P L D 1961 Dacca 648 (PLP)

These two applications in revision one filed by the com plainant being Criminal Revision Case No. 491 of 1960 and the other filed by the accused being Criminal Revision Case No. 536 of 1960, have been heard together and will be governed by one judgment as they arise out of the same facts involving common question of law. It appears that the complainant Basiruddin Mia filed a complaint against the accused for their prosecution under sections 147 and 448 of the Pakistan Penal Code for unlawful assembly and for forcible entry into the two rooms occupied by the complainant's son which the complainant purchased from one Bhuban. It was alleged that the accused after entering the said rooms by force pushed out complainant's son and threw away the furniture and other articles and forcibly occupied the said rooms. The accused under trial were found, guilty of being members of an unlawful assembly and of house trespass by the trial Court and were convicted under sections 147 and 448 of the Pakistan Penal Code and sentenced to pay a fine of Rs. 75 each under section 147 of the Pakistan Penal Code. No separate sentence was, however, passed under section 448 of the Pakistan Penal Code. It further appears that the trial Court passed an order in favour of the com plainant under section 522 (1) of the Code of Criminal Procedure for restoration of possession of the two rooms in question which was the subject‑matter of the offence under section 448 of the Pakistan Penal Code.

2. The accused preferred an appeal to the learned Sessions Judge. The appeal was transferred to the learned Additional Sessions Judge who heard it and upheld the conviction passed by the learned Magistrate. The accused came up to this Court in revision against the order of the learned Additional Sessions Judge and this Court set aside the judgment of the learned Additional Sessions Judge and sent the case back on remand for re‑hearing of the appeal. The appeal was re‑heard by another Additional Sessions Judge as directed by this Court and the conviction and sentence passed by the learned Magistrate upon the accused were set aside by the said Judge with the result that the accused were acquitted as no offence of rioting or committing house trespass was held to have been proved against them. The learned Additional Sessions Judge however, passed no order while disposing of the appeal in respect of the order passed by the learned Magistrate under section 522 (1) of the Code of Criminal Procedure i.e., the learned Appellate Court did not pass any order setting aside the order for restoration of possession passed under section 522 (1) in favour of the complainant by the trial Court. So there remained against the accused the order under section 522 of the Code of Criminal Procedure. The accused Madhulal Sumani who appears to have been affected by that order subsequently filed an application under section 522 of the Code of Criminal Procedure for res toring possession of the two rooms wherefrom he was dis possessed by the complainant by virtue of the order of the trial Court. The learned Additional Sessions Judge heard the lawyers of both sides and allowed the application and ordered re‑delivery of possession of the disputed rooms to the accused Madhulal Sumani.

3. Against this order of the learned Additional Sessions Judge the complainant has filed an application in revision which has been numbered as Criminal Revision Case No. 491 of 1960 referred to above. The accused persons, on the other hand, have filed another application in revision under section 439 of the Code of Criminal Procedure which has been numbered as Criminal Revision Case No. 536 of 1960 for setting aside the order passed by the trial Court under section 522 (1) of the Code of Criminal Procedure in favour of the complainant. The complainant has challenged the order of the learned Additional Sessions Judge for restoration of possession to the accused on the ground that the learned Additional Sessions Judge became functus officio at the time when he passed the order and as such he had no jurisdiction to entertain the application and set aside the order in question passed by the trial Court.

4. This application is opposed by the accused opposite‑parties. The accused opposite‑parties in their revision application prayed for setting aside the order of. trial Court passed under section 522 (1) of the Code of Criminal Procedure in favour of the complainant on the ground that the learned Additional Sessions Judge who heard and disposed of the appeal acquitting the accused persons was bound to set aside the order of the learned Magistrate passed under section 522 (1), Cr. P. C., and he having omitted to do so this Court in its revisional jurisdic tion is entitled to set aside the order in question passed by the trial Court under section 439 read with section, 423 clause (d) of the Code of Criminal Procedure.

5. In both these cases Rules were issued. So far as Criminal Revision Case No. 491 of 1960 is concerned Mr. Sayem the learned Advocate appearing on behalf of the accused contends that the learned Additional Sessions Judge who acquitted the accused in appeal and who through inadvertance or accidental slip omitted to pass the order setting aside the order passed by the trial Court under section 522 (1) of the Code of Criminal Procedure was competent to set aside the said order subsequent to the disposal of the appeal under section 423 (1)(d) of the Code of Criminal Procedure, as such an order was a conse quential or incidental one as also under section 369 of the Code of Criminal Procedure which empowers the Court to correct a clerical error. I may at once say that the provision of section 369 of the Code of Criminal Procedure has no application at all on the facts of the present case.

6. So far as section 423 (1)(d) is concerned I may say that the provisions of clause (d), sub‑clause (1) of section 4223 is applicable when the main order is passed, i.e., the Appellate Court in this case the learned Additional Sessions Judge was entitled to pass an order setting aside the order under section 522 (1) of the Code of Criminal Procedure which was liable or likely to follow as a result of the main order. In other words the learned Additional Sessions Judge while setting aside the conviction and sentence of the accused was entitled to pass an incidental or consequential order which followed as a result of his main order in setting aside the conviction and sentence and he was bound to pass such order at the time he passed the main order i.e., the order of setting aside of conviction and sentence, acquitting the accused. After the appeal was disposed of by the learned Additional Sessions Judge he became functus officio and as such he had no jurisdiction to entertain the application of the acquitted accused for setting aside the order passed by the learned trial Magistrate under section 522 (1) of the Code of Criminal Procedure. His omission to pass the order at the time of passing the main order is not, however, appealable but a revision lies against that. The accused petitioners, as I have already stated, have also come up in revision under section 439 of the Code of Criminal Procedure for setting aside the order of the trial Court passed under section 522 (1) of the Code of Criminal Procedure.

7. Mr. Meser Ali, learned counsel appearing on behalf of the complainant has vehemently argued that the accused are not entitled to have the order of the trial Court revised under section 439 of the Code of Criminal Procedure and that his remedy was by way of an application under section 561‑A of the Code of Criminal Procedure and that the accused having not invoked the aid of section 561‑A of the Code of Criminal Procedure they are not entitled to any relief in this case. I am however, unable to accept this contention. On a perusal of section 439 and section 423 (1) (d) of the Code of Criminal Procedure it appears quite clear that this Court has power to revise an order passed by the learned Magistrate under section 522 (1) of the Code of Criminal Procedure.

8. In support of this view I may refer to the case of Malkhan Singh and another v. Emperor (A I R 1945 All. 226). In that case the accused were convicted under section 448 of the Pakistan Penal Code for forcible entry into a house after breaking open the lock. The conviction was set aside on appeal. After the con viction of the accused, the complainant obtained possession of the house under order of the trial Court under section 522 of the Code of Criminal Procedure. After their acquittal the applicants moved the learned trial Court for rescinding his previous order delivering possession to the complainant. The trial Court rejected their application. An application in revision was filed before the learned Sessions Judge which was unsuccessful. The case came up in revision to the High Court against the order of the learned Sessions Judge. Wali Ullah, J., in delivering the judgment in that case observed :‑ "It seems to me that the point is a very simple one. The question is whether under the circumstances set out above, possession over the house should be restored to the applicants from whom it had been taken away on their conviction and delivered to the complainant. There can be no doubt what soever that this Court has power as a Court of revision under section 439 read with section 423, subsection (1) sub‑clause (d), Criminal P. C. to reverse an order passed by the learned Magistrate under section 522, Criminal P. C. . . . . It is however, clear that after the quashing of the conviction by the Appellate Court the accused (the applicants) must be deemed to be innocent of the crime. When once their conviction has been set aside the order passed by the learned Magistrates under section 522, Criminal P. C. which was obviously passed in consequence of such a conviction must also be set aside and the property should be restored to the accused even though the equities may in a sense be in favour of the complainant." Same view has been taken in the case of Manki v. Bhagvanti (27 All. 415). In that case the complainant laid a complaint against the accused of offences under sections 352 and 448 of the Indian Penal Code. The accused were found guilty of house trespass and sentenced to imprisonment. The complainant then applied to the Criminal Court which has convicted the accused and obtained an order in her favour under section 522 awarding to her possession over the house the subject‑matter of the offence under section 448 of the Code. In the meantime the accused had appealed from the conviction and sentence, with the result that she was acquitted, and no offence either of using force or of committing house trespass was held to have been proved against her. There remained, however, against her the order under section

522. That order being not appealable an application was filed before the District Magistrate and the District Magistrate requested the High Court to interfere in revision. It was urged that the High Court had no power to interfere. It was held that under section 423 (1)(d) a High Court has power as a Court of revision to reverse an order passed by a subordinate Court under section 522 of the Code of Criminal Procedure. I respectfully agree with the views taken in these cases. I accord ingly hold that this Court has power to interfere in a case like the present one.

9. So far as section 561‑A is concerned I am not prepared to accept the contention of the learned Counsel that the accused having not filed the application under section 561‑A of the Code of Criminal Procedure they are not entitled to invoke the aid of that section. In view of my finding that this Court has power to interfere with the order passed by the learned Magistrate under section 522 of the Code of Criminal Procedure as a Court of revision, under sections 439 read with 423 (1) (d), it is not at all necessary for the accused to invoke the aid of 'section 561‑A of the Code of Criminal Procedure. I may, however, observe that under section 561‑A this Court has ample power to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice and as such this Court in the exercise of the inherent powers vested in it under section 561‑A of the Code of Criminal Procedure can restore possession of the disputed rooms to the accused who have been acquitted in appeal. I accordingly make the Rule issued in Criminal Revision Case No. 536 of 1960, absolute. I set aside the order passed by the trial Court under Section 522 (1) of the Code of Criminal Procedure and direct that the accused be restored to the possession of the rooms in dispute. The District Magistrate is directed to restore possession of the two rooms in question to the accused No. 1, Madhu Lal Somani. I also make the rule issued in Criminal Revision Case 491 of 1960 absolute and set aside the order passed by the learned Additional Sessions Judge restoring possession of the disputed rooms to the petitioners under section 522 as the said order was without jurisdiction. K. B. A. Rule made absolute.