P L D 1960 Dacca 23 (PLP)

Ramnath Sheonarayan v. Sonaji Krisnaji A I R 1948 Nag. 250 ; Abdul Razzaq v. Emperor A I R 1947 Oudh 1 and Savlaram Sadoba Navle v. Dhyaneshwar Vishnu Chinke A I R 1942 Bom. 148 approved. Reference Case No. 17 of 1957 (Unreported) ref. Fazlul Karim in support of the Reference. Abdul Hye Chowdhury in Opposition of the Reference. This Reference under section 438 of the Code of Criminal Procedure has been made by Mr. N. M. Khan, Additional Sessions Judge, Bakarganj.

2. The facts of the case are as follows : On the 25th of May 1956, the complainant Lal Mia filed a petition of complaint before the Sub‑Divisional Magistrate, Bhola, against the accused Ahmed ullah Mian and Eshaque Mian. The prosecution case is that the accused erected a tin but overhanging a part of the roof of the complainant in spite of protests, and thereby caused annoyance and damage to the complainant by blocking the ventilation as well as by damaging the roof of his hut. On this complaint, the accused were tried by Mr. T. H. Talukdar, a Magistrate of the 2nd Class, Bhola, under section 447 of the Pakistan Penal Code, on the 30th of January 1957, and they were convicted and sentenc ed to pay a fine of Rs. 50, in default, to undergo rigorous imprisonment for three months, each. Thereafter, on the 25th of February 1957, the complainant filed a petition for being restored to possession of his property from which he had been forcibly dispossessed by the accused

1. Accordingly, the learned Magistrate by his order, dated the 2nd of April 1957, directed the officer in charge of Borhanuddin P. S. to deliver possession of the disputed property to the complainant. The accused thereupon moved the Magistrate for cancellation of the said order and to stay all further proceedings. On the 15th of May 1957, they came up in appeal against the order, dated the 2nd of April 1957. Subsequently they filed another petition on the 1st of June 1957; before the Sessions Judge stating that the order under section 522 of the Code of Criminal Procedure was not appealable and, as such, they prayed that their appeal might be treated as an application in revision. The learned Sessions Judge granted the prayer and admitted the appeal as a motion. It was then transferred to the 3rd Court of Additional Sessions Judge. The learned Additional Sessions Judge has made this Reference for setting aside the order of the 2nd of April 1957, on the ground that the order of the learned Magistrate was passed more than two months after the date of conviction.

3. Mr. Fazlul Karim, Advocate, appears in support of the Reference, and Mr. Abdul Haye Choudhury, Advocate, appears in opposition thereto.

4. It is true that there are some authorities in support of the Reference. It has been held by the Lahore High Court in the case of Ghazan v. Bhag Bhari (33 Cr. L J 191) that "An order for restoration of possession under section 522 (1), Criminal Procedure Code, cannot be made after the expiry of one month from the date of the conviction", and that the words "Court of appeal, confirmation, reference or revision" in section 522 (3) refer to the Courts deal ing with the original conviction or trial, and do not apply to the High Court in Reference from the order restoring possession. This view was also taken by the Calcutta High Court in the case of Aswini Kumar Das v. Sasanka Mohan Bose (33 Cr. L J 868). The Rangoon High Court also took a similar view in the case of Daw Mya v. Emperor (38 Cr. L J 918). But the contrary view has been taken by the Bombay, Patna, Oudh and Nagpur High Courts. In Ramnath Sheonarayan v. Sonaji Krishnaji (A I R 1948 Nag. 250), Pollock, J., has held that "A High Court hearing a revision application not against an order of conviction, but against an order restoring or refusing to restore possession under section 522 (1) is a Court of revision within the meaning of section 522 (3), and, therefore, has jurisdiction to make an order under section 522 (1)." In Abdul Razzaq v. Emperor (A I R 1947 Oudh 1), Kaul, J., has held: Where the Sessions Judge has dismissed an application made under section 522 (3) for restoration of possession on the ground that it was belated application, but has not taken into consi deration the fact that the applicant had originally filed the applica tion under section 522 before the Magistrate within 30 days of the conviction of the accused, and that application was returned to him with direction that it should be presented again after the decision of the Appellate Court against the order of conviction was given, the High Court under section 522 (3) should interfere with the discre tion of the Sessions Judge and restore possession to the applicant." In Savlaram' Sadoba Navle v. Dhyaneshwar Vishnu Chinke (A I R 1942 Bom. 148), Beaumount, C. J., and N. J. Wadia, J., have held: "Although there be not before the Court any application in appeal or revision against the conviction of the accused, and the Magistrate has rightly dismissed the application for an order for possession under section 522 (1), because made more than a month after the convic tion, still the High Court can under subsection (3) of section 522 make an order for possession in a proper case in revision against the order dismissing the application for possession." In our high Court, a similar matter came up before my learned brother Rahman, J., in the case of Habibul Huq v. Noor Muhammad and another (unreported decision in Reference under section 438 of the Code of Criminal Procedure, Case No. 17 of 1957, disposed of on the 4th of March 1957), where his Lordship has followed the Bombay decision and has held : "The Sub‑divisional Magistrate thought that since more than one month had expired, and no order had been made in the petition, he had no jurisdiction to make any order. There is authority for the proposition that this Court can, in such circumstances, make the order for restoration. Refer ence may be made iii this connection to the order of Chief Justice Beaumont and Wadia, J., in the case Savlaram Sadoba Navle v. Dhvneshwar Vishnu Chinke." From all these decisions it will be seen that the majority of the High Courts have taken the view which is contrary to the view canvassed by the learned Additional sessions Judge to be taken in this case, and particularly against the decision of this High Court. Section 522 (3) only refers to an order under that section, and provides that it is to be made by any Court of appeal, confirmation, reference or revision. The inter pretation given by the Bombay, Nagpur, Patna and Oudh Courts, and this Court is not against the complainant and I see no reason to differ from the same.

5. I entirely agree with the view taken by the Bombay, Nagpur, Patna and Oudh Courts, and the decision of my learned brother Rahman, J., and hold that this Court may pass an order, under section 522 of the Code of Criminal Procedure as a Court of reference and revision. The complainant has already been directed to be restored to possession by an. order of the Magistrate, and this order is maintained by this Court. The Reference is dis posed of in these terms. K. B. A. Reference answered.