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Sharfuddin v. Sirajuddin And Another Opposite Party.

Orissa High Court

Nov 18, 1960

Judgment

Subsequent
References

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Concise Analytical Summary of the Opinion

Factual and Procedural Background

This is a reference made by the Sessions Judge of Sambalpur seeking that an order dated 18-2-60 passed by a First Class Magistrate of Uditnagar be set aside. The Magistrate's 18-2-60 order directed delivery of possession of certain disputed lands to the second party (the opposite party in the reference).

The disputed lands were the subject of a regular proceeding under Section 145 of the Code of Criminal Procedure (Cr PC), before the Magistrate in Miscellaneous Case No. 602.T-435 of 1959. The lands had been attached during the pendency of that Section 145 proceeding.

On 18-1-60 the learned Magistrate dropped the Section 145 proceeding, observing that he was not inclined to believe there would be any fresh breach of the peace and that the parties could seek determination of their rights in the Civil Court. In that order he found that neither party was in actual possession because tenants were cultivating the lands, and that no party was threatening to dispossess the tenants.

The Magistrate did not make any ancillary order disposing of the attached lands on 18-1-60. After waiting for the period of revision, however, he passed an order on 18-2-60 directing that the lands be handed over to the second party on the ground that the lands had evidently been attached from that party and should be restored to them. The first party challenged the 18-2-60 order before the Sessions Judge, which resulted in the present reference.

Legal Issues Presented

Whether the Magistrate's subsequent order dated 18-2-60 directing delivery of possession of the disputed lands to the second party can be supported in view of his earlier order dated 18-1-60 dropping the Section 145 proceeding on the ground that there was no apprehension of breach of peace and finding that neither party was in actual possession.
Whether the Magistrate's order of 18-2-60 was, in substance, an order under Section 517(1) of the Cr PC and therefore appealable under Section 520 of the Cr PC — and if so, whether that appealability would oust the revisional jurisdiction of the High Court by virtue of sub-section (5) of Section 439 of the Cr PC (i.e., maintainability of the reference to the Sessions Judge / High Court).

Arguments of the Parties

Appellant (First Party) — as represented by procedural record / petition)

The first party's petition dated 30-10-59 alleged that the second party were not allowing the first party to go upon the lands since 24-10-59. This factual statement appeared in the first party's pleadings and was relied upon by the Magistrate in his later ancillary order of 18-2-60.

Opposite Party (represented by Mr. Das) — preliminary maintainability objection

Mr. Das contended that the Magistrate's order of 18-2-60 was, in substance, an order passed under Section 517(1) of the Cr PC and therefore fell within the scope of Section 520 of the Cr PC, which (he urged) makes such orders appealable to the Sessions Judge.
He argued that where such an appeal-right exists the revisional jurisdiction of the High Court is expressly barred by sub-section (5) of Section 439 of the Cr PC, rendering the reference incompetent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Baidyanath v. Kunja Behari, 22 Cut LT 435	Authority for the proposition that a Magistrate who drops a Section 145 proceeding may pass ancillary orders for disposal of attached property when there is no apprehension of breach of peace.	Accepted as part of earlier decisions establishing that ancillary orders are permissible when proceeding is dropped, but noted that this power should not be used to evade deciding the dispute.
Dasa Mohanty v. Gadadhar Samal, 23 Cut LT 37 : AIR 1957 Orissa 92	Same general principle as above regarding ancillary orders on dropping Section 145 proceedings.	Relied on as supporting authority for the Magistrate's power in the narrow circumstances where no apprehension exists; court cautioned against misuse.
Mathrui Mallik v. Satrughna Giri, 25 Cut LT 340 : AIR 1959 Orissa 81	Same family of decisions about ancillary orders when a Section 145 proceeding is dropped.	Used to frame the permissible scope of dropping proceedings and passing ancillary orders; court emphasized limits on this practice.
Ghulam Ali v. Emperor, AIR 1945 Lah 47	Cited as representing the view that Section 520 does not confer an independent right of appeal against an order under Section 517.	Referred to among authorities that support the narrow construction of Section 520; relied upon in the analysis of maintainability.
Ibrahim Rahmatullah v. Emperor, AIR 1947 Nag 33	Also cited as an authority taking the narrow view of Section 520's scope.	Used to show that some High Courts have held Section 520 to be limited (not conferring independent appeal-right); part of the line of authority the court considered.
Talewar Jha v. Mool Chand, AIR 1959 All 96	Single Judge decision of the Allahabad High Court which examined the entire case law on Section 520 and advocated the narrow construction adopted by this Court.	The court treated this decision as persuasive and explicitly agreed with its reasoning in holding that Section 520 should be construed narrowly and does not create an independent right of appeal in the circumstances at hand.
Empress v. Jogessur Mochi, ILR 3 Cal 379	Represents the line of decisions treating Section 520 as conferring an independent right of appeal or revision against orders under Section 517.	Cited as part of the majority view in various High Courts; contrasted with the narrow view which the court preferred.
Queen Empress v. Ahmed, ILR 9 Mad 448	Another authority relied upon for the broader construction of Section 520.	Noted by the court as belonging to the group of cases adopting the broader view, but ultimately distinguished in the court's reasoning favoring the narrow construction.
U Po Hla v. Ko Po Shein, AIR 1929 Rang 97 (FB)	Federal Bench authority cited for the proposition that Section 520 confers an independent appellate or revisional right.	Listed among the decisions adopting the broader view; the court reviewed these authorities but declined to follow them on statutory-construction grounds.
Walchand v. Hari Anant, AIR 1932 Bom 534 (FB)	Federal Bench decision following the broader interpretation of Section 520.	Cited as part of the majority jurisprudence favoring an independent right of appeal; the court discussed this line but preferred the alternate view.
Asst. Collector of Customs, Central Excise, Kandamangalam v. Krishna Pillai, AIR 1950 Mad 42	Another decision in the group supporting a broad construction of Section 520.	Referenced among the authorities for the broader interpretation; the court considered but did not adopt this approach.
Harihar Singh v. Nilkantha Singh, AIR 1957 Pat 685	Cited as part of the authorities holding that Section 520 confers an independent appeal/revision right.	Noted by the court as part of the corpus of conflicting authorities; the court ultimately sided with the narrow construction.

Court's Reasoning and Analysis

The court proceeded in two linked strands of analysis: (A) the propriety of the Magistrate's 18-2-60 ancillary order directing possession to the second party after he had earlier dropped the Section 145 proceeding on 18-1-60; and (B) the maintainability of the Sessions Judge's reference in view of the contention that the Magistrate's order was appealable under Section 520 of the Cr PC.

A. Analysis of the Magistrate's ancillary order (18-2-60)

The court first reviewed the Magistrate's factual findings in his 18-1-60 order: the Magistrate had found that neither party was in actual possession because tenants were cultivating the lands, and neither party threatened to dispossess the tenants — and on that basis he dropped the Section 145 proceeding under sub-section (5) of Section 145.
The court noted that, although a Magistrate may drop a Section 145 proceeding and, where appropriate, pass ancillary orders for disposal of attached property (as in cited authorities), this power should not be used as a device to evade his responsibility to decide the dispute or to summarily dispose of a long-pending case.
The court observed an inconsistency: in the subsequent order of 18-2-60 the Magistrate stated that the lands had evidently been attached from the second party and therefore should be restored to them. The court found no material before the Magistrate to justify that later assertion; it contrasted that statement with the earlier finding that tenants were in actual possession throughout and that neither party had been disturbed.
The court reasoned that if the Magistrate had considered the first party's petition allegation (that second party did not allow first party on the lands since 24-10-59) to warrant an inference of second-party possession, he ought to have made that finding in the main order of 18-1-60 and proceeded accordingly. Having found in 18-1-60 that neither party was in possession, he should not have later relied upon that petitionary statement to effect an ancillary restoration of possession in favour of the second party without proper enquiry.
The court concluded that the 18-2-60 order effectively put the second party in possession without a proper inquiry or proper finding of their possession in the Section 145 proceeding, thereby amounting to an evasion of the statutory scheme of Section 145.

B. Maintainability — analysis of Section 520 and related provisions

The court addressed Mr. Das's argument that the Magistrate's order of 18-2-60 was, in substance, under Section 517(1) and therefore appealable under Section 520, and that such appealability would bar revision under sub-section (5) of Section 439.
The court recognized a clear conflict of judicial opinion about whether Section 520 confers an independent right of appeal against orders under Section 517 (or 518, 519). It quoted the text of Section 520 and noted that, in express terms, the section does not purport to confer an independent right of appeal.
The opinion examined both strands of authority: (i) decisions holding the section to be narrow (not conferring independent appeal-right), including Ghulam Ali, Ibrahim Rahmatullah and the Allahabad single-judge decision in Talewar Jha v. Mool Chand (AIR 1959 All 96); and (ii) decisions taking the broader view that Section 520 confers an independent right of appeal/revision (a majority view in several High Courts), including Empress v. Jogessur Mochi, Queen Empress v. Ahmed, U Po Hla, Walchand, Asst. Collector v. Krishna Pillai, Harihar Singh v. Nilkantha Singh, etc.
On statutory-construction grounds the court found the narrow construction more persuasive: when the framers of the Code intended to create specific appeal rights they did so in clear language elsewhere in the same chapter (examples given: sub-section (2) of Section 529; Section 476-B). The court considered the ambiguity of the phrase "any court of appeal, confirmation, reference or revision" in Section 520 and observed that if an independent right of appeal had been intended the legislature would have used clearer language.
The court also examined and rejected arguments that the phrase should be read as meaning "a court to which an appeal would ordinarily lie," concluding that such readings produce anomalies (for example, the reference to courts of confirmation becomes cryptic).
The court respectfully adopted the reasoning of the Allahabad decision (AIR 1959 All 96) and concluded that Section 520 should be construed in the narrower sense — i.e., it does not, by itself and in all circumstances, confer an independent right of appeal that would oust revisional jurisdiction.
Applying that conclusion to the facts, the court found there was no right of appeal against the Magistrate's order of 18-2-60 and therefore the Sessions Judge's reference was competent.

Holding and Implications

Holding: The reference is accepted and the order of the Magistrate dated 18-2-60 is set aside.

Implications and immediate consequences:

The 18-2-60 ancillary order that directed delivery of possession to the second party has been quashed; the court treated the reference as competent and allowed it.
The court left intact the factual finding recorded in the Magistrate's earlier 18-1-60 order that the lands were in the possession of tenants who had not been disturbed by either party; accordingly, that possession may continue until either party elects to approach the Civil Court to establish rights and seek interim relief.
On the point of law, the court adopted the narrow construction of Section 520 of the Cr PC (following the reasoning of the Allahabad decision discussed in the opinion): Section 520 does not, in the circumstances addressed, create an independent right of appeal that would automatically oust revisional jurisdiction under Section 439(5). The court expressly applied that construction to find the Sessions Judge's reference competent.
The court's action primarily affects the parties to this proceeding (setting aside the specific ancillary order and preserving the status quo on the ground), and the decision includes a considered statement of statutory interpretation on Section 520. The opinion itself confines its relief to the facts and the reference before the court; it does not purport to create any broad novel rule beyond the interpretative conclusion reached.

DE/K.B

Disposition recorded in the text: "Reference accepted."

Show all summary ...

1. This is a reference by the Sessions Judge of Sambalpur recommending the setting aside of an order dated 18-2-60 passed by a First Class Magistrate of Uditnagar directing delivery of possession of certain lands to the second party (opposite party in this proceeding).

2. The disputed lands were the subject matter of a regular proceeding under Section 145 of the Cr PC before the said Magistrate, in Miscellaneous Case No. 602.T-435 of 1959. The lands were attached during the pendency of the proceeding. The learned Magistrate eventually dropped the proceeding under Section 145 of the Cr PC on 18-1-60 observing that he was not inclined to believe that there would be any fresh breach of peace between the parties and that they might get their dispute decided by the Civil Court.

3. On the question of possession he held that neither party was in actual possession as the disputed lands were cultivated by tenants. He also observed that neither party threatened to dispossess the tenants. Though the Magistrate thus dropped the proceeding on 18-1-60 he did not pass any ancillary order on that date as regards the disposal of the attached lands. After waiting for the period of revision, the learned Magistrate on 18-2-60 passed an order directing that the lands be handed over to the second party, observing that the lands were eventually attached from that party and consequently they should be restored to them. Against this order, the 1st party moved the Sessions Judge who has made this reference for setting aside that order.

4. It has been decided by this Court in some decisions that if, after the commencement of a new proceeding under Section 145 of the Cr PC the Magistrate is satisfied that there is no apprehension of a breach of peace he may be entitled to drop the proceeding and pass such ancillary orders as may be necessary for the disposal of the attached property: see Baidyanath v. Kunja Behari, 22 Cut LT 435, Dasa Mohanty v. Gadadhar Samal, 23 Cut LT 37 : (AIR 1957 Orissa 92) and Mathrui Mallik v. Satrughna Giri, 25 Cut LT 340 : (AIR 1959 Orissa 81).

5. But as pointed out in the last decision the Magistrate should not resort to the device of dropping the proceeding merely with a view to evade his responsibility to decide the dispute and pass final orders in favour of either party or if circumstances so justify it, make a reference to the Civil. Court as provided in Section 146 of the Cr PC. By merely dropping the proceeding, the evil day is only postponed because there may again be apprehension of breach of peace and the Magistrate may again have, to start a fresh proceeding under Section 145 of the Cr PC and go through the entire process, causing not only inconvenience to himself but also harassment to the parties concerned.

6. Doubtless, if he is fully convinced that the parties are not likely to commit breach of peace in respect of the disputed property, his jurisdiction to continue the proceeding under Section 145 of the Cr PC terminates and the proceeding must be dropped or cancelled as permitted by sub-see. (5) of Section 145 of the Cr PC. But this step should not be used as a device to enable the Magistrate to summarily dispose of a long pending case.

7. On the finding of the Magistrate as contained in his order dated 18-1-60 his sub-sequent order dated 18-2-60 directing possession of the disputed property to the second party cannot be supported. He observed that neither party was able to prove his possession which in the circumstances was the possession of the landlord — and that the lands were in the actual possession of the tenants who were not being disturbed by either party and that there was therefore no apprehension of breach of peace.

8. In his subsequent order dated 18-2-60 he observed that the lands were evidently attached from the second party. There was absolutely no material before him to justify such an observation. According to his earlier order the lands were all along in the possession of his tenants. He relied very much on the fact that in the petition of the first party, dated 30-10-59 it was alleged that the 2nd party were not allowing the first party to go upon the lands since 24-10-59.

9. From this statement, the learned Magistrate thought that the second party were in possession after the 24th October, 1959. If this be the reasonable inference, from the statement made by the first party in his petition dated 30-10-59, it is inexplicable as to why such an inference was not drawn when he passed the main order on 18-1-60. He could then have held the second party to have been in actual possession from the date of commencement of the proceeding and passed a final order in that party's favour.

10. But when he found, as a fact that neither party was in actual possession it is obvious that he did not attach much importance to this statement in the petition of the first party dated 30-10-59. He should not therefore have utilised it, on 18-2-60, for the limited purpose of passing an ancillary order restoring possession of the disputed property to that party. In substance, his order dated 18-2-60, has the effect of putting the second party in possession of the disputed property without a proper enquiry and without a proper finding as to whether that party has established his possession in the proceeding under Section 145 of the Cr PC.

11. It would amount to an evasion of the provisions of that section. I have therefore no hesitation in accepting the reference and setting aside the order of the Magistrate dated 18-2-60. If as stated by him in his earlier order dated 18-1-60 the lands were in the possession of tenants who have not been disturbed by either party that possession may continue until either party chooses to go to the Civil Court for the establishment of his rights and for obtaining interim relief.

12. I may now dispose of a preliminary objection raised by Mr. Das, for the opposite party regarding the maintainability of this reference. He urged that the order of the learned Magistrate dated 18-2-60 must be held to be, in substance, an order passed under Section 517(1) of the Cr PC as pointed out in 22 Cut LT 435. According to Mr. Das, that order is appealable under Section 520 of the Cr PC to the Sessions Judge and where such a right of appeal is conferred the revisional jurisdiction of this Court is expressly barred by sub-section (5) of Section 439 of the Cr PC. This argument necessitates a careful examination of the true scope of Section 520 of the Cr PC about which there is sharp conflict of judicial opinion. That section runs thus:

“520. Stay of order under Sec. 517, 518 or 519—

Any court of appeal, confirmation, reference or revision, may direct any order under Sec. 517, Sec. 518, or Sec. 519, passed by a Court subordinate thereto, to be stayed pending consideration by the former Court and may modify, alter, or annul such order and make any further orders that may be just”.

In express terms this section does not purport to confer an independent right of appeal and one of the views which has found favour with some of the High Courts is that it only authorises a Court of appeal, or a Court of revision, or a Court to which a case is referred for confirmation, while disposing such an appeal, revision or reference, to modify, alter or annul an order passed by the lower court under Section 517 of the Cr PC: See Ghulam Ali v. Emperor, AIR 1945 Lah 47 and Ibrahim Rahmatullah v. Emperor, AIR 1947 Nag 33 and also a recent single Judge decision of the Allahabad High Court reported in Talewar Jha v. Mool Chand, AIR 1959 All 96 where the entire case law on the subject has been fully discussed.

13. On the other hand, the majority of the High Courts have held that Section 520 of the Cr PC confers an independent right of appeal, or revision, as the case may be, against an order passed under Section 517 of the Cr PC irrespective of whether the order passed by the lower court in the main case was either subject to appeal or was actually taken up on appeal: See Empress v. Jogessur Mochi, ILR 3 Cal 379; Queen Empress v. Ahmed, ILR 9 Mad 448; U Po Hla v. Ko Po Shein, AIR 1929 Rang 97 (FB) followed in Walchand v. Hari Anant, AIR 1932 Bom 534 (FB); Asst. Collector of Customs, Central Excise, Kandamangalam v. Krishna Pillai, AIR 1950 Mad 42 and Harihar Singh v. Nilkantha Singh, AIR 1957 Pat 685.

14. The relative merits of the aforesaid two conflicting views have been fully set out in the aforesaid single Judge decision of the Allahabad High Court in AIR 1959 All 96, and it is unnecessary to refer to them here. As there is no previous decision of this Court on the subject, I am free to prefer either of the two views which may appear to me more in consonance with the true rule of statutory construction.

15. The majority of the High Courts — who have preferred the view that Section 520 of the Cr PC confers an independent right of appeal or revision, as the case may be — seem to have been very much influenced by the fact that if the alternative, narrow view be taken a party will be remediless if the main dispute is not taken up on appeal of revision. Thus, if a case ends in acquittal and the Magistrate passes an order for disposal of the property, under Section 517 of the Cr PC and be party challenges that order of acquittal, the person, aggrieved by the Magistrate's order under Section 517 of the Cr PC will be left without a remedy unless Section 520 of the Cr PC is so construed as giving him an independent right to approach the superior Courts.

16. This argument is not quite correct because even in such cases the party aggrieved by an order under Section 517 of the Cr PC may always approach the High Court to exercise its powers of revision under Section 439 of the Cr PC. But on this ground alone it will not be proper to give an artificial construction to Section 520 of the Cr PC. Whenever the makers of the Code wanted to confer a right of appeal against a particular order, they expressed themselves in clear language.

17. Thus in sub-section (2) of Section 529 of the Cr PC which occurs in the very same chapter, a special right of appeal was conferred against an order passed under sub-section (1) of that section which would otherwise not be appealable. Similarly, in Section 476-B of the Cr PC the Legislature has made its intention absolutely clear as regards the right of appeal against an order passed under Section 476 or Section 476-A of the Cr PC.

18. If Section 520 of the Cr PC was also intended to confer an independent right of appeal against an order passed under Section 517, 518 or 519 of the Cr PC — irrespective of whether the main dispute was taken up on appeal or revision to the superior courts, the Legislature would surely have said so in clear language. The expression “any court of appeal” occurring in section 520 of the Cr PC is somewhat ambiguous and does not show what is the court which, would entertain the appeal against an order passed under Section 517 of the Cr PC.

19. In some of the reported decisions, an attempt was made to resolve the ambiguity by construing the aforesaid expression to mean a court to which “an appeal would ordinarily lie” against the judgment of the court concerned, adopting the language used by the Legislature in sub-Section (3) of Section 195 of the Cr PC. If such a construction be placed on that expression, the reference to the court of “confirmation” in Sec. 520 will be quite inept.

20. The only provision in the Code by which the High Court is expressly conferred the power of confirmation is that contained in Sec. 374 dealing with confirmation of death sentences. The other provision which might possibly be construed as referring to a court of confirmation is sub-sec. (2) of Sec. 123 which requires a Magistrate to submit to the Court of Session the records of a case in a proceeding under Section 110 of the Cr PC when security is required to be given for a period of more than a year.

21. In all these cases of confirmation the main case must necessarily be submitted to the superior court and consequently any order under Section 517 of the Cr PC passed by the lower court would also come up for consideration of the court of confirmation. There can thus be no question of construing Section 520 of the Cr PC as conferring an independent power so far as a court of confirmation is concerned. Then again the reference to the court of “revision” in Section 520 of the Cr PC is not explainable according to the liberal view.

22. There cannot be a right of appeal and exercise of revisional jurisdiction at the same time, over the same order. If the intention was that revisional jurisdiction should be exercised only over an appellate order passed under Section 520 of the Cr PC such an intention would have been made clear by appropriate language. Moreover, the Legislature would then have clearly indicated as to what are the appellate courts contemplated in Section 520 of the Cr PC and what will be the courts of revision, by using language similar to that used in sub-Section (3) of Section 195 of the Cr PC.

23. I am inclined to agree respectfully with the observations of the Allahabad High Court in AIR 1959 All 96 that if Section 520 of the Cr PC was actually intended to give an independent right of appeal against an order passed under Section 517 or 518 or 519 of the Cr PC that section would have been worded differently.

24. In the absence of such express words Section 520 of the Cr PC must be construed in the narrow sense as pointed in the Allahabad decision. I am accordingly satisfied that the reference made by the Sessions Judge is competent as there was no right of appeal against the order of the Magistrate dated 18-2-60.

25. For the aforesaid reasons the reference is accepted and the order of the Magistrate dated 18-2-60 is set aside.