We are of opinion that this Rule must be made absolute on the ground on which it was issued. The considerations which moved the Full Bench in the case of Mehi Singh v. Mangal Khandu(1) seem to apply with equal or even more force to an order under sec. 522, Cr. P.C It is clear that the confirming of a conviction on appeal where the Magistrate had not thought it necessary to act under sec. 522 cannot make such an order a consequential belief, or an order ancillary in character for which no separate authority is needed. Separate authority under sec. 522 was distinctly needed before any Criminal Court could have such extraordinary powers as are given thereby. The power is an unusual one. It is one certainly not inherent in the ordinary Courts of Criminal Jurisdiction and it certainly could not be exercised by any person Other than the Court which convicted of an offence attended with criminal force and held independently that by such force any person had been dispossessed of any immoveable properly; and that independent finding must of course be the finding of the Court of first instance. The Appellant Court cannot come to an independent finding upon a matter which is not before it in appeal. We do not think it necessary to discuss the divergence of opinion between this Court and the Bombay Court as regards the time at which such an order should be passed but we may say that were we to agree with the view taken by the Bombay Court in Narayan Gobind v. Visaji(2). The want of jurisdiction in the Appellate Court would thereby be rendered still more clear; for the Bombay Court says that an order made under sec. 522, Cr. P.C, restoring possession of immoveable property to a person who has been dispossessed of it by criminal force is an independent order, and may therefore be made subsequent to the date of the conviction of the offender and need not be made at the same time as the conviction. If that is so the Court which had the conviction before it on appeal obviously had nothing whatever to do with the order under sec. 522 and could not pass an independent order directing restoration of the property.
The Rule is made absolute and the order under sec. 522 set aside.
Rule made absolute.