SHAKUNT ALA DEVI & ORS.versusCHAMRU MAHTO & ANR.

                     [2009] 3 S.C.R. 85


               SHAKUNTALA DEVI & ORS.                          A
                             V.
                CHAMRU MAHTO & ANR.
            (Criminal Appeal No. 258 of 2009)
                   FEBRUARY 10, 2009
                                                               B
     [Al TAMAS KABIR AND CYRIAC JOSEPH, JJ.]

    CODE OF CRIMINAL PROCEDURE, 1973:

     s. 145(6) - Application for implementation of order C
passed ul 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
                                                               0
proceedings uls 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    E
completely closed and in special cases bar uls 397(3) can
be lifted - Power of High Court u/s 482 is not subject to
prohibition uls 397(3).

     On an application filed uls 145 of the Code of Criminal   F
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    G
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
                             85                                H
    86        SUPREME COURT REPORTS           (2009] 3 S.C.R.


A 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
8 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
C filed by the appellants u/s 145 (6) of the Code as barred
  by limitation.

         Dismissing the appeal, the Court

        HELD: 1.1. The object of introduction of Sub-section
0
  (3) in s.397 of the Code of Criminal Procedure, 1973 was
  to prevent a second revision so as to avoid frivolous
  litigation, but, at the same time, the doors of the High
  Court to a litigant who had lost before the Sessions
  Judge were not completely closed and in special cases
E the bar u/s 397(3) could be lifted. The power of the High
  Court to ente.rtain a petition u/s 482, was not subject to
  the prohibition under Sub-section (3) of s. 397 of the
  Code, and was capable of being invoked in appropriate
  cases. [Para 17) [95-B-C]
F
        Rajathi v. C. Ganesan (1999) 6 SCC 326 and Krishnan
  & Anr. v. Krishnaveni & Anr. (1997) 4 SCC 241, referred to.

       2.1. The provisions of the Specific Relief Act had
G been misapplied by the High Court in holding that the
  appellants should have come for an order u/s 145(6) of
  the Code within six months from the date of
  dispossession, as provided in s.6 of the Specific Relief
  Act, 1963. The said Act has no application to proceedings
  u/s 145 Cr.P.C. (Para 18) [95-G]
H
         SHAKUNTALA DEVI & ORS. v. CHAMRU MAHTO               87
                         &ANR.

          2.2. So far as making the application for A
     implementation of the order passed u/s 145(4) Cr.P.C. is
     concerned, since no period of limitation is prescribed, the
     same ought to have been filed under the residuary
     provision of Article 137 of the Limitation Act, 1963 within
     a period of three years from the date of the order. There B
     is also no explanation forthcoming as to the cause of the
     delay. Accordingly, even if the High Court was wrong in
     applying the provisions of the Specific Relief Act to the
     facts of the case; it has taken a correct view with regard
     to application of Article 137 of the Limitation Act, (as the c
     bar thereunder) 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 rightly been
     rejected. [Para 21 and 22) [97-E; 98-A-B]                    0
         Khudiram Manda/ v. Jitendra Nath & Anr. AIR 1952
     Calcutta 713, referred to.
                          Case Law Reference:
         (1999) s sec 326           referred to         para 8      E

         (1997) 4 sec 241           referred to         para 9
         AIR 1952 Calcutta 713      referred to         para 12
         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal           F
     No. 258 of 2009.

         From the final Judgment and Order dated 5.1.2007 of the
     High Court of Judicature at Patna in Crl. Misc. No. 15309 of
     2005.
                                                                    G
.j
           S.B. Sanyal, K.D. Prasad, Vishal Prasad and Satish Vig
     for the Appellants.

        Narendra Kumar, V. Balaji, M.K. Sinha, Parekh Thakur,
     Gopal Singh and Chandan Kumar for the Respondents.             H
    88         SUPREME COURT REPORTS                 [2009] 3 S.C.R.


A        The Judgment of the Court was delivered by

         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
B 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
  Magistrate, Khagaria, in Misc. Case No.20(M)2/97 directing
  restoration of possession of the land in dispute to the
C 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
0   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.
E        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
F   on 7.10.1994 under Section 145(4) of the Code, declared as
    follows :-

         "...... Therefore, on careful appreciation of the evidence
         adduced by the witnesses of both the parties and on
G        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     •
H
 -
                                                '
             SHAKUNTALA DEVI & ORS. v. CHAMRU MAHTO                  89
                    & ANR. [ALTAMAS KABIR, J.]


 -..         over the disputed land until evicted in due course of law."

                                                    (Emphasis supplied)
                                                                           A



             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       B
        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         c
        an order 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           D
        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
                                                                           E
        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
                                                                           F
        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.

             7. Appearing in support of the appeal, Mr. S.B. Sanyal,
        learned Senior Advocate, firstly contended that having regard      G
        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    H

----4
    90         SUPREME COURT REPORTS

                      ,
                                                   (2009] 3 S.C.R.


A 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 v. C. Ganesan ((1999) 6 SCC
   326]. The said decision was rendered in connection with
8
  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
  Section 482 of the Code in the High Court, which was allowed
c 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         ,
D 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
E these are circumscribed and could be invoked only on certain
  set principles.

       9.ln addition to the above, Mr. Sanyal also relied on the           ·.,.
  decision of a Three Judge Bench of this Court in Krishnan &
F Anr. v. 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 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
G
  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
H


                                                                       -
          SHAKUNTALA DEVI & ORS. v. CHAMRU MAHTO                    91
-·               & ANR. [ALTAMAS KABIR, J.]

     referred hereinabove.                                                A

           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
                                                                          B
     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 Relief Act makes it quite clear that the
     provisions of the Act would be available only with regard to civil
                                                                          c
     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
                                                                          D

     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      E
     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    F
     Specific Relief Act nor the provisions of the Limitation Act had
     any application to the facts of 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
                                                                          G
     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)
                                                                          H
    92         SUPREME COURT REPORTS                    (2009] 3 S.C.R.


A 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
B 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 of three years prescribed
C 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 Manda/ v. Jitendra Nath & Anr. (AIR 1952
D 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
E 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 :

F               "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 disturbing
         his possession would be meaningless unless he is
         restored to such possession. It is because of this that the
G
         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
                                                                              -
H
..        SHAKUNTALA DEVI & ORS. v. CHAMRU MAHTO
                 & ANR. [ALTAMAS KABIR, J.]
                                                                  93

          of reasons upon which we need not speculate. But I find       A
          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     B
          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
                                                                        c
     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 order passed   D
     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.
                                                                      E
           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 F
     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 G
     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
     not approach the Magistrate by way of proceedings under
     Section 145 of the Code. In this connection, he also submitted H
    94        SUPREME COURT REPORTS               [2009) 3 S.C.R.     •


A 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
B 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
c 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.

       15. Mr. Narendra Kumar submitted that the respondent
D 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
E 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
F 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
G 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 jurisdiction under Section
  482 of the Code in order to do complete justice between the
  parties.

H        17. We have carefully considered the submissions made
    SHAKUNTALA DEVI & ORS. v. CHAMRU MAHTO                        95
           & ANR. [AL TAMAS KABIR, J.]

on behalf of the respective parties and we see no reason to             A
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     B
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         c
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 application under Section 482 thereof does
not, therefore, commend itself to us.
                                                                        D
       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               E
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             F
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         G
145(6) of the Code within six months 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.
                                                                        H
    96         SUPREME COURT REPORTS                [2009] 3 S.C.R.


A         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
B 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
c    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 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.
0
    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
E 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
F 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
G. possession 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
H until evicted therefrom in due course of law, and when he
    SHAKUNTALA DEVI & ORS. v. CHAMRU MAHTO                      97
           & ANR. [ALTAMAS KABIR, J.]

proceeds under the proviso to sub-section (4), he may restore         A
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         B
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               C
accordingly allowed the criminal miscellaneous application filed
by the 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      D
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         E
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   F
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 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         G
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      H
    98           SUPREME COURT REPORTS               [2009] 3 S.C.R.


A to possession could be put back in possession. There is also
  no explanation forthcoming as to the cause of such delay.
  Accordingly, even ifthe 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
B 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.    ''
c
    R.P.                                         Appeal dismissed.




                                                                       '
                                                                       )"