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Case Number
Attorney(S)
  • Mr. Jackson and Babu Baihantha Nath Dass for the Petitioner;
  • Sir Griffith Evans and Babu Dwarka Nath Chakravarty for the Opposite Party.
Judges
  • Hill
  • Wilkins, JJ.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. Jackson and Babu Baihantha Nath Dass for the Petitioner;
  • Sir Griffith Evans and Babu Dwarka Nath Chakravarty for the Opposite Party.
Judges
  • Hill
  • Wilkins, JJ.
See more information ...
Smart Summary

Concise Analytical Summary of the Judgment

Factual and Procedural Background

The material facts, as stated in the opinion, are these. In October 1896 the Petitioner, Ram Chandra Mistry, charged four persons—Nabin Mridha, Mahesh Mundle, Rajkishore Manjhi and Latim Shil (the Opposite Party)—before the Deputy Magistrate of Pirozspore with offences under sections 147, 148 and 326 of the Penal Code, alleging that they and others forcibly deprived him of possession of certain land held by him as tenant of Loke Nath.

On 21 December 1896 the Deputy Magistrate convicted some of the accused under the rioting and grievous hurt provisions and sentenced them to imprisonment. He also made an order under section 522 of the Code of Criminal Procedure for restoration of the Petitioner to possession of the disputed land; that order was implemented the same month.

The Opposite Party appealed to the Court of Session, which initially upheld the Deputy Magistrate. The case was later taken to the higher Court and remitted to the Court of Session for retrial with guidance that a finding as to actual possession at the time of the occurrence was necessary. On retrial the Sessions Judge found the Opposite Party to have been in actual possession and, except in the case of Nabin Mridha, held that the Opposite Party acted within the right of private defence; he set aside the rioting convictions and the Deputy Magistrate's order under section 522. Nabin Mridha alone remained convicted under section 326, with sentence reduced and already served, and was released.

After the Sessions Judge set aside the section 522 order, Nabin Mridha applied to the Deputy Magistrate to be restored to possession; the Deputy Magistrate refused. The Sessions Judge on 23 September 1897 made an order cancelling the Deputy Magistrate's section 522 order and stating that he could give no orders to the police but that it was the Deputy Magistrate's duty to give effect to the Appellate Court's order. Subsequently, on 27 September, the Deputy Magistrate issued a direction to the police to "give effect to the orders of the Sessions Judge at once."

The present Rule (the petition before the Court) was in terms confined to the Deputy Magistrate's 27 September order being "vague and misleading," but at the hearing the principal question discussed was the legality of the Court of Session's reversal of the Deputy Magistrate's section 522 order and of the Sessions Judge's 23 September 1897 order directing the Deputy Magistrate to carry out that reversal.

Legal Issues Presented

  1. Whether the Court of Session had jurisdiction to set aside an order of a Deputy Magistrate made under section 522 of the Code of Criminal Procedure.
  2. Whether an order under section 522 is subject to appellate review or reversal by a superior Court (in light of the statutory scheme, including section 404 and related provisions), or whether such an order has finality in criminal courts.
  3. Whether, by implication or inherent judicial power, a superior Court can order restitution of possession (or otherwise direct the executive) where a subordinate Court's order has placed a party in possession, and if so, whether that power was lawfully exercised in this case by the Court of Session and in its 23 September 1897 order.

Arguments of the Parties

Petitioner's Arguments (Ram Chandra Mistry)

  • Both the Court of Session's reversal of the Deputy Magistrate's section 522 order and its 23 September 1897 direction were made without jurisdiction.
  • No procedure is laid down in the Code for effecting restitution of possession where possession has been changed pursuant to an order under section 522; this absence of procedure, the Petitioner argued, did not support the opposite view because the Code is equally silent as to procedure for giving effect to such an order when properly made, and the executive must carry out Court orders.
  • Relied on the proposition that when an Appellate Court comes to a different conclusion from a Subordinate Court on possession, it should have the power to undo what the subordinate Court unlawfully did to avoid grave injustice.
  • Cited authorities in support: Basudeb Surma Gossain v. Naziruddin and Fateh Chand v. Durga Prosad.

Opposite Party's Arguments (represented by Sir Griffith Evans)

  • Relied on a passage from Rodger v. Camploir D. Escompte de Paris (Privy Council) asserting the duty of Courts to take care that the acts of the Courts do not injure any of the suitors, arguing that a superior Court has an inherent power to redress such injury by restoring possession.
  • Submitted that, given the Sessions Judge's finding that the Opposite Party had been injuriously affected by the Deputy Magistrate's order placing the Petitioner in possession, the superior Court ought to be able to remedy that wrong by restoring possession.
  • Also relied on Ambler v. Pushong (though the court found that case not to be in point in the present view).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Basudeb Surma Gossain v. Naziruddin Authority where a superior Court set aside a Magistrate's order under section 517 and stated it was unable to order restitution of the property. The Court observed that this decision did not furnish direct authority for the Petitioner's contention regarding section 522. The learned Judges' reasons in that case were not disclosed, and therefore the present Court declined to treat it as decisive by analogy.
Fateh Chand v. Durga Prosad Another case in which the Court set aside an order under section 517; the question of restitution was considered not to be before the Court. The Court noted that Fateh Chand did not express an opinion on restitution; consequently it could not be relied upon as authority for the power to order restitution in the present context.
In re Annopurna Bai Referenced in prior authorities as a case whose reasoning on restitution was not disclosed. The Court noted that Basudeb Surma followed In re Annopurna Bai, but that in both instances the reasons were not stated; this undercut any firm analogical application to the present case.
Rodger v. Camploir D. Escompte de Paris Passage relied upon stating the duty of Courts to ensure that their acts do not injure suitors (a general principle supporting redress where a Court act has caused wrongful injury). The Court acknowledged the principle and said it might be applied in a fit case; but it confined its decision to the specific legal question presented (whether the Sessions Judge had jurisdiction to reverse a section 522 order) and did not resolve whether it would itself exercise any inherent power to order restitution.
Ambler v. Pushong Cited by opposing counsel (context not elaborated in detail in the opinion). The Court observed that, in the view it took of this case, Ambler v. Pushong was not in point.

Court's Reasoning and Analysis

The Court conducted a statutory and precedential analysis, confined by the facts and the submissions before it. The principal strands of its reasoning were these:

  1. Scope of the question: The Court limited the issue before it to the legality of the Court of Session's reversal of the Deputy Magistrate's order under section 522 and the Sessions Judge's subsequent direction (the 23rd September order) to the Deputy Magistrate to give effect to that reversal. It expressly refrained from deciding whether the higher Court itself should exercise any inherent power to order restitution in a proper case.
  2. Precedent review: The Court examined the cases relied upon by the Petitioner (Basudeb Surma Gossain v. Naziruddin and Fateh Chand v. Durga Prosad) and found them insufficient to establish the proposition that a superior Court has jurisdiction to direct restitution where an order under section 522 has been made. In particular, the Court observed that the earlier authorities either did not express the reasoning for denying restitution or did not have the question before them in a way that could authoritatively determine the present issue.
  3. Statutory scheme and finality: The Court's primary reason was statutory. It relied on the general rule in section 404 of the Code of Criminal Procedure that "no appeal shall lie from any order of a Criminal Court except as provided for by the Code." The Court found no provision for an appeal from an order under section 522, and the Court refused to treat such an order as merely an integral part of the criminal judgment that would stand or fall with the judgment on appeal. The Court inferred that the Legislature intended that an order under section 522, once made, should have finality in so far as criminal courts are concerned.
  4. Analogy with section 517/520: The Court strengthened this conclusion by reference to the parallel provisions governing orders under section 517, where section 520 prescribes precise powers exercisable by superior Courts. The presence of express provisions in relation to section 517 (and section 520) contrasted with the silence in relation to section 522 supported the view that superior Courts do not possess the power to reverse a section 522 order as part of appellate review under the Code.
  5. On the respondents' reliance on equitable/inherent powers: While acknowledging the force of the general principle (as drawn from Rodger v. Camploir D. Escompte de Paris) that Courts should avoid inflicting injury by their acts and may possess inherent powers to remedy such injury, the Court emphasized that the specific legal question before it was the statutory jurisdiction of the Sessions Judge to set aside the section 522 order. Where the law as written did not permit such review, the Court considered itself bound to apply the law as found rather than to extend revisional powers in the present circumstances.
  6. Result on deputy magistrate's subsequent direction: Consequentially, the Court found that the Sessions Judge had exceeded his jurisdiction in setting aside the Deputy Magistrate's section 522 order and in issuing the 23 September direction, and that the subsequent Deputy Magistrate order of 27 September (directing the police to give effect to the Sessions Judge's orders) could not stand.

Holding and Implications

Holding: The Court made the Rule absolute. It set aside (a) the order of the learned Sessions Judge reversing the Deputy Magistrate's order made under section 522 of the Code of Criminal Procedure, (b) the Sessions Judge's order of 23rd September 1897, and (c) the Deputy Magistrate's order of 27th September 1897.

Implications:

  • Direct effect: The immediate effect of the judgment is to restore the legal position that the Deputy Magistrate's order under section 522 stands, because the superior Court's reversal and subsequent directions have been quashed.
  • Jurisdictional principle affirmed: The Court articulated and applied the principle that, under the Code as it then stood, orders under section 522 are not subject to appellate reversal by a superior Court in the absence of an express provision permitting such review; section 404's general bar on appeals except as provided by the Code was central to this conclusion.
  • No broader remedial ruling: The Court expressly confined itself to the question of jurisdiction and did not purport to decide more generally whether superior Courts might, in some circumstances and by other means, exercise inherent powers to effect restitution or to direct the executive. The opinion therefore addresses only the limited legal issue before the Court and does not announce a broader rule beyond the statutory interpretation applied.

Disposition: Rule made absolute. (H.P.C.)

This summary is based exclusively on the text of the provided opinion and does not add information beyond what is contained therein.

Show full summary ...

    Ram Chandra Mistry v. Nabin Mridha

    The Judgment of the Court was as follows:—

    The material facts of this case are as follows:— In October 1896, Ram Chandra Mistry, the Petitioner in this matter, charged four persons, Nabin Mridha, Mahesh Mundle, Rajkishore Manjhi and Latim Shil (the Opposite Party), before the Deputy Magistrate of Pirozspore, with offences under secs. 147, 148 and 326 of the Penal Code, alleging, inter alia, that they with some 50 or 60 armed men had forcibly deprived him of possession of certain land held by him as the tenant of one Loke Nath. On the 21st December 1896, the Deputy Magistrate found two of the four accused persons guilty of the offence of rioting under sec. 147, the other two of the offence of rioting, being armed with a deadly weapon, under sec. 148, and Nabin Mridha, he found guilty of an offence under sec. 326, and he sentenced them to various terms of imprisonment. He at the same time made an order under sec. 522 of the Code of Criminal Procedure for the restoration of the Petitioner to possession of the disputed land. This order was carried into effect during the same month.

    The Opposite Party then appealed to the Court of Session, which, in the first instance, upheld the decision of the Deputy Magistrate. They afterwards, however, petitioned this Court, with the result that the case was remitted to the Court of Session for retrial. Among other matters indicated for the guidance of the Court of Session, the learned Judges pointed out that it was necessary under the circumstances of the case to come to a finding as to which of the two contending parties was in actual possession of the disputed land when the occurrence complained of took place. Upon the retrial the learned Sessions Judge came to the conclusion that the Opposite Party were at that time in actual possession, and, in respect of any violence they had used, he also held that, with the exception of Nabin Mridha, they had acted within the right if defence of their property. He accordingly set aside the convictions and sentences under the rioting sections of the Code. In the case of Nabin Mridha he held that the right of private defence had been exceeded, and therefore maintained his conviction under sec. 326. He, however, reduced his sentence to one of six months' imprisonment, and as that period had then expired, ordered his release. The learned Judge further set aside the order passed by the Duputy Magistrate under sec. 522 of the Code of Criminal Procedure. An application was then made to the Deputy Magistrate by Nabin Mridha and his party to be restored to possession of the disputed land, but this was refused, the Deputy Magistrate being of opinion that it did not appear from the order of the Court of Session that Ram Chandra was to be turned out of possession for the purpose of replacing the other side in possession. Thereupon Nobin Mridha applied to the Court of Session for relief in the matter, and that Court on the 23rd of September 1897 passed the following order on the application:— “I can give no further orders than what I have done. I have cancelled the Deputy Magistrate's order under sec. 522, and all proceedings under that section are necessarily rendered null and void. I can give no orders to the police, but it is the duty of the Deputy Magistrate to give effect to the order of the Appellate Court, and also to maintain order and peace.” This was followed by another application by Nabin Mridha and his party to the Deputy Magistrate for restoration of possession, and on the 27th September the Deputy Magistrate passed an order for the issue of a peno ni to the police directing them “to give effect to the orders of the Sessions Judge at once.”

    It is to this order of the Deputy Magistrate's being “vague and misleading,” that the Rule in this case is in terms Confined, but at the hearing, the question which was, with our permission, chiefly discussed was the legality of the order made by the Court of Session reversing the order passed by the Deputy Magistrate on the 21st December 1896, under sec. 522 of the Code, as well as of the order of the 23rd September 1897, by which the Court of Session in effect directed the Deputy Magistrate to carry out the order of reversal. It was contended on the part of the Petitioner that both these orders were made without jurisdiction and reliance was placed on the circumstance that no procedure is laid down by the Code for effecting restitution of possession, where a person has been ousted in pursuance of an order made under sec. 522 on the part of the Opposite Party it was contended that when an Appellate Court comes to a conclusion different from that of a Subordinate Court upon the question of possession, it must, upon principle, possess the power of undoing that which has been unlawfully done by the latter Court that otherwise the action of the Courts might lead to grave injustice, and that as for the absence from the Code of any prescribed procedure for restoring to possession a person who has been wrongfully dispossessed, it did not advance the argument for the other side since the Code was likewise silent as to the procedure to be followed for giving effect to such an order when properly made. In the one case as in the other, it was said, it lies with the executive to carry out the orders of the Court. The learned counsel for the Petitioner, in support of his contention, cited the cases of Basudeb Surma Gossain v. Naziruddin and Fateh Chand v. Durga Prosad.

    In the former case the learned Judges, while setting aside an order made by a Magistrate under sec. 517 of the Code, stated expressly that they were unable to order restitution of the property. In the latter also the Court set aside an order made under that section, but it was considered that the question of the restitution of the property was not before the Court, and the learned Judges therefore expressed no opinion upon it.

    It can hardly, therefore, be claimed as an authority in support of the Petitioner's contention. It was, however, argued on the authority of Basudeb Surma's case that if, notwithstanding the provisions of sec. 520 of the Code, a Superior Court has not authority to direct the restoration of property affected by an order made under sec. 517 of the Code, the same must be the case with respect to the property affected by an order under sec. 522. We are not prepared on the authority of this case to commit ourselves to such a position. It may indeed be that the consideration which weighed with the learned Judges was decided the case was, as the learned counsel contended, that the Code does not provide any procedure for effecting restitution, when possession has changed under an order made under sec. 517, and if this was in fact their reason, the case might perhaps be applied by way of analogy to the present case. But their reasons are not disclosed. They merely say that in this respect they follow the case of In re Annopurna Bai (3), in which likewise the reason by which the learned Judges were guided are not stated. We think, too, we may add that it would be unsafe to conclude merely because the Legislature has not provided a remedy by way of restitution for a person who has been improperly deprived of the possession of property of the kind to which sec. 517 relates, that it therefore intended that a person improperly deprived of the possession of immoveable property in pursuance of an order made under sec. 522 should be without a remedy of that nature.

    On behalf of the Opposite Party, Sir Griffith Evans referred us to a passage from the case of Rodger v. Camploir D. Escompte de Paris (4), in which the Judicial Committee of the Privy Council refer to the duty of all Courts to take care that the act of the Courts does no injury to any of the suitors. His contention was that since it was shown by the findings of the Court of Session on the question of possession remitted to it by this Court that his clients had been injuriously affected by the action of the Magistrate by which the Petitioner had been placed in possession, the power must be inherent to the Courts, and ought to be exercised, of redressing this wrong by restoring to them the possession of which they had been wrongfully deprived. We need not say that in a case which we considered to be a fit one in all respects for its application, we should not hesitate to enforce the principle referred to. The question, however, now before us, is not whether we should ourselves exercise the power, if we possess it, of ordering the persons previously in possession to be restored to possession, but is confined to the legality of the reversal by the Court of Session of the Magistrate's order under sec. 522 and of the subsequent measures taken to give effect to its reversal. And if, under the law as it stands, the Magistrate's order was not open to review in the Court of Session, we think our proper course is to apply the law as we find it. We might, it is true, if satisfied that the ends of justice would be best served thereby, refuse to exercise the revisional powers of the Court in favour of the Petitioner, but on the whole, we think that more harm than good might now result from the adoption of that course. In our view of the law, the Court of Session dealing as it did in the present case as a Court of Appeal with the judgment of the Deputy Magistrate convicting the accused exceeded its jurisdiction in setting aside the order made under sec. 522. Our primary reason for this opinion is that an order passed under that section must be subject to the general rule as laid down by sec. 404 of the Code, that no appeal shall lie from any order of a Criminal Court except as provided for by the Code, while there is, so far as we are aware, no provision made by the Code for an appeal from an order under sec. 522. Nor can such an order be regarded as an integral part of the judgment appealed from, so as to stand or fall, according as the judgment is upheld or reversed. If that were so, the Legislature would no doubt have so provided. But it seems to have been intended, and the reasons for this are not difficult to conceive, that an order giving possession under the section being once made should, in so far as the Criminal Courts are concerned, have finality. We are strengthened in this view by the consideration that in the case of orders made under sec. 517, which falls within the same chapter of the Code, very precise provisions are laid down by sec. 520 in respect of the powers which may be exercised by the superior Courts.

    We should add that Sir Griffith Evans relied also on Ambler v. Pushong (5), but in the view which we take of the case, we do not think that it is in point.

    We make the rule absolute and set aside the order of the learned Sessions Judge reversing the order made by the Deputy Magistrate under sec. 522, as well as his order of the 23rd September 1897, and also the order of the Deputy Magistrate passed on the 27th September.

    H.P.C
    Rule made absolute.

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    Ram Chandra Mistry v. Nabin Mridha
    (Jan 3, 1898)