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Abdul Noor and anr. Vs. Siraj Ali and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantAbdul Noor and anr.
RespondentSiraj Ali and anr.
Excerpt:
- - bhattacherjee who passed the orders was himself a magistrate having competent jurisdiction and it has not been pointed out that the irregularity has occasioned any failure of justice. 9. it would have been better if clearer language had been used for the guidance of the magistrates who have got to send the record to the civil court. as this is a matter frequently occurring in the criminal courts, it will be better if section 146(1) cr......the orders of the magistrate do not show that he has made any attempt to understand the respective cases of possession but that he had taken the easier course of referring to the civil court. the magistrate should not create such an impression and he will be failing in his duty if he takes the easier course. the attention ot the magistrates will be drawn to this order of mine and they would desist from adopting this easy method of disposal which i find has become quite common, particularly after the amendment of section 146 cr. p. c. in 1955.4. but this will not affect the issue as far as the two cases before me are concerned as the petitioners did not take up the matter at that stage but only after the civil court had decided the matter against them. so i cannot allow the objection to.....
Judgment:

T.N.R. Tirumalpad, J.C.

1. These two criminal revisions are totally unconnected. But I am dealing with them together, because the same points of law have been raised in both of them. Both the cases arise out of proceedings under Section 145, Cri. P. C. Both the cases were before the sub-divisional Magistrate Shri A. Bhattacherjee and he drew up the proceedings under Section 145 and held the enquiry. In both the cases the lands were attached and Sri. A. Bhattacherjee referred the matters to the Court of the Munsiff Dharmanagar to decide the question as to which party was in possession of the subject-matter on the respective dates of the proceedings. The Munsiff decided the question and sent back the records to the S. D. M. Dharmanagar. But Shri A. Bhattacherjee had by that time ceased to be the S. D. M. Dharmanagar, but continued as a first class Magistrate at Dharmanagar. So he dealt with both the matters instead of the S. D. M. Dharmanagar and he passed the orders in accordance with the findings of the Munsiff. Against the said orders of Shri A. Bhattacherjee the parties affected filed revisions before the Sessions Judge. But the Sessions Judge refused to interfere and the parties have now come to this Court.

2. Two of the points raised in the two revision petitions are the same. It was pointed out in both the cases that Shri A. Bhattacherjee in sending the cases to the Munsiff for decision under Section 146(1), Cri. P. C. simply stated that ho could not ascertain which of the parties was in actual possession of the land that it was only in a case where the Magistrate has applied his mind to the case and was unable to decide as to which of the parties was in possession that he can make a reference under Section 146(1), Cri. P. C. and that if the Magistrate without applying his mind to the case sends it to the Civil Court, it will amount to shirking his duty And that in such a case the reference to the Munsiff would be improper. I am unable to understand how such an argument can be raised by the petitioners at this stage. If the petitioners felt when the Magistrate referred the matters to the Civil Court that the reference was improper on the ground that the Magistrate had not applied his mind, they could have come up in revision at that stage. But they did not do so, evidently because at that stage they felt that a decision on the question of possession by the Munsiff would be more satisfactory to them They took part in the proceedings before the Munsiff Without any objection and let in evidence. It happened that the findings of the Munsiff on the question of possession were against them and the Magistrate had to pass orders in conformity with the decisions of the Munsiff. The present contention is therefore advanced on account of what happened subsequently as a result of the findings by the Munsiff being adverse to petitioners. Such a contention cannot, therefore, be countenanced at this late stage and has to be rejected for that Very reason.

3. While of course the party affected cannot be allowed to raise the contention, it is necessary for me to impress on Magistrates who make such references to the Civil Court that it is their duty to apply their minds to the case and that it is only in cases where the Magistrate is of opinion either that none of the parties was then in such possession or that he is unable to decide as to which of them was in such possession of the subject of dispute that he should make a reference to the Munsiff. Otherwise he will be shirking his duty. No doubt the work of the Magistrate will be made easier by throwing the responsibility on the Civil Court to decide who is in possession and probably the finding by the Civil Court would be a more satisfactory finding. But Sections 145 and 146 Cri. P. C. make it clear that it is the duty of the Magistrate to decide the question of possession and that it is only in the two cases mentioned that the Magistrate can refer the matter to a Civil Court. Now if the Magistrate is to form an opinion he will have to apply his mind to the case. His order must show that he has perused the statements the documents and the affidavits in the case and understood the case of both parties and that he was of opinion either that neither party was in possession or that he was unable to decide as to which of them was in possession. A mere statement that be was unable to ascertain which party was in possession or that it was in the nature of a Civil dispute will not suffice.

In the two cases before me the orders of reference do not show that the Magistrate has perused the affidavits and has made an attempt to decide which of the parties was in possession. He has discussed merely the documents of title produced by both the parties. The documents of title alone will not help to decide the question of possession. It is the affidavits filed by both the parties taken along with the documents which will help to decide the question. The orders of the Magistrate do not show that he has made any attempt to understand the respective cases of possession but that he had taken the easier course of referring to the Civil Court. The Magistrate should not create such an impression and he will be failing in his duty if he takes the easier course. The attention ot the Magistrates will be drawn to this order of mine and they would desist from adopting this easy method of disposal which I find has become quite common, particularly after the amendment of Section 146 Cr. P. C. in 1955.

4. But this will not affect the issue as far as the two cases before me are concerned as the petitioners did not take up the matter at that stage but only after the Civil Court had decided the matter against them. So I cannot allow the objection to be raised at this stage.

5. The second contention advanced was that under Section 146(1B) the Civil Court had transmitted the records after concluding the enquiry to the S. D. M. Dharmanagar by whom the references were made and that only the. S. D. M. Dharmanagar could dispose of the case in conformity with the decision of the Civil Court, but that in the present two cases Shri A. Bhattacharjee who had by that time ceased to be the S. D. M. has disposed of the cases and that therefore the orders passed by Sri A. Bhattacharjee were without jurisdiction. It is true that it was the S. D. M. Dharmanagar who had made the references and that the cases should have been disposed of by the S. D. M. and not by Shri A. Bhattacharjee who toad by that time ceased to be the S. D. M. That was no doubt an irregularity. But I shall not interfere on that ground alone because Shri A. Bhattacherjee who passed the orders was himself a Magistrate having competent jurisdiction and it has not been pointed out that the irregularity has occasioned any failure of justice. All that the Magistrate had to do on receipt of the findings given by the Civil Court was to pass orders in conformity with such findings. Thus even if these orders are set aside and remanded all that the S. D. M. Dharmanagar has to do will be again to pass similar orders in conformity with the findings of the Civil Court. Thus no purpose will be served by setting aside the orders and in remanding the cases for fresh orders being passed by the S. D. M. That contention also therefore fails.

6. These are the only two contentions advanced in Criminal Revision No. 31 of 1960 and hence the said Revision has to be dismissed.

7. In Criminal Revision No. 6 of 1960, an additional argument was advanced namely, that the subject-matter in dispute comprised of 10 kanis of land, the value of which would be far more than Rs. 2000/- which is beyond the pecuniary jurisdiction of the Munsiff, that Section 146(1) Cr. P. C. directs the Magistrate to forward the record to a Civil Court of competent jurisdiction and that in the present case the record ought to have been sent to the Subordinate Judge at Agartala who alone had competent jurisdiction.

8. What is meant by a Civil Court of competent jurisdiction is not defined anywhere in the Criminal Procedure Code. Section 146 Cr. P. C. before its amendment in 1955 contained the term competent Court' and it seems to have been continued in the amended section as Civil Court of competent jurisdiction. But under the old section, the Magistrate has only to attach the land until a competent Court has determined the rights of the parties thereto or the person entitled to possession thereof. Thus, under the old section the parties themselves have to move the Civil Court after the attachment and if they file a suit the provisions of the Civil Procedure Code will apply and the Court of competent jurisdiction will be the Court under the Civil Procedure Code before which the parties will have to file the suit and the provisions of the Civil Procedure Code will apply to decide which is the Civil Court of competent jurisdiction. But under the amended section, the Magistrate himself has to send the record to the Civil Court of competent jurisdiction and so he has to decide which is the Competent Court and the parties before the Criminal Court do not have to initiate the proceedings before the Civil Court.

The scope of the proceeding under the amended Section 146(1) and 1-A is also very limited, as it only extends to a decision on the question of possession referred to the Civil Court and that too on the evidence adduced before the Criminal Court and on such further evidence as the parties produce before the Civil Court. There is no question of payment of any Court fee for the proceeding before the Civil Court and the Civil Court gives only a finding which will not amount to an order or decree in the proceeding. Thus the proceeding will not be in the nature of a suit or proceeding of a Civil nature as contemplated under the Civil Procedure Code. Hence the civil Court of competent jurisdiction cannot be the Court having the necessary territorial and pecuniary jurisdiction as in the Civil Procedure Code.

9. It would have been better if clearer language had been used for the guidance of the Magistrates who have got to send the record to the Civil Court. It is clear, however, that when a Magistrate decides to send a case under Section 146(1) Dr. P. C. to a Civil Court he cannot be expected to hold an enquiry as to the value of the land in dispute to ascertain the Court of competent jurisdiction to which the record is to be sent. The value of the subject-matter will arise only in the case of a civil suit or other civil proceeding. The enquiry in the Civil Court under Section 146 Cr. P. C. is more or less part of the Criminal proceeding. The finding by the Civil Court is, as provided in Section 146(1B) subject to any subsequent decision of a Court of competent jurisdiction, and hence the value of the subject-matter as provided in Section 6 C. P. C, cannot have anything to do with the competency of the jurisdiction of the Civil Court to which the Magistrate has to forward the record under Section 146 (1).

10. The question next arises whether it is the territorial jurisdiction of the Civil Court which should be taken into consideration in deciding the civil Court of competent jurisdiction. Here again the matter does not appear to be free from difficulty. My attention has in this connection been drawn to two decisions on this question, Bodh Narain Prasad v. Deo Narain Singh, : AIR1958Pat308 and Sheonath Prasad v. City Magistrate Varanasi, : AIR1959All467 . In both the decisions, it has been held that the competency of a Civil Court as provided in Section 146 of the Criminal Procedure Code consists in its territorial jurisdiction alone and not in its pecuniary jurisdiction. The matter has been elaborately discussed in both the decisions and it has been held the latter decision that the conception of pecuniary jurisdiction is unknown to the Criminal Procedure Code and that it is the territorial jurisdiction alone which determines as to in which Court a case can be filed and decided and that therefore the expression 'competent jurisdiction' occurring in Section 146(1) 'means competence on the basis of territorial jurisdiction.

11. The territorial jurisdiction of civil Courts is provided in Sections 16 to 20 C. P. C. In those sections again, the jurisdiction is in respect of suits. It can be extended to civil proceedings under Section 141, C. P. C. But since the proceeding under Section 146(1A) Cr. P. C. does not partake of the character of a civil proceeding the territorial jurisdiction defined under Sections 16 to 20 C. P. C. will not also apply to decide the Civil Court of competent jurisdiction to which the Criminal Court is to forward the record. Thus there is some real difficulty in deciding which is the Civil Court of competent jurisdiction in respect of a proceeding under Section 146(1) and (1A) Cr. P. C. The territorial jurisdiction of subordinate Magistrates is as provided in Section 12, Cr. P. C. It is quite different from the territorial jurisdiction of the Civil Courts under Sections 16-20 C. P. C.

12. It will however look as if the legislature meant that the Magistrate should send the record to a Civil Court having territorial jurisdiction over the subject-matter within the meaning of Sec-tons 16-20 C. P. C. As this is a matter frequently occurring in the Criminal Courts, it will be better if Section 146(1) Cr. P. C. is suitably amended by making this clear.

13. In the two cases before us both the Munsiff, Dharmanagar and the Subordinate Judge


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