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Nishi Mohan Dey Vs. Sonaram Namasudra and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantNishi Mohan Dey
RespondentSonaram Namasudra and ors.
Prior history
P.K. Goswami, C.J.
1. This is criminal revision Under Section 439 of the Code of Criminal Procedure directed against an order of the Magistrate, First Class, Silchar, declaring possession of the disputed land in favour of the second party in a proceeding Under Section 145, Cr.PC At an earlier stage the Magistrate had referred the case to the Munsiff Under Section 146 (1), Cr.PC On receipt of the finding of the Munsiff, the learned Magistrate passed the impugned order in conformity with the sai
Excerpt:
- - after careful consideration of the arguments advanced on both sides, we are clearly of opinion, in agreement with the decision in a. this would have defeated the very object and purpose of the provisions under sections 145 and 146, cr......be allowed.4. since the proceeding before the civil court after reference by the magistrate is a civil proceeding (vide : 1966crilj1514 , ram chandra v. state of u. p. — paragraph 6), if; the above provision were not advisedly inserted in the section, it would be open to an aggrieved party to move the civil court in appeal or in revision, as the case may be or even delay the proceedings before the civil court by seeking review of the finding. this would have defeated the very object and purpose of the provisions under sections 145 and 146, cr.pc therefore, the approach to civil court is completely barred under section 14(5 (id), cr.pc under section 435, the court in revision can call for and examine the record of any proceeding before any inferior criminal court. before,.....
Judgment:

P.K. Goswami, C.J.

1. This is criminal revision Under Section 439 of the Code of Criminal Procedure directed against an order of the Magistrate, First Class, Silchar, declaring possession of the disputed land in favour of the second party in a proceeding Under Section 145, Cr.PC At an earlier stage the Magistrate had referred the case to the Munsiff Under Section 146 (1), Cr.PC On receipt of the finding of the Munsiff, the learned Magistrate passed the impugned order in conformity with the said finding Under Section 146 (IB). The petitioner moved the learned Additional District Magistrate Under Section 435, Cr.PC and the Court held that the petition was not maintainable in view of the provisions Under Section 146 (ID), Cr.PC Hence this revision.

2. It is submitted on behalf of the petitioner that the High Court Under Sections 435 and 439 in revision has powers to interfere with the finding of the Munsiff given Under Section 146 (IB). There is some divergence of views in the High Courts on this point. The Patna High Court in : AIR1963Pat243 (FB) Raja Singh v. Mahendra Singh and the Rajasthan High Court in , Indersingh v. State and in 1968 Cri LJ 1386 (Raj), Manak Chand v. State appear to take the view that the power Under Sections 435 and 439 extends to interference with the finding of the civil court which merges in the order of the criminal court later when the final order is passed by the Magistrate. On the other hand, a contrary view has been taken by the Allahabad and Calcutta High Courts in Chandi Kumar v. Probhat Kumar : AIR1968Cal216 and in an unreported Single Bench decision of this Court in Criminal Revn. No. 90 of 1968, D/- 30-8-1968 (Assam). Our attention has also been drawn to my decision in Single Bench in A.I.R. 1969 Assam and Nagaland 81, Ram Lakhan v. Raghunath, where I have held that revision is competent against the final order of the Magistrate passed Under Section 146 (IB). It is submitted that the unreported decision of this Court, which is a later decision, has taken a view contrary to that of A.I.R. 1969 Assam and Nagaland 81. We have, therefore, gone through both the decisions and we are unable to find any conflict in these two decisions. It is true that the unreported decision has not given reasons, but we do not understand that the learned Chief Justice in that case intended to lay down that revision is not competent against the final order of the Magistrate passed Under Section 146 (IB). The decision in A.I.R. 1969 Assam and Nagaland 81 is only to the effect that revision is competent against the final order of the Magistrate passed Under Section 146 (IB), Cr.PC This decision has not held that revision is competent against the finding of the civil court as such. After careful consideration of the arguments advanced on both sides, we are clearly of opinion, in agreement with the decision in A.I.R. 1969 Assam 81 that revision is competent' against the final orders of the Magistrate passed Under Section 146 (IB), Cr.PC

3. The next question which was not directly considered in the unreported decision and which is very strenuously canvassed before us is whether while revision is competent against the final orders of the Magistrate, it will be open to the aggrieved party to agitate against the finding of the civil court in conformity with which the Magistrate has pass ed the order. It is submitted by Mr. J. P. Bhattacharjee, the learned Counsel for the petitioner that Section ]46 (ID) bars only appeal, review or revision against the finding of the civil court. In other words, only the remedies open on the civil side are barred Under Section 146 (ID). This Section does not bar the High Court and the Criminal Court in revision in interfering with the finding of the Mun-sif in an appropriate case. The learned Counsel however concedes that finding of fact by the Munsiff will not be open to attack in revision as in any other case. In order to appreciate this submission, we have to bear in mind the object and purpose of the provisions of Sections 145 and 146. These two sections amongst others, appear in Chapter XII, which deals with disputes as to immovable property. The main object of these two provisions is to prevent likelihood of breach of peace. With that object in view, a time limit has been laid down Under Section 145 (4) which provides that the Magistrate shall, as far as may be practicable, decide the case within a period of two months from the date of the appearance of the parties before him. Section 146 (IB) also provides that the Civil Court shall conclude the enquiry, as far as may be practicable, within a period of three months from the date of the appearance of the parties before it. We must read Section 146 (ID) in this context.

No appeal shall lie from arr finding of the Civil Court given on a reference under this Section nor shall anv review or revision of any such finding be allowed.

4. Since the proceeding before the Civil Court after reference by the Magistrate is a civil proceeding (vide : 1966CriLJ1514 , Ram Chandra v. State of U. P. — paragraph 6), if; the above provision were not advisedly inserted in the section, it would be open to an aggrieved party to move the Civil Court in appeal or in revision, as the case may be or even delay the proceedings before the civil court by seeking review of the finding. This would have defeated the very object and purpose of the provisions Under Sections 145 and 146, Cr.PC Therefore, the approach to civil court is completely barred Under Section 14(5 (ID), Cr.PC Under Section 435, the Court in revision can call for and examine the record of any proceeding before any inferior criminal court. Before, therefore, the Court in revision can deal with a particular matter, it must be a matter relating to a criminal proceeding. The finding of the Munsiff, although at the requisition of the criminal court, is in a civil proceeding and it is on that basis that Section 146 (ID) had to be provided, so that no further challenge oL that finding may be made in the hierarchy of Civil Courts. Section 439, Cr.PC also necessarily must relate to a criminal proceeding and in subordinate court. Since Under Section 146 (IB), the criminal court has no other option than to pass an order in conformity with the decision of the civil court, it remains a decision of the civil court which is acted upon by the criminal court. It will be open in criminal revision to challenge the order of the Magistrate only when it is not in conformity with the decision of the civil court or if there is any other illegality in the proceeding before the Magistrate. The finding of the civil court throughout remains as such even after it is being transmitted to the Magistrate and that finding cannot be challenged either before the Magistrate or in revisions Under Sections 435 and 439, Cr.PC If the civil court commits any breach of fundamental principles of law or such other gross illegalities, it would be open to the aggrieved party to move the High Court by means of an appropriate application under Article 227 of the Constitution and in exercise of the power of superintendence the High Court may look into.the matter and pass such orders as may be necessary. It will not be open however, to challenge the finding of the Civil court before the High Court in Criminal Revision. We are, therefore, of opinion that a revision application is competent Under Sections 435 and 439, Cr.PC against the final orders passed by the Magistrate Under Section 146 (IB), Cr.PC, but no revision to the High Court lies against the finding of a civil court as such. In the instant matter, we are of opinion that no case is made out under Article 227 of the Constitution.

5. It is lastly submitted that the learned Munsiff had no jurisdiction to take up the matter as the disputed land is of a value more than the pecuniary .jurisdiction of his Court. It is contended that the Magistrate has to refer the case to a Civil Court of competent jurisdiction and the word 'competent', according to the learned Counsel, is both territorially and pecuniarily competent. We have considered the argument on this point and are in agreement with the views expressed in A.I.R. 1969 Assam ;md Nagaland SI (supra), where the Court has held that only territorial competency is sufficient. The question of value[ of the subject-matter is irrelevant in a proceeding Under Section 145, Criminal P.C. since the dispute centers round the likelihood of breach of peace with regard to the immediate possession of immovable property and the order passed in such proceeding is subject to the ultimate decision of the Civil Court with regard to right and title of the land and other reliefs.

6. The petition is, therefore, dismissed.

M.C. Pathak, J.

7. I agree.

D.M. Sen, J.

8. I agree.


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