate court has already considered the matter and made his report. Further, the High Court would have the opinion of another Court before it which would be of help. In practice no great harm is likely to be suffered by the accused, if he is required to go to the District Magistrate or the Sessions Judge in the first instance. When a practice of this kind becomes well known to the members of the bar in the Mofussil and in the High Court the accused would be advised to approach the subordinate Court forthwith and not attempt to file a revision in the High Court direct. In many cases, if the District Magistrate or the Sessions Judge reports in favour of the accused, he need not be represented in the High Court, particularly when the illegality of the conviction or the severity of the sentence is patent. On the other hand, if such a salutary rule of practice were not to prevail, there would be a temptation, and even an encouragement, to accused persons to come up straight to the High Court over the head of the District Magistrate or the Sessions Judge concerned, because the latter can only report to the High Court and ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 131 of the new Limitation Act, according to which the prescribed period has to be counted from the date of the impugned order of the Magistrate. 9. A bench decision of the Calcutta High Court in Raj Chandra v. Emperor. AIR 1617 Cal 680 came to our notice during the arguments of the present case. After referring to the practice of the Calcutta High Court that the application in revision must be made within sixty days from the date of the order complained of, their Lordships posed the question whether in a case in which there had been an application to the Sessions Judge, the sixty days, were to be counted from the refusal of the Sessions Judge to refer the matter to the High Court or whether the time was to be ascertained by counting the days from the date of the order complained of. As there was no definite practice of the Calcutta High Court upon this particular point, their Lordships laid down a practice to the effect that the sixty days shall be counted from the date of the conviction or the order complained of but the time which is occupied in prosecuting with diligence the application before the Sessions Judge and obtaining his decision should be added to the sixty days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is done in accordance with the recognised rules of criminal jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code; and whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. It was held by a bench of this court in the case of Kelu Patra AIR 1929 Pat 404 that in exceptional circumstances an application in revision filed in this court may be considered even though it is filed after the expiry of the period of sixty days the period fixed by the practice of the court as the period of limitation. It was conceded that it is well settled by the decisions of all the High Courts that the powers of the High Court under Section 439 are very wide, and the High Court can at any stage, of its own motion, if it so desires and certainly when illegalities or irregularities resulting in injustice are brought to its, notice, call for the records and examine them and pass suitable orders There can be no doubt, therefore, that this court can under Section 439 set aside or modify an order of inferior criminal courts, even though in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice of this court that the party must go in the first instance to the Sessions Judge or the District Magistrate, as the case may be 12. In Criminal Revision 906 of 1965, the impugned order of the Magistrate was passed on the 22nd September, 1964, and the application in revision was filed by the petitioner before the Sessions Judge on the 29th September, 1964, i.e., within a week of the date of the impugned order, out of which five days were taken in obtaining a certified copy of the order of the Magistrate. The Additional Sessions Judge's order dismissing the application in revision was passed on the 24th June, 1986, and the application in revision in this court was filed on the 26th July, 1966, and the time taking in obtaining copy of the Additional Sessions Judge's order was four days The petitioner in this case was very prompt in going to the Sessions Judge, but there was a delay of about 12 days in his coming to the High Court, apparently, because he was misled by the practice of this court. It is, therefore, a fit case for condonation of delay under Section 5 of the Limitation Act, and the delay is accordingly condoned. 13. The first ground on which Mr. A.N. Sahai cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r who appeared for the opposite party conceded that the Magistrate seems to have missed this fact by oversight and therefore, we find that the opposite party's possession shall be over that portion of plot No. 1110 which is covered by the description given in paragraph 9 of the impugned order, with reference to the map and the report of the pleader commissioner and any portion of plots 1111 and 1113 covered by the same shall be excluded and the order declaring the possession of the opposite party over such portion of plots 1111 and 1113, by implication, shall be set aside. 15. Then, there is a nala in a portion of plot No. 1110 which, according to the finding of the Magistrate, was constructed by the petitioner. But the learned Magistrate has not declared possession of any party over this nala. Mr. Katriar conceded that the possession of the petitioner over it may be declared by this court and to that extent the Magistrate's order may be modified; the possession of the petitioner over this nala is accordingly declared. 16. Subject to the aforesaid modification in the impugned order of the Magistrate, the application is dismissed. 17. In Criminal revision No. 1343 of 1965, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate. Still this application in revision was filed on 21-10-1965. In his petition under Section 5 of the Limitation Act, it is said that, inasmuch as the application in revision was filed in this court well within ninety days of the date of the Sessions Judge's order, and, according to the practice and the law, as it stood at the time of filing the application, it was filed in time, particularly because the Stamp Reporter also reported that the application was in time. But it will be seen from the bench decision of this court in Kelu Patra's case. AIR 1929 Pat 404 that the period of limitation prescribed by the practice of this Court is sixty days--not ninety days--from the date of Magistrate's order. It appears, however, that since the commencement of the new Limitation Act, the Stamp Reporter thought that the period of limitation is ninety days from the last order of the court below; but there is no authority to support this view of the Stamp Reporter. The benefit of this practice started on the basis of the reports of the Stamp Reporter since 1964 must go to the petitioner; and this is a sufficient cause for condonation of the delay under Section 5 of the Limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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