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[High Court Dhaka]
Criminal Revision No. 574 of 1969, decided on 16th June 1970.
S. 522‑Restoration of possession of immovable property‑Review of order‑Session Judge cancelling his own order previously passed under S. 522 No provision in Code empowering a criminal Court to review or cancel its own previous order‑Order, held, illegal and not sustain able in circumstances.
Lal Mid v. Anmedullah Mia and another P L D 1960 Dacca 23 rel.
S. 522‑Resto ration of possession of immovable‑ property--Neither trial Court nor appellate Court finding accused to have' dispossessed complainant from premises in dispute by "criminal force or show of force or by criminal intimidation"‑Appellate Court while dismis sing appeal against conviction under S. 448, Penal Code passing no order in accordance with provisions of S. 522, Criminal Procedure Cede‑‑Appellate Court, however, on application made by complainant after disposal of appeal, ordering restoration of possession of property under S. 522, Criminal Procedure Code‑Court having become functus officio, held, had no jurisdiction to entertain such application‑Even otherwise complainant not found to have been evicted by criminal force or show of force or criminal intimi dation‑No order under S. 522 could be passed in law.
Basiruddin Mia, v. Madhu Lal Somani P L D 1961 Dacca 648 rel.
Lal Mia. V. Ahmedullah Mia and another P L D 1960 Dacca 23 distinguished.
M. A. Jalil for Petitioner.
P. C. Bose with S. C. Das for the Opposite‑Party No. 1.
Dates of hearing : 8th arid 11th June 1970.
This Rule is directed against an order dated 4‑8‑69 passed by Mr. A. H. Chowdhury, Additional Sessions Judge, Dacca reversing his earlier order dated 22‑7-69 directing restoration of possession of but to the petitioner:
The relevant facts are that following upon F. I. R. lodged by the petitioner, accused‑opposite‑parties were put on trial and were charged under section 379, P. P: C. as well as 448, P. P. C. Two of the petitioners were also charged under section 323, P. P. C. The trying Magistrate passed Judgment. on 12‑8‑68 convicting the accused persons under section 448, P. P. C. and sentencing them to pay fine of Rs. 51 each, in default to rigorous imprisonment for one month each: The charge under section 379, P. P. C. against all the accused and under section 323, P. P. C. against two of the accused were found to have been not proved and the accused were acquitted of the said charges. On 27‑8‑68 the petitioner filed an application before the trying Magistrate for an order under sec tion 522, Cr. P. C, restoring possession of the but in question to him, whereupon an order was passed on the margin of the said petition for putting up the same after the expiry of appeal period. In the meantime, the trying Magistrate Mr. Nur Mohammad was transferred from the station and an appeal was duly filed before the Sessions Judge of Dacca. The said appeal was dismissed by Mr. A. H. Chowdhury, Additional Sessions Judge, Dacca on 1.6‑5‑69 and the conviction and sentence passed against the opposite parties were upheld. The petitioner filed a petition in the Court of Mr. M. A: Hashem, Magistrate, 1st Class, Munshiganj on 10‑6‑69 renewing his prayer. for restoring possession of the but to him. An, objeotion petition against‑the aforesaid prayer was filed in the Court of Mr. 1VI. A. Hashem by accused Tofazzal Hossain Khan and the said Magistrate passed an order in the margin of the objection petition saying that he had nothing to do with the petition under section 522, Cr. P. C. as the case had been disposed of by Mr. Nur Mohammad and sent the petition to S. D. O. for necessary orders. The S. D. O. recorded an order on 7‑7‑69 in the order‑sheet stating that no action under section 522 could be taken by .his Court as the complainant did not obtain an order under section 522, Ct. P. C. from the appellate Court. On 19‑7‑69 a petition was filed in the 1st Court of Additional Sessions Judge, Dacca by the present petitioner praying for an order directing eviction of the trespasser under section 522, Cr. P. C. and on 22‑7‑69 Mr. A. H. Chowdhury, Additional Sessions Judge, 1st Court, Dacca passed the following order:
"Petition filed by Sachindra Chandra Das praying for directing eviction of the trespassers from the but and restoration of possession is put up. Heard. The prayer is allowed. The learned trial Court shall take action in the matter after serving notice on the other side."
Against the aforesaid order an objection petition was filed in the Court of the said Additional Sessions Judge by accused Tofazzal Hossain Khan on 29‑7‑69 and on hearing both the parties the following order was passed on 4‑8‑69:
"4‑8‑69. Heard both the parties at length. It appears from the record that no application under section 522, Cr. P. C. was filed before this Court during the pendency of the appeal. It further appears that no application was filed even within one month from disposal of the appeal. Therefore, this Court has no jurisdiction, to entertain an application under section 522, Cr. P. C. at this stage. I am justified in this view of mine, by decision reported in A I R 1947 p. 391 and P L D 1961 Dacca 648. Hence, the order No. 17 dated 22‑7‑69 be vacated and the application under section 522, Cr. P. C. be rejected."
Mr. M. A. Jalil appearing on behalf of the petitioner firstly contended that the learned Additional Sessions Judge exercised his jurisdiction illegally on 4‑8‑69 by reversing his earlier order dated 22‑7‑69. It was secondly contended that the appellate Court was not debarred from passing an order under section 522, Cr. P. C. even after the expiry of the period of one month, mentioned under subsection (1) of the said section and in that view of the matter the learned Additional Sessions Judge who had disposed of the appeal had jurisdiction to pass the order of restoration of posses sion and in this connection he has referred to a decision of this Court in the case of Lal Mia v. Ahmedullah Mia and another (P L D 1960 Dacca 23). Mr. P. C. Bose appearing on behalf of the opposite‑party, on the other hand, contended that Mr. A. H. Choudhury who had disposed of the appeal on 16‑5‑69 became functus officio and had no jurisdiction to pass an order under section 522 on 22‑7‑69 and that being so, the order dated 4‑8‑69, reversing the earlier illegal order cannot be said to be bad in law. Mr. P. C. Bose has further contended that in the absence of any finding by any Court that the petitioner was evicted from the but in question by the accused‑opposite‑parties by criminal force or show of force or by criminal intimidation, no order under section 522, Cr. P. C. could be passed in this case either by the trial Court or by the appellate Court.
It will appear that the order dated 4‑8‑69 virtually cancelled the order dated 22‑7‑69 which was previously passed under section 522 of the Code of Criminal Procedure. There is no provision in the Code of Criminal Procedure expressly empowering a criminal Court to review or cancel an order passed by the said Court and in the absence of any such provision, such power must be presumed not to exist. In this view of the matter it is evident that the order dated 4‑8‑69 passed by Mr. A. H. Chowdhury reversing his own previous order dated 22‑7‑69 was illegal and cannot be sustained.
The next question that arises for consideration is whether the order dated 22‑7‑69 can be sustained. The answer to this question depends upon whether Mr. A. H. Chowdhury had any jurisdiction to pass any order on 22‑7‑69 and, if. so, whether, in the facts and circumstances of this case, an order under section 522, Cr. P. C. could be passed by him. Before I try. to answer the questions posed by me, I think I should re‑produce section 522, Cr. P. C. which is as follows:‑
"522.‑‑(1) Whenever a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation and it appears to the Court that by such force or show of force or criminal intimidation any person has been dispossessed of any immovable property, the Court may, if it thinks fit, when convicting such person or at any time within one month from the date of the conviction order the person dispossessed to be restored to the possession of the same.
(2) No such order shall prejudice any right or interest to or in such immovable property which any person may be able to establish in a civil suit.
(3) An order under this section may be made by any Court of appeal, confirmation, reference or revision,"
It may be noted that an order under section 522, Cr. P. C. can be passed by "any Court of appeal, confirmation, reference or revision". In this case Mr. A. H. Choudhury while dismissing the appeal against conviction of the accused persons under sec tion 448, P. P. C. did not pass any order in accordance with the provision of section 522, Cr. P. C. After the appeal was disposed of, he became functus officio and as such he had no jurisdiction to entertain the application of the petitioner for an order under section 522, Cr. P. C. Reference in this connection may be made to the decision of this Court in the case of Basiruddin Mia v. Madhu Lal Somani (P L D 1961 Dacca 648).
It farther appears that an order for restoration of possession contemplated under subsection (1) of section 522, Cr. P. C. can be passed if the dispossession from any immovable property is effected by "criminal force or shoe of force or by criminal intimidation". In the instant case, the learned Additional Sessions Judge while disposing of the appeal of the accused‑opposite‑parties stated that "the learned Magistrate, on a careful consideration of the facts and evidence on record overruled the defence contention and held that the appellants committed house trespass by entering into and remaining illegally it, the dwelling but which was in possession of the P. W. 1". The Additional Sessions Judge himself came to the following finding:
"It was proved by all the witnesses that the complainant was in possession of the but from long before and the accused trespassed into the but and remained there after ousting the complainant and his wife."
It is, therefore, evident that neither the trial Court nor the appellate Court found that the accused‑opposite‑parties evicted the petitioner from the but in question by "criminal force or show of force or by criminal intimidation" and in consequence no order under section 522, Cr. P. C. could be passed by the learned Additional Sessions Judge. The decision in the case of Lal Mia v. Ahmedullah Mia and another relied on by Mr. M. A. Jalil does not help the petitioner. The case related to dispossession of the complainant "forcibly". The learned Magistrate passed an order under section 522, Cr. P. C. more than two months after the date of conviction of the accused and it was held that if the Magistrate could not pass an order, this Court as a Court of reference and revision is competent to pass an, order under section 522 (3), Cr. P. C. and, in the circumstances, the order of the Magistrate was maintained. The order of the learned Additional Sessions Judge dated 22‑7‑69, in this case, cannot be maintained, as it was not based upon any finding that the petitioner was dispossessed from the but with force. In the circumstances, neither the order dated 4‑8‑69 nor that dated 22‑7‑69 can be sustained. Both the orders are, therefore, set aside and the Rule is disposed of accordingly.
Rule disposed of accordingly.
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