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PATNA HIGH COURT
Ramratna Singh and K.K.Dutta JJ.
Sakhichand Sahu
Versus
Ishwar Dayal Sahu
Criminal Revision No. 906 of 1965 ; 1343 of 1965 ;
Decided On : DECEMBER 16, 1966
LIMITATION - Revision application - Period of limitation - Whether to be counted from the date of the order of the Magistrate or from the date of the order of the Sessions Judge or District Magistrate - Whether the period spent in prosecuting an application in revision before the Sessions Judge or District Magistrate can be excluded in computing the period of limitation - Whether the High Court can interfere with the Magistrate's order in exercise of its wide power under Sec. 439 of the Code, even though incorrectness, illegality or impropriety is brought to its notice after the expiry of ninety days prescribed for an application in revision by a private party.
Fact of the Case:
The petitioners had come directly to the High Court, without following the usual practice of going to the Sessions Judge in the first instance, and the question then raised was whether their application in revision could be entertained, particularly in view of a decision of Mahapatra J. in Abdul Sayeed Khan V/s. Jagarnath Nonia, 1965 B.L.J.R. 427.
Finding of the Court:
The period of ninety days fixed by Article 131 of the new Limitation Act, according to which the prescribed period has to be counted from the date of the impugned order of the Magistrate. The period covered by the pendency of the revisional application before a Sessions Judge cannot be added to the period of ninety days fixed by Article 131 of the new Limitation Act. The High Court can interfere with the Magistrate's order in exercise of its wide power under Sec. 439 of the Code, even though incorrectness, illegality or impropriety is brought to its notice after the expiry of ninety days prescribed for an application in revision by a private party.
Issues: 1. Whether the period of limitation is to be counted from the date of the Magistrate's order or from the date of the order of the Sessions Judge or District Magistrate? 2. Whether the period spent in prosecuting an application in revision before the Sessions Judge or District Magistrate can be excluded in computing the period of limitation? 3. Whether the High Court can interfere with the Magistrate's order in exercise of its wide power under Sec. 439 of the Code, even though incorrectness, illegality or impropriety is brought to its notice after the expiry of ninety days prescribed for an application in revision by a private party?
Ratio Decidendi: 1. The order sought to be revised, as contemplated by Article 181 of the new Limitation Act, is the order of the Magistrate under Sec.146 of the Criminal Procedure Code--not the order of the Sessions Judge or District Magistrate refusing to make a report under Sec. 438--and, therefore, an application in revision must be filed before the High Court within ninety days from the date of the Magistrates order, excluding, of course, the time taken in obtaining relevant copies. 2. The period spent in prosecuting an application in revision before the Sessions Judge or District Magistrate cannot be excluded in computing the said period of ninety days, until Sec.14 of the Limitation Act is suitably amended by the Parliament. 3. Even though the statutory period of limitation in respect of an application in revision has expired, the High Court may in exceptional circumstances interfere with the Magistrates order in exercise of its wide power under Sec. 439 of the Code; and this power will be exercised not on account of a partys application but suo motu on the ground that the Court feels that an illegal or improper order of the Magistrate has resulted in injustice.
Final Decision: In Criminal Revision 906 of 1965, the impugned order of the Magistrate was modified by declaring the possession of the petitioner over a nala in a portion of plot No. 1110. In Criminal revision No. 1343 of 1965, the delay in filing the application in revision was condoned and the application was dismissed on merits.
Ramratna Singh, J.
1. Both these applications, which are directed against orders under Sec.145 of the Criminal Procedure Code, were heard together, as common questions of law arise therein. These questions appear in the following observations of a learned Single Judge of this Court white referring Criminal Revision No. 1343 to a Division Bench:
"Article 131 of the new Limitation Act, which came into force on the 1st January, 1964, lays down that the period for an application to any Court for the exercise of its powers of revision under the Code of Criminal Procedure is 90 days from the date of the decree or sentence sought to be revised. A point has been raised that this period of 90 days will begin to run from the date of the order of the Sessions Judge refusing to make a reference to the High Court in his revisional jurisdiction. A Bench decision of this Court in Sahdev Mandal V/s. Honga Murmu. Cr. No. 1018 of 1965, D/-13-9-1966 : (AIR 1967 Pat. 223) has observed that the period of limitation could not be counted from the date of the order of the Sessions Judge refusing to make a reference to the High Court. That observation, however, is obiter, because in that ease few point was not required to he decided.
Another point that has been raised is that, according to the long standing practice of this Court, the petitioner had to go to the Sessions Judge for making a reference to the High Court and was not allowed to come direct to this Court. The unreported decision of this Court, referred to above, has laid down that it is not necessary to go to the Sessions Judge for making a reference to the High Court. That decision, however, was given on a question being raised as to whether a criminal revision application filed direct in this Court can be maintained. The question as to what would happen if a litigant has gone first to the Sessions Judge, according to the long standing practice of this Court, was not for consideration in this case.
Mr. Jaleshwar Prasad, appearing for the petitioner, has submitted that there are a good number of cases which had been filed, according to the long standing practice of this Court but now would he barred by time on account of Article 131 of the Limitation Act. He has, therefore, prayed that this case should be referred to a Division Bench for an authoritative decision on the point whether this Court can interfere with an order, in its revisional jurisdiction, if there is any merit in the case even though the application is barred by time according to Article 131 of the Limitation Act. "
Criminal Revision No. 906 was referred to a division bench for hearing along with Criminal Revision No 1343.
2 In the aforesaid unreported decision in Cri. Rev No. 1018 of 1965 (Pat.) decided by myself and Anwar Ahmad, J. on the 13th September, 1966 (AIR 1967 Pat. 223) the petitioners had come directly to this Court, without following the usual practice of going to the Sessions Judge in the first instance, and the question then raised was whether their application in revision could be entertained, particularly in view of a decision of Mahapatra J. in Abdul Sayeed Khan V/s. Jagarnath Nonia, 1965 B.L.J.R. 427. In that case the petitioners had made an application in the first instance before the court of Sessions before the new Limitation Act commenced its operation. That application had been dismissed by the Additional Sessions Judge on the 30th April, 1964, and, thus more than ninety days had expired from the 26th September, 1963, the date of the order of the Subdivisional Magistrate in the proceeding under Sec.145 of the Code of Criminal Procedure, out of which the application in revision arose. Mahapatra, J. found that the impugned order of the Magistrate was neither legal nor correct, and therefore, it could not be sustained. But it was contended for the opposite party that the application in revision to this court was not maintainable, because more than ninety days, which is the period prescribed by Ar
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