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1971 Supreme(Ori) 152
IN THE HIGH COURT OF ORISSA
R.N. Misra, J.
PERMATI DORAYA - APPELLANT
Versus
BIBHUTI RANJAN DUBEY AND OTHERS - RESPONDENT
Criminal Revision No. 484 of 1971
Decided On : 14-12-1971
C.V. Murty, for the Appellant; A.K. Padhi, K.C. Mohanty and P.K. Misra, for the Respondent
A stay order becomes effective only with reference to the point of time when the Court whose order is sought to be stayed receives it.
Headnote:
CRIMINAL PROCEDURE CODE, 1898 - SECTION 145, 435, 438 - STAY ORDER - EFFECT - DELIVERY OF POSSESSION - REATTACHMENT - JURISDICTION OF SESSIONS JUDGE.
Fact of the Case:
In a proceeding under Section 145 of the Code of Criminal Procedure, the first party was declared to be in possession of the disputed property. The property was released from attachment and possession was delivered to the first party. However, during the pendency of a revision petition filed by the second party, the Additional District Magistrate (Judicial) passed an order staying the operation of the final order and directed the Magistrate to maintain the status quo as it existed prior to the order directing delivery of possession.
Finding of the Court:
The court held that the learned Sessions Judge exercised a power not vested in him when he directed the maintenance of the status quo as it existed prior to the order directing delivery of possession particularly when possession had been delivered prior to communication of the stay order dated 7-7-1971 passed by the learned Sessions Judge in Criminal Revision No. 42(8) of 1971 must stand vacated and as possession has already been delivered there would be no question of any reattachment.
Issues: Whether the Sessions Judge had the jurisdiction to pass an order of reattachment after possession had been delivered to the successful party.
Ratio Decidendi: A stay order takes effect from the point of time of communication to the court whose order is sought to be stayed. In the present case, possession had been delivered prior to the communication of the stay order to the Magistrate. Therefore, the Magistrate was free to deliver the property as a consequence of his finding recorded on 30-6-1971 in the final order. Once possession had been delivered prior to the communication of the stay order, there was no scope for reattaching the property.
Final Decision: The court quashed the impugned order of the Sessions Judge dated 24-7-1971 and held that there would be no question of any reattachment of the property.
JUDGMENT :
R.N. Misra, J. - The first party in a proceeding u/s 145, Code of Criminal Procedure is the Petitioner. This proceeding u/s 145, Code of Criminal Procedure was initiated by the preliminary order dated 3-5-1969 in respect of 7.40 acres of land appertaining to H.S. plot No. 2173 of village Silet within Atabira P.S. in the district of Samhalpur. During the pendency of the proceeding the property was under attachment. That proceeding terminated in favour of the first party by the final order dated 30-6-1971. On 1-7-1971 the learned Magistrate issued the intimation of such declaration as provided in Form XXII of Schedule V of the Code of Criminal Procedure.
2. In the mean time one of the members of the second party filed a revision before the learned Sessions Judge, Sambalpnr, on 7-7-1971. During the absence of the learned Sessions Judge, the Additional District Magistrate (Judicial) before whom the records were placed, passed the following order on 7-7-1971:
Heard. Stay operation of the order dated 30-6-1971 in Cr. Misc. Case No. 38 of 69/Tr. 68 of 70 in the Court of Shri A.N. Naik, Magistrate First Class (Executive), Bargarh, until further order and put up before Sessions Judge on 19-7-1971. Supply copy as prayed for.
This order of the revisional Court was brought before the learned Magistrate on 8-7-1971. The formal communication from the Court to the Magistrate, however, came later. As it appears, on 8-7-1971 the property was released from attachment at the spot and the successful party was put into possession after the Court's attachment was withdrawn and the property ceased to be custodia legis. By them the usufructs were, however, still with the receiver who was not present at the time of the release was effected and, therefore, the usufructs could not be made over to the successful party.
On 24-7-1971, the learned Sessions Judge passed the following order:
Advocate for the Petitioner files a petition praying that the lands in dispute be reattached and the lower Court be directed to reattach the same. A separate petition is filed to put up the record today. Another petition is also filed to send the copy of reattachment order hand to hand.
Heard. The lower Court made delivery of possession before receipt of the stay order and after passing of the same. He will please withdraw the order of delivery of possession and maintain status quo as it existed prior to the order directing delivery of possession. Copy be handed over to the advocate as prayed for.
3. There is no dispute that the learned Sessions Judge in entertaining the application u/s 435, Code of Criminal Procedure was not entitled to pass any final orders. If ultimately he was satisfied that it was a fit one to be reported to this Court for interference he could make a report containing his recommendations for interference with the final order as provided u/s 435, Code of Criminal Procedure Sub-section (l) of Section 438, Code of Criminal Procedure as amended by Act 39 of 1956 provides as far as relevant thus:
The Sessions Judge...may, if he thinks fit, on examining u/s 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination, and when such report contains a recommendation, that a sentence or on order be reserved or altered, may order that the execution of such sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond.
Objection is raised by Mr. Murty to the nature of the order passed by the learned Sessions Judge. He contended that the learned Sessions Judge bad no powers to direct resettlement of the property after delivery bad been made, and even this Court in revision u/s 439, Code of Criminal Procedure may not have jurisdiction to pass an order of reattachment. It is not necessary to examine that aspect of the matter with reference to the powers of this Court because in the present case what is being impugned is the action of the learned Sessio
