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CODE OF CRIMINAL PROCEDURE, 1973: s. 145(6) – Application for implementation of order passed u/ 145(4) – Period of limitation – HELD: Article 137 of Limitation Act, being the residuary provision, would be applicable and since the application was filed beyond three years, High Court rightly held the same as barred by limitation – s.6 of Specific Relief Act has no application to proceedings u/s 145 of the Code – Limitation Act, 1963 – Schedule – Article 137 – Specific Relief Act, 1963 – s.6. ss. 397(3) and 482 – Power of High Court to set aside order of revisional court – HELD: Doors of High Court to a litigant who lost before Sessions Judge in revision are not completely closed and in special cases bar u/s 397(3) can be lifted – Power of High Court u/s 482 is not subject to prohibition u/s 397(3). On an application filed u/s 145 of the Code of Criminal Procedure, 1973 by the predecessor-in-interest of the appellants stating that he was dispossessed by respondent no.1 from the lands in dispute within two months of the application, the Executive Magistrate, by his order dated 7.10.1994, declared possession of the appellants over the suit land. On 12.11.1997 the appellants filed another application for restoration of possession in pursuance of the order dated 7.10.1994. The Magistrate directed restoration of possession in favour of the appellants. The criminal revision filed by respondent no.1 was dismissed by the Additional Sessions Judge. On a petition by respondent no. 1, the single Judge of the High Court set aside the orders of the courts below. It was contended for the appellants that having regard to the specific provisions of Sub-section (3) of s. 397 of the Code, the petition before the High Court was not maintainable; that the High Court misinterpretd the provisions of the Specific Relief Act, 1963 and the Limitation Act, 1963 and erred in holding the application filed by the appellants u/s 145 (6) of the Code as barred by limitation.

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 1

 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO.258 OF 2009 (Arising out of SLP(Crl.)No.1624 of 2007)

Shakuntala Devi & Ors. ...Appellants

 Vs.

Chamru Mahto & Anr. ...Respondents

 J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. This appeal arises out of the order passed by

the Patna High Court on 5.1.2007 quashing the order

dated 6.1.2006 passed by the Additional Sessions

Judge-cum-Fast Track Court No.5, Khagaria, in

Criminal Revision No.74/2003, confirming the order

dated 2.5.2003 passed by the Sub-Divisional 2

Magistrate, Khagaria, in Misc. Case No.20(M)2/97

directing restoration of possession of the land in

dispute to the respondent herein.

3. The predecessor-in-interest of the appellants

herein, one Dayanand Prasad, filed an application

under Section 145 of the Code of Criminal Procedure,

1973 (hereinafter referred to as `the Code') being

Case No.455(M)/86, inter alia, for restoration of

possession in plot No.3580 under Khata No.725

measuring 14 katha 4 dhurs on the ground that he had

been forcibly dispossessed therefrom by the

Respondent No.1 herein within two months of such

petition being filed.

4. Both the parties in the said proceeding filed

their respective responses showing cause and adduced

evidence, whereupon the Executive Magistrate by his

order dated 7.10.1994 declared the possession of the

appellants over the land in dispute. The learned

Magistrate, while passing his order on 7.10.1994 3

under Section 145(4) of the Code, declared as

follows :-

 "......Therefore, on careful apprecia- tion of the evidence adduced by the witnesses of both the parties and on perusal of the papers produced by both the sides, I have reached the conclusion that the facts stated by the First Party are true and, therefore, possession of the First Party since before the dispute is hereby declared. It is further declared that the first party is entitled to the possession over the disputed land until evicted in due course of law."

 (Emphasis supplied)

5. The original petitioner Dayanand Prasad, the

husband of the Appellant No.1 and the father of the

Appellant Nos.2 and 3, expired in 1995. In

November, 1997, the appellants herein filed Misc.

Case No.20(M)2/97 before the Sub-Divisional

Magistrate, Khagaria, for restoration of possession

in pursuance of the order of the Executive

Magistrate under Section 145(4) of the Code on

7.10.1994. Allowing the said Misc. Case the Sub-

Divisional Magistrate, Khagaria, passed an order 4

under Section 145(6) of the Code on 2.5.2003

directing restoration of possession of the lands in

question in favour of the appellants herein.

6. On 26th May, 2003, the respondent filed Criminal

Revision No.74 before the learned Sessions Judge,

Khagaria questioning the order passed by the Sub-

Divisional Magistrate on 2.5.2003 under Section 145

(6) of the Code. The Additional Sessions Judge-

cum-F.T.C.No.5, Khagaria, dismissed the Criminal

Revision and confirmed the order of the Sub-

Divisional Magistrate, Khagaria. Against the said

order of the Additional Sessions Judge, the

respondent filed Criminal Misc. Case No.15309/2005

before the Patna High Court, which allowed the said

Misc. Case and set aside the orders passed by the

Sub-Divisional Magistrate and the Sessions Judge,

Khagaria. The said order of the Single Judge of the

Patna High Court dated 05.01.2007 is the subject

matter of challenge in the instant appeal. 5

7. Appearing in support of the appeal, Mr. S.B.

Sanyal, learned Senior Advocate, firstly contended

that having regard to the specific provisions of

Sub-section (3) of Section 397 of the Code, the

revisional application before the Patna High Court

at the instance of the respondent was not

maintainable. Mr. Sanyal urged that the High Court

had exercised its jurisdiction erroneously in

entertaining a second revision, which was barred

under Sub-section (3) of Section 397 of the Code, in

purported exercise of its inherent powers under

Section 482 of the Code.

8. In support of his submission, Mr. Sanyal

referred to the decision of this Court in Rajathi

vs. C. Ganesan [(1999) 6 SCC 326]. The said

decision was rendered in connection with

proceedings under Section 125 of the Code. The said

petition having been allowed, the husband went in

revision to the Court of Sessions, which dismissed

the revision and confirmed the order of the

Magistrate. The husband then filed a petition under 6

Section 482 of the Code in the High Court, which was

allowed by a learned Single Judge who, by his

impugned order, set aside the orders passed by the

Judicial Magistrate and the Sessions Judge and

dismissed the wife's claim for maintenance. The

matter having been brought to this Court, by way of

Special Leave this Court held that the High Court

had erroneously exercised its powers under Section

482 of the Code which powers were not a substitute

for a second revision under Sub-section (3) of

Section 397 of the Code. This Court also went on to

observe that the very fact that the inherent powers

conferred on the High Court are vast would mean that

these are circumscribed and could be invoked only on

certain set principles.

9. In addition to the above, Mr. Sanyal also relied

on the decision of a Three Judge Bench of this Court

in Krishnan & Anr. vs. Krishnaveni & Anr. [(1997) 4

SCC 241], wherein this Court had held that having

regard to the provisions of Section 397(3) of the

Code, a second revision before the High Court after 7

dismissal of the first one by the Court of Sessions

is barred. While holding as above, this Court also

observed that despite the said bar, the inherent

power of the High Court under Section 482 of the

Code was still available but such power had to be

exercised sparingly so as to avoid needless

multiplicity of procedure, unnecessary delay in

trial and protraction of proceedings. In fact, the

sentiment expressed in this decision was also

referred and relied upon by this Court in later

decisions referred hereinabove.

10. Mr. Sanyal then submitted that the High Court

had erroneously proceeded to consider matters which

were of no relevance to the facts at issue in the

instant case. He urged that on a completely

incorrect interpretation of the provisions of the

Specific Relief Act and the Limitation Act the High

Court had proceeded to allow the respondent's

application for quashing of the order passed by the

Additional Sessions Judge, Khagaria, on 6.1.2006.

Mr. Sanyal urged that Section 4 of the Specific 8

Relief Act makes it quite clear that the provisions

of the Act would be available only with regard to

civil matters and not to criminal proceedings. He

urged that by misapplying the provisions of the

Specific Relief Act, the High Court relied on

Section 6 thereof, which specifies a period of six

months within which a person wrongfully dispossessed

could file a suit for restoration of possession

which was to be disposed of in a summary manner.

The High Court also took note of the submissions

made on behalf of the respondent that if regard was

to be had to Article 137 of the Limitation Act, the

period of limitation to enforce an order of the

Court would be three years and since the application

for enforcement of the Magistrate's order dated

7.10.1994 had been filed on 12.11.1997 after a lapse

of three years, the proceedings and the order of the

learned Magistrate were without jurisdiction.

11. Mr. Sanyal submitted that neither the provisions

of the Specific Relief Act nor the provisions of the

Limitation Act had any application to the facts of 9

this case and that the case of the appellants would

be governed by the provisions of the Code itself and

nowhere under Section 145(4) or 145(6) has any

period been prescribed for enforcing an order passed

under Section 145(4) of the Code. According to Mr.

Sanyal, the provision of Section 145(4) of the Code

does not indicate or provide that an order for

restoration of possession has to be included in the

order under Section 145(4) itself. It was submitted

that the same could be passed under Section 145(6)

of the Code after the declaration had been made

under Section 145(4). Mr. Sanyal urged that after

the passing of the order under Section 145(4) of the

Code the appellants made several attempts to have

the matter settled amicably and ultimately, when all

efforts towards that end failed, the appellants were

compelled to apply to the Executive Magistrate to

pass an order under Section 145(6) directing

restoration of possession in favour of the

appellants. Since, according to Mr. Sanyal, the

provisions of the Limitation Act would not have any

application to the case of the appellants, the bar 10

of three years prescribed therein would not be of

any avail to the respondent and the High Court had

proceeded erroneously in holding otherwise.

12. In support of his said submissions, Mr. Sanyal

firstly referred to a Division Bench decision of the

Calcutta High Court in Khudiram Mandal vs. Jitendra

Nath & Anr. [AIR 1952 Calcutta 713], wherein, while

considering a similar situation in a proceeding

under Section 145 of the Code, the High Court held

that if, in a case the Magistrate declares a person

to be entitled to possession he was also entitled to

restore possession to the party, and it was not

necessary that he had to do so by one and the same

order and it was open to him to pass another order

for restoration of possession on a subsequent date.

It was further observed in the concurring judgment

of Sinha, J., as follows :

 "In the second case, it is quite apparent that a further relief may be necessary. Merely declaring the right of a party to possess might not bring him actual possession and an order restraining the other parties from 11

 disturbing his possession would be meaningless unless he is restored to such possession. It is because of this that the amendment of 1923 gave power to the Magistrate to restore possession. On the other hand, a party may be content with an order for a declaration and an injunction because the other party might give up possession without further trouble or is driven to institute a suit, or for a variety of reasons upon which we need not speculate. But I find nothing in S.145(6) which makes it mandatory that an order for restoration of possession should form an integral part of the original order and be passed at one and the same time as the original order. The final order would be in the form given in Sch.V (Form 22) and later on, when a party is unable to get possession, he can apply to the Court to act under the last part of sub-s.(6) and restore possession to him. It is somewhat of an auxiliary order and if an analogy is permitted in the nature of execution."

13. Mr. Sanyal concluded on the note that since no

special circumstances had been indicated in the

impugned order of the High Court, which necessitated

the invocation of its powers under Section 482 of

the Code, assumption of jurisdiction thereunder,

despite the bar imposed under Section 397(3) of the

Code, was without jurisdiction and vitiated the 12

order passed by it. Furthermore, even the

parameters within which the High Court had proceeded

to allow the application under Section 482 of the

Code, was wholly misconceived and the judgment of

the High Court could not, therefore, be sustained.

14. Mr. Sanyal's submissions were strongly opposed

by Mr. Narendra Kumar, learned Advocate appearing

for the respondent. He submitted that the very

assumption of jurisdiction by the Executive

Magistrate under Section 145 of the Code was

erroneous since the order does not record that there

was any apprehension of breach of the peace to

invoke the provisions of Section 145 Cr.P.C. He

pointed out that a dispute of a civil nature,

without any likelihood of causing a breach of the

peace could not give rise to an order under Section

145 Cr.P.C. In fact, likelihood of a breach of the

peace is the sine qua non for invocation of

jurisdiction under Section 145(1) of the Code and in

the absence of such apprehension, the appellants

would have to take recourse to a civil action and 13

not approach the Magistrate by way of proceedings

under Section 145 of the Code. In this connection,

he also submitted that without any positive finding

by the Magistrate to the effect that the first party

had been forcibly and wrongfully dispossessed within

two months next before the date on which the report

of a police officer or other information was

received by the Magistrate, the Magistrate could not

have passed an order declaring the first party to be

entitled to possession of the property in question

until evicted therefrom in due course of law under

Sub-section (6) of Section 145 of the Code. He

submitted that such an order ought not to have been

made by the Magistrate after a lapse of three years

from the date of the original order under Sub-

section (4) of Section 145 of the Code declaring the

first party to be in possession. In fact, he also

submitted that the Magistrate had become functus

officio and had no jurisdiction to pass the impugned

order. 14

15. Mr. Narendra Kumar submitted that the respondent

had been in continuous possession of the disputed

property since long before the initiation of the

proceedings under Section 145, which would also be

evident from the petition of the appellants herein.

He pointed out that in the appeal it had been

admitted that the respondent had been constructing a

house and was also living on the land.

16. He then submitted that the decision in

Dayanand's case (supra) relied upon by Mr. Sanyal

had, in fact, been overruled in Krishnan's case

(supra) and hence, reliance upon the judgment in

Dayanand's case could not be supported. Mr.

Narendra Kumar urged that while considering its

earlier decision in Dayanand's case, this Court in

the latter case of Krishnan (supra) had also

observed that despite the bar of Section 397(3) of

the Code, the relief contemplated under Section 482

was still available, though it was required to be

exercised sparingly. Mr. Narendra Kumar submitted

that the High Court had rightly exercised its 15

jurisdiction under Section 482 of the Code in order

to do complete justice between the parties.

17. We have carefully considered the submissions

made on behalf of the respective parties and we see

no reason to take a stand which is different from

the stand that was taken both in Dayanand's case

(supra) and Krishnan's case(supra). It is well

settled that the object of the introduction of Sub-

section (3) in Section 397 was to prevent a second

revision so as to avoid frivolous litigation, but,

at the same time, the doors to the High Court to a

litigant who had lost before the Sessions Judge was

not completely closed and in special cases the bar

under Section 397(3) could be lifted. In other

words, the power of the High Court to entertain a

petition under Section 482, was not subject to the

prohibition under Sub-section (3) of Section 397 of

the Code, and was capable of being invoked in

appropriate cases. Mr. Sanyal's contention that

there was a complete bar under Section 397(3) of the

Code debarring the High Court from entertaining an 16

application under Section 482 thereof does not,

therefore, commend itself to us.

18. On the factual aspect, the Magistrate came to a

finding that the appellants were entitled to

possession of the disputed plot. It is true that

while making such declaration under Section 145(4)

of the Code, the Magistrate could have also directed

that the appellants be put in possession of the

same. The question which is now required to be

considered is whether the High Court was right in

quashing the order passed by the Magistrate, which

was confirmed by the Sessions Judge, on the ground

that the application made by the appellants under

Section 145(6) of the Code was barred firstly by

limitation under Article 137 of the Limitation Act

and also by virtue of Section 6 of the Specific

Relief Act, 1963. We are in agreement with Mr.

Sanyal that the provisions of the Specific Relief

Act had been misapplied by the High Court in holding

that the appellants should have come for an order

under Section 145(6) of the Code within six months 17

from the date of dispossession, as provided in

Section 6 of the said Act, as the Specific Relief

Act has no application to a proceeding under Section

145 Cr.P.C.

19. But the High Court has, however, taken a correct

view with regard to the application of Article 137

of the Limitation Act to the facts of this case.

The said Article is a Residuary provision which

provides for a limitation of three years within

which an order passed on any application for which

no period with regard to limitation is provided

elsewhere in the Third Division relating to

application, can be challenged. However, under

Section 145 of the Code, whenever an Executive

Magistrate is satisfied from a report of a police

officer or upon other information that a dispute

likely to cause a breach of the peace exists

concerning any land or water or the boundaries

thereof, within his local jurisdiction, he shall

make an order in writing, stating the grounds of his

being so satisfied, and requiring the parties 18

concerned in such dispute to attend his Court for

the purpose of settling their respective claims as

regards the fact of actual possession of the subject

of dispute. Sub-section (4) of Section 145 provides

that the Magistrate shall then, without reference to

the merits or the claims of any of the parties, to a

right to possess the subject matter of dispute,

after perusing the statements and hearing the

parties and receiving such evidence as may be

produced, take such further evidence, if he thinks

necessary, and, if possible, decide whether and

which of the parties was, at the date of order made

by him under sub-section (1), in possession of the

subject matter of dispute. The proviso to sub-

section (4) provides that if it appears to the

Magistrate that any party had been forcibly and

wrongfully dispossessed within two months next

before the date on which the report of a police

officer or other information was received by him or

after that date and before the date of his order

under sub-section (1), he may treat the party so

dispossessed as if that party had been in possession 19

on the date of his order under sub-section (1). Sub-

section (6) empowers the Magistrate upon arriving at

a decision that one of the parties is or should be

treated as being, in such possession of the subject

of the dispute, to issue an order declaring such

party to be entitled to possession thereof until

evicted therefrom in due course of law, and when he

proceeds under the proviso to sub-section (4), he

may restore to possession the party forcibly and

wrongfully dispossessed.

20. According to the respondents, the provisions of

Article 137 of the Limitation Act became applicable

when without implementing the provisions of sub-

section (4) of Section 145 immediately after it was

made, the appellants had filed the application for

possession of the disputed plot to be made over to

them after a lapse of three years, while the period

of limitation under Article 137 of the Limitation

Act is three years. The High Court was persuaded by

the said submission and accordingly allowed the

criminal miscellaneous application filed by the 20

respondents herein upon holding that restoration of

possession had been ordered after expiry of three

years which was not permissible in view of Article

137 of the Limitation Act.

21. There is no doubt that the High Court erred in

applying the provisions of the Specific Relief Act

to a proceeding under Section 145 Cr.P.C., but as

far as making an application for implementation of

the order passed under Section 145(4) Cr.P.C. is

concerned, since no period of limitation is

prescribed, the same ought to have been filed within

a period of three years from the date of the order.

While the final order in the proceedings under

Section 145 Cr.P.C. was passed on 7th October, 1994,

the application for implementation of the same was

made on 12th November, 1997, which was beyond the

period of limitation prescribed under the provisions

of Article 137 of the Limitation Act.

22. The decision cited by Mr. Sanyal does not come

to his aid since there is no confusion on the point 21

that an application under Section 145(6) may be made

to be put in possession of a property in respect of

which the party has been declared to be entitled to

possession. Such an application cannot be made as

and when the person dispossessed chooses to do so.

It is for such purpose that Article 137 has been

pressed into service since no limitation has been

prescribed in Section 145 itself to indicate as to

within which time a party found to be entitled to

possession could be put back in possession. There

is also no explanation forthcoming as to the cause

of such delay. Accordingly, even if the High Court

was wrong in applying the provisions of the Specific

Relief Act to the facts of the case, the bar under

Article 137 of the Limitation Act cannot be avoided

and the application made by the appellants for being

restored to possession in terms of a declaration

made more than three years before the making of the

application has to be rejected.

23. In that view of the matter, the appeal is

dismissed. 22

 ________________J. (ALTAMAS KABIR) ________________J. (CYRIAC JOSEPH)New DelhiDated: 10.2.2009
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