Sahebjan and Others Vs Emperor

@JUDGMENTTAG-ORDER

Varma, J.@mdashThis is an application against an order passed by a Magistrate u/s 522, Criminal P.C., restoring possession to the opposite party, after the conviction of the petitioners u/s 448, Penal code. The original convictions were under Sections. 143 and 448, Penal Code, against five persons two of whom were acquitted, with the result that the charge u/s 143 failed in the absence of proof that five or more than five persons were engaged in the crime, but the conviction u/s 448 was upheld by the Appellate Court, from whose judgment it is clear that the present petitioners managed to turn out the complainant after beating her. Now, the trial Court judgment was delivered on 20th July 1939, and on a petition by the complainant the present petitioners were asked on 22nd July 1939, to show cause why the house should not be restored to the complainant''s possession, but by the time cause was shown, the Magistrate who had convicted the petitioners had ceased to be a Magistrate and therefore they showed cause before the Sub. divisional Magistrate of Dinapore on 3rd August 1939.

2. In the meantime the petitioners had gone up in appeal and the judgment of the Appellate Court is dated 22nd August 1939, by which the conviction of the present petitioners was upheld u/s 448. Cause was more fully shown on 28th August 1939, before the Sub divisional Magistrate, and the order complained against presently was passed on 31st August 1939.

Mr. Rajeshwari Prasad, appearing on behalf of the petitioners urges that the order passed on 31st August 1939, was made more than two months after 20th July 1939, on which date the petitioners were convicted by the trial Court, and therefore it is not in order, and for this purpose he refers to the decision in Aswini Kumar Das Vs. Sasanka Mohan Bose, , where an order of this nature was set aside. In the present case the petition was filed before the Honorary Magistrate only two days after the conviction, and it must be noted that the delay in passing the order was not due to any fault on the part of the complainant. In a proper case, the Court of appeal or the Court of revision can pass an order u/s 522, Criminal P.C., if such Court is satisfied that an order of the nature is necessary in the interest of justice.

3. I have gone through the judgments of the Courts below and I have no hesitation in my mind that this was a fit case in which the power u/s 522, Criminal P.C., should have been exercised. Even if there be any defect in the order of the Magistrate who had passed it, I would make that order following the procedure in Rameshwar Singh Emperor AIR (1925) pat 689, where an order u/s 522, Criminal P.C., was passed by this Court. The rule is discharged.