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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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.    

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________________J. (ALTAMAS KABIR)

________________J. (CYRIAC JOSEPH)

New Delhi Dated: 10.2.2009

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