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ALLAHABAD HIGH COURT
D. D. SETH, J.
Chitawan and others - Applicants
v.
Mahboob Ilahi, - Opposite Parties.
Criminal Misc. No. 1466 of 1968 in Crl. Ref. No. 210 of 1967
Decided on : 18-12-1968.
CRIMINAL PROCEDURE CODE - Section 561-A - Inherent Powers of High Court - Review of Judgment - Scope and Applicability - Criminal Reference - Revision - Maintainability - Necessary Parties - Findings of Fact - Interference by Revisional Court.
Fact of the Case:
Mahboob Ilahi and others filed an application under Section 145, Criminal Procedure Code, claiming possession of land and huts thereon. The Magistrate ordered attachment and directed parties to file evidence. Chitawan and others filed affidavits claiming possession. The Magistrate found Chitawan and others in possession and released the land in their favor. Mahboob Ilahi alone filed a revision. The Civil and Sessions Judge accepted the revision, set aside the Magistrate's order, and released the land in favor of Mahboob Ilahi. Chitawan and others filed an application under Section 561-A, Criminal Procedure Code, to review the order of the High Court.
Finding of the Court:
1. The High Court has inherent powers under Section 561-A, Criminal Procedure Code, to review its previous judgment in order to secure the ends of justice. 2. A revisional court cannot interfere with the findings of fact recorded by the trial court unless they are perverse or based on no evidence. 3. In a proceeding under Section 145, Criminal Procedure Code, all persons claiming a joint right in the disputed property are necessary parties and must be joined in the revision.
Issues: 1. Whether the High Court has inherent powers to review its previous judgment under Section 561-A, Criminal Procedure Code? 2. Whether a revisional court can interfere with the findings of fact recorded by the trial court? 3. Whether all persons claiming a joint right in the disputed property are necessary parties in a proceeding under Section 145, Criminal Procedure Code?
Ratio Decidendi: 1. Section 561-A, Criminal Procedure Code, empowers the High Court to make such orders as may be necessary to give effect to any order under the Code, to prevent abuse of the process of any court, or otherwise to secure the ends of justice. This inherent power is not limited by any other provision of the Code, including Section 369, which prohibits the alteration or review of a signed judgment. 2. A revisional court cannot interfere with the findings of fact recorded by the trial court unless they are perverse or based on no evidence. In the present case, the Magistrate's finding that Chitawan and others were in possession of the disputed land was based on evidence and was not perverse. Therefore, the Civil and Sessions Judge erred in interfering with this finding. 3. In a proceeding under Section 145, Criminal Procedure Code, all persons claiming a joint right in the disputed property are necessary parties and must be joined in the revision. In the present case, Abdul Aziz, Mohammad Ali, and Sami Ullah, who had jointly filed the application under Section 145, Criminal Procedure Code, with Mahboob Ilahi, were not joined in the revision. Therefore, the revision was not maintainable.
Final Decision: The High Court allowed the application under Section 561-A, Criminal Procedure Code, set aside its previous order accepting the reference, rejected the reference made by the Civil and Sessions Judge, and upheld the order passed by the Magistrate releasing the land in favor of Chitawan and others.
Criminal Misc. Application No. 1466 of 1968 has been filed under Section 561-A, Criminal Procedure Code, by Chitawan and others praying that the application be allowed and Criminal Reference No. 210 of 1967, which has been made to this Court by the learned Civil and Sessions Judge, Allahabad, and which had been accepted by me, by my order dated 5th April, 1968, be re-heard.
2. On 5th April 1968 after hearing the learned counsel for the parties, I had accepted Criminal Reference No. 210 of 1967 made to this Court by the learned Civil and Sessions Judge, Allahabad and had set aside the order of the learned Sub-Divisional Magistrate, Phulpur, dated 31st December, 1966, releasing the land in dispute in favour of Chitawan and others and ordered the property to be released in favour of Mahboob Ilahi. Criminal Misc. Application No. 1466 of 1968 made under the provisions of S.561-A, Criminal Procedure Code, was filed in this Court on 15th April, 1968.
3. The facts of Criminal Reference No. 210 of 1967 were that Mahboob Ilahi and some other persons had filed an application under Section 145, Criminal Procedure Code, in the Court of the learned Sub-Divisional Magistrate, Phulpur stating they were in possession of the land in dispute along with seven Neem trees and two huts standing thereon and since Chitawan and others were trying to interfere with their possession there was an apprehension of breach of peace. The learned Sub-Divisional Magistrate had called for a report from the police authorities and the Station Officer of Phulphur, on 8th September, 1966, reported that there was an apprehension of breach of peace between the parties on account of the dispute regarding the land. On getting the police report the learned Sub-Divisional Magistrate passed a preliminary order under Section 145, Criminal P.C., on 12th September, 1966 and the land in dispute was attached on 26th September, 1966. The learned Magistrate also directed the parties to file their written statements, affidavits and such other evidence in support of this respective cases as they deemed necessary.
4. Accordingly the parties filed their written statements. On behalf of Mahboob Ilahi affidavits of Mahboob Ilahi, Murli Dhar, Bihari Lal, Abdul Majeed, Bafati and Anurudh Narain Singh were filed and on behalf of Chitawan and others affidavits of Chitawan, Mohammad Abbas, Dost Mohammad and Baij Nath were filed. Mahboob Ilahi and others filed two documents also in support of their case.
5. The learned Sub-Divisional Magistrate, after hearing the parties and, after considering the oral and documentary evidence on record, came to the conclusion that Chitawan and others were in possession of the land in dispute on the date of the preliminary order and two months prior to it. He, therefore, ordered the land to be released in favour of Chitawan and others and forbade Mahboob Ilahi and others from interfering with the possession of Chitawan etc. till they were otherwise evicted in due course of law.
6. Against the order of the learned Magistrate Mahboob Ilahi alone preferred a revision which was heard by the learned Civil and Sessions Judge, Allahabad, who made the reference on 1st June, 1967 recommending to this Court that the order passed by the learned Sub-Divisional Magistrate releasing the land in dispute in favour of Chitawan and others be set aside and that the land be released in favour of Mahboob Ilahi.
7. As already stated above, the reference came up for hearing before me on 5th April, 1968, when, after hearing the learned counsel for the parties and after going through the orders passed by the Courts below and through the record of the case, I accepted the reference and set aside the order passed by the learned Sub-Divisional Magistrate on 31st December, 1966 and ordered the land to be released in favour of Mahboob Ilahi.
8. Thereafter the application under Section 561-A, Criminal P.C., was filed praying that my order dated 5th April, 1968, accepting the reference, be se
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