' Mst/. Ghulam Fatima alias Phami respondent No, 1 was married to Malik Zakaud Din the younger brother of Zia-ud-Din petitioner who divorced her on 6.11-73. Zia-ud-Din brought a complaint against respondent No, 1 to the Police. Respondent No, 1 was arrested in a case under section 294. P.
P. C. She was in occupation of one room of the house belonging to her ex-husband. She on account of her arrest had lost possession of that room. After she was released on bail she made a complaint before the District Magistrate against the highhandedness of the Police. The complaint was entrusted to Ashiq Hussain Butt, Magistrate Ist Class for inquiry and report. The report was made against the respondent in Juno 1974. On 5-7-1974 before the Deputy Commissioner could pass any order on her complaint she made an application under section 520, Cr. P. C. To the learned Ssessions Judge. Notice of the application was sent to the State as the petitioner had not been impleaded as a party. The learned Sessions Judge pissed order that the key of the house be returned to respondent No, 1 and the Deputy Commissioner. Jhelum was directed to execute the order. The said order has been challenged in this revision petition.
2. It has been argued by the learned counsel for the petitioner that as the petitioner was not made a party to the application given to the learned Sessions Judge, the rules of natural justice have been violated. It has been further argued that the provisions of section 520, Cr. P. C. Were not attracted as no judicial proceedings were pending in any Court nor by that time any judicial order had been passed. It has also been argued that if the application made to the Deputy Commissioner and his order marking the said petition to the Magistrate for inquiry and report be treated as judicial proceedings, no order was passed by the Deputy Commissioner under section 517Cr. P. C. According to the learned counsel for the petitioner section 518, Cr. P. C. Is also not applicable. It has also been argued that even if it be taken that the learned Sessions Judge had jurisdiction to entertain the application, he could only refer the matter to the High Court under section 438, Cr. P. C. And could not pass any final order himself. Finally it has been argued that as no property was seized during investigation of any criminal case the question of restoration of possession does not arise.
3. Learned counsel for the respondent, on the other hand, has argued that at the time respondent No, 1 was arrested the key of her room was taken over by the police and thus, the petitioner has no locus stand! To file the revision petition. In the statement of respondent No, 1, made before the Inquiry Magistrate, she stated that the keys were with the Police. But she also stated that the keys were with her brother-in-law (the petitioner).
4. Admittedly, the case under section 294, Cr. P. C. In which Mat. Ghulam Fatima was arrested has not been finally decided, so no question of passing any order under section 517, Cr. P. C. By any Magistrate arises.! The learned Sessions Judge has jurisdiction under section 520, Cr. P. CIA only when order by trial Court has been passed under section 517, Cr. P. C. On the conclusion of a case.
The learned Sessions Judge has no pow to directly entertain an application for the disposal of property involved In a case and to pass order on it. Section 520, Cr. P. C. Under which the learned Sessions Judge passed the impugned order clearly states that "any Court of appeal, confirmation,.
Reference or revision may direct any order under section 517, section 518 or section 519, passed by a Court subordinat thereto, to be stayed pending consideration by the former Court and may modify, alter or annul such order and make any further orders that may be just". Since no order was passed by any subordinate Court, the learned Sessions Judge could not take cognizance under section 520, Cr. P. C. The complaint made by Mst. Ghulam Fatima was not for any judicial inquiry but it was only a report against the highhandedness of the Police, and on that application no authority had passed any order for the disposal of the room. So, for this reason also the order passed by the learned Sessions Judge under section 520, Cr. P. C. Was not called for. No judicial proceedings were pending so that it may be said that the learned Session Judge was authorised under section 435, Cr. P. C. To call for the record of the said proceedings. Even if it be said that he had any such jurisdiction, he could have made a reference to the High Court under section 438, Cr.
P. C and Gould not pass a final order for the disposal of the room himself. It was purely a civil matter and if Mst. Ghulam Fatima had any right to the said room she should have sought civil remedy. Anyhow whatever the case may be, the learned Sessions Judge had no jurisdiction to pass the impugned order under section 520, Cr. P. C. Mst. Ghulam Fatima stated before the police that the key of the room was with her brother-in-law (the petitioner). When this was so a notice should have been issued to the petitioner by the learned Sessions Judge before he passed the order, even if for the sake of arguments it be said that the learned Sessions Judge was competent to pass the order. The petitioner in the absence of his brother was in barge of the house and is said to be in occupation of the c rest of the portion, therefore, when key of the room in dispute had been delivered to him, he should have been heard before any order was passed. For this reason also the order is not maintainable.
5. For the reasons given above, I accept the revision petition and vacate the order dated 5.7-74 passed by the learned Sessions Judge, Jhelum.