High Court sets aside order, upholds release of land in favor of Chitawan.

The High Court allowed the application under Section 561-A, Criminal Procedure Code, set aside its previous order, rejected the reference made by the learned Civil and Sessions Judge, and upheld the order of the Sub-Divisional Magistrate, releasing the land in favor of Chitawan and others. The court emphasized securing the ends of justice and preventing contradictory orders.

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Issues Involved:

1. Maintainability of the application under Section 561-A, Criminal Procedure Code.
2. Whether the High Court can review or alter its previous judgment under Section 561-A, Criminal Procedure Code.
3. Whether the revision filed by Mahboob Ilahi alone was maintainable without the other co-applicants.
4. Whether the learned Civil and Sessions Judge could interfere with the findings of fact recorded by the learned Sub-Divisional Magistrate.
5. Whether the reference made on questions of fact was valid.

Issue-wise Detailed Analysis:

1. Maintainability of the application under Section 561-A, Criminal Procedure Code:

The application under Section 561-A, Criminal Procedure Code, was filed praying for the review of the order dated 5th April 1968, which accepted the reference and set aside the order of the learned Sub-Divisional Magistrate. The primary ground for the application was that the revision filed by Mahboob Ilahi alone, without the other co-applicants, was not maintainable. The High Court held that the application under Section 561-A, Criminal Procedure Code, is maintainable as it aims to secure the ends of justice and prevent abuse of the process of the court.

2. Whether the High Court can review or alter its previous judgment under Section 561-A, Criminal Procedure Code:

The High Court emphasized that Section 561-A, Criminal Procedure Code, preserves the inherent powers of the High Court to make necessary orders to secure the ends of justice. The court referred to several precedents, including the Full Bench ruling in Raj Narain v. State, which held that the High Court has the power to revoke, review, recall, or alter its own earlier decision in a criminal revision under specific conditions. The court concluded that it has the inherent power to review its previous judgment to secure the ends of justice.

3. Whether the revision filed by Mahboob Ilahi alone was maintainable without the other co-applicants:

The court noted that the application under Section 145, Criminal Procedure Code, was originally made by four persons, including Mahboob Ilahi. The learned Sub-Divisional Magistrate's order was against all four applicants, but only Mahboob Ilahi preferred a revision. The other three applicants did not challenge the order, making it final against them. The court held that the revision filed by Mahboob Ilahi alone could not be decided in his favor without the other co-applicants, as they were necessary and proper parties. Therefore, the revision was not maintainable in the absence of the other co-applicants.

4. Whether the learned Civil and Sessions Judge could interfere with the findings of fact recorded by the learned Sub-Divisional Magistrate:

The court observed that the learned Sub-Divisional Magistrate had recorded a specific finding that Chitawan and others were in possession of the land in dispute on the date of the preliminary order and within two months prior to it. This finding was based on the oral and documentary evidence on record. The court held that the learned Civil and Sessions Judge could not interfere with the findings of fact recorded by the learned Sub-Divisional Magistrate, as the reference to the High Court should be made only on questions of law.

5. Whether the reference made on questions of fact was valid:

The court reiterated that a reference in a criminal case can only be made on a question of law. The learned Civil and Sessions Judge made the reference on the ground that the learned Magistrate had discarded certain documents filed by Mahboob Ilahi as inadmissible. However, the court clarified that the learned Magistrate had merely found the documentary evidence unreliable, not inadmissible. Therefore, the reference made on questions of fact was not valid.

Conclusion:

The High Court allowed the application under Section 561-A, Criminal Procedure Code, set aside its previous order dated 5th April 1968, and rejected the reference made by the learned Civil and Sessions Judge. The court upheld the order passed by the learned Sub-Divisional Magistrate, releasing the land in favor of Chitawan and others. The court emphasized the importance of securing the ends of justice and preventing contradictory orders from remaining in existence.

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