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Bathula Krishna Brahmam and ors. Vs. Daram Chenchi Reddy and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Trusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case Nos. 328, 435, 658 and 661 of 1957 and Criminal Revn. Petn. Nos. 249, 334, 521 a
Judge
Reported inAIR1959AP129; 1959CriLJ290
ActsMadras Hindu Religious and Charitable Endowments Act, 1951 - Sections 87; Code of Criminal Procedure (CrPC) , 1898 - Sections 6, 435 and 439; Evidence Act; Indian Penal Code
AppellantBathula Krishna Brahmam and ors.
RespondentDaram Chenchi Reddy and ors.
Appellant AdvocateT.V. Sarma, ;M. Lakshmanarao and ;T. Veerabhadrayya, Advs.;Public Prosecutor
Respondent AdvocateB. Rajabhushanrao, ;V. Balakoteswararao, ;S.V. Kondapi, ;N. Subrahmanyam, ;M. Krishnamachari and ;N. Subrahmanyan, Advs. and ;Party in person
DispositionRevisions dismissed
Excerpt:
trust and societies - religious institution - section 87 of madras hindu religious and charitable endowments act, 1951 and sections 6, 435 and 439 of criminal procedure code, 1898 - petition against order of magistrate directing delivery of properties to trustees of board of religious endowment under section 87 of endowment act - whether magistrate acts as court under section 87 or persona designata - court observed that no warrant to treat magistrate functioning under section 87 as persona designata - he was working as criminal court under section 435 of criminal procedure code - revision petition can be considered by high court on its criminal side. - - 87. where a person has been appointed -(a) as trustee or executive officer of a religious institution, (b) to discharge the.....p. chandra reddy, c.j.1. these petitions are filed against the orders of different first class magistrates directing delivery of the properties to the trustees appointed by the deputy commissioner of the board of religious and charitable endowments under section 87 of the hindu religious and charitable endowments act (hereinafter to be called as the act). a preliminary objection is taken to the maintainability of these petitions on the ground that the first class magistrate exercises only executive functions under section 87 and does not act in a judicial capacity and that, at any rate, it was not as a court that he exercises jurisdiction but as a persona designata. these arguments are based on a judgment of justice bhimasankaram in anjayya v. venkateswara das, 1958-1 andh wr 283. 2. to.....
Judgment:

P. Chandra Reddy, C.J.

1. These petitions are filed against the orders of different First Class Magistrates directing delivery of the properties to the trustees appointed by the Deputy Commissioner of the Board of Religious and Charitable Endowments under Section 87 of the Hindu Religious and Charitable Endowments Act (hereinafter to be called as the Act). A preliminary objection is taken to the maintainability of these petitions on the ground that the First Class Magistrate exercises only executive functions under Section 87 and does not act in a judicial capacity and that, at any rate, it was not as a Court that he exercises jurisdiction but as a persona designata. These arguments are based on a judgment of Justice Bhimasankaram in Anjayya v. Venkateswara Das, 1958-1 Andh WR 283.

2. To appreciate the points involved in these revision cases, it is useful to set out the relevant sections of the Act and of the Criminal Procedure Cede (hereinafter to be referred to as the Code). Section 87 of the Act (omitting the unnecessary portions) runs thus:

'87. Where a person has been appointed --

(a) as trustee or executive officer of a religious institution,

(b) to discharge the functions of a trustee of a religious institution in accordance with the provisions of this Act, or

(c) as manager under Section 56 or in any scheme framed by the Board before the commencement of this Act,

and such person is resisted in, or prevented from obtaining possession of the religious institution, or of the records, accounts and properties thereof, by a trustee, office-holder or servant of the religious institution who has been dismissed or suspended from his office or is otherwise not entitled to be in possession or by any person claiming or deriving title from such trustee, office-holder or servant not being a person, claiming in good faith to be in possession on his own account or on account of some person not being such trustee, office-holder or servant, any Magistrate of the first class in whose jurisdiction such institution or property is situated shall, on application by the persons so appointed, and on the production of the order of appointment and where the application is for possession of property, of a certificate by the Commissioner in the prescribed form setting forth that the property in question belongs to the religious institution, direct delivery to the person appointed as aforesaid of the possession of such religious institution, or the records, accounts and properties thereof as the case may be:

Section 435 of the Code says (omitting the portions unnecessary for our purpose):

'The High Court or any Sessions Judge or District Magistrate or any Sub-Divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situated within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior court and may, when calling for such record, direct that the execution of any sentence or order be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation: All Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purpose of this sub-section and Section 437

Section 439 of the Code recites (omitting the unnecessary portions):--

1. In the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence; and, when the Judges composing the court of revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.

3. Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under Section 34, etc.

3. It is clear from Section 87 of the Act, extracted above, that the Magistrate is required to direct delivery of the property from a dismissed or suspended trustee or office-holder or servant or from persons Otherwise not entitled to be in possession or from one not claiming in good faith to be in possession on his own account, or on account of some person not being such trustee etc. This involves a decision on the issue whether the persons who offer resistance to the trustee appointed by the Commissioner taking delivery of the property have tide of their own to continue in possession or whether the claim in that behalf is in good faith.

The intendment of this section obviously is to save people who have not forward derivative titles from the dismissed trustees or employees of the institution or who claim them in good faith, from the operation of the section. Before reaching a conclusion in that behalf, the Magistrate has to hold an inquiry into the matter. In this situation, we fail to see how the Magistrate could be regarded not as a judicial functionary but as one discharging the duties of an executive officer. We are firmly of opinion that the proceedings before him are judicial in character.

4. In Dandaiah v. Venkatarama, : AIR1954Mad500 , a Bench of the Madras High Court consisting of Justice Subbarao and Justice Ramaswamy expressed the opinion that a Magistrate is a judicial officer and an order made by him without issuing a notice to the archaka or the tenants claiming under him is bad because it offends the fundamental principles of natural justice. In Seetharamaiah v. Bhaskaranarayana, 1954-2 Mad LJ 227 (Andhra), one of us decided that the issue of notice to the opposite party is mandatory before an order is passed under Section 87 of the Act as the proceedings are of a judicial nature.

To the same effect is the judgment of Manohar Pershad J., in Krishna Reddy, v. Venku Reddy 1957-2 Andh WR (NRC) 31. The view of Chief Justice Rajamannar and Justice Rajagopal Iyengar in Srinivasa v. Krishnaswamy, : AIR1955Mad72 is in accordance with the doctrine of the above mentioned case. It is laid down there that the Magistrate has to decide judicially whether the requirements of Section 87 of the Act have been complied with. It follows that the argument that the Magistrate while acting under Section 87 of the Act did not perform duties as a judicial officer is unsubstantial.

5. The more vital question is whether the Magistrate acts as a court under that section or as persona designata. The basis of the argument that it was in the capacity of a designated person that he discharges his duties under Section 87 of the Act is founded on the language employed in the section, namely, 'any Magistrate of the first class.' It is urged that if the intention of the Legislature was that he should be regarded as a Court in dealing with these matters, it would have used the word 'Court of the Magistrate of First Class.' A similar reasoning is adopted by Justice Bhimasankaram in 1958-1 Andh WR 263, where the learned Judge observed:

'But he is not acting in my opinion, as a Magistrate. He is only acting as persona designata. The jurisdiction conferred on him is a special kind of jurisdiction relating to civil rights of the persons who come before him and has nothing to do with his powers or duties as Magistrate.'

Reliance is placed in support of this proposition by the counsel for the respondents on some decided cases. In Wali Mahammad v. Manik Chandra, : AIR1957Cal221 , the Calcutta High Court had to deal with Sections 66 and 93 of the Bengal Village Self-Government Act (V of 1919). Under Section 66 of that Act, a Sub-Divisional Magistrate could transfer a case from a Union Bench to a Court subordinate to himself. Section 93 of that Act provided that the Code of Criminal Procedure shall not apply to any trial, suit or proceeding before a Union Bench or a Union Court. The learned Judges constituting the Bench remarked that, quite apart from Section 93 of that Act, the High Court could not interfere with orders passed by a Magistrate under Section 66 of the Bengal village Self-Government Act in exercise of its powers under Section 439 of the Code of Criminal Procedure.

6. To the same effect is a judgment of a single Judge of the Punjab High Court in State v. Banwari Nandu, 0043/1957 . In Banwari Gope v. Emperor, AIR 1943 Pat 18, it was ruled by a Full Bench of the Patna High Court that the High Court could not revise the order of conviction or sentence passed by a Special Magistrate who was appointed under Special Criminal Courts Ordinance (2 of 1942) for the reason that he did not exercise jurisdiction under the Code of Criminal Procedure but derived his jurisdiction from the Ordinance.

7. We do not think any of these rulings has relevancy in this context, as the point involved here, namely, whether the functionary acted as a court or as persona designata had not come up for discussion in any of them. They may have a bearing on another controversy which will be adverted to presently.

8. In Murali Manohar Prasad v. Emperor, AIR 1934 Pat 344, a Special Bench had to consider the provisions of the Press Emergency Powers Act, 1931. The learned Judges took the view that the District Magistrate when dealing with the Press Act or similar Acts was not a Court but an executive officer carrying out the functions on behalf of the executive Government and as such was not subject to the High Court's appellate jurisdiction. The ratio of that decision was based upon the provisions of the Press Act which conferred power on the District Magistrate to require the publisher of a newspaper to make a deposit by way of security.

It was this function that was treated as an executive one and as such not coming within purview of Section 107 of the Government of India Act which vested powers of superintendence in the High Courts over all Courts for the time being subject to the appellate jurisdiction, etc. This has no analogy because we have already pointed out that the proceedings under this section partook of a judicial character.

9. In State v. Beni Bahadur Singh, 1957 Cri LJ 268 (All), called in aid for the respondent, a criminal revision was preferred on behalf of the State of Uttar Pradesh against an order of the Sessions Judge allowing a criminal appeal filed by the opposite party by which he set' aside an order passed by a Judicial Magistrate of the First Class by which the Magistrate allowed compensation at a particular rate under die Payment of Wages Act, he having been appointed as the authority for workmen's compensation.

A preliminary objection was raised by the opposite party to the effect that a revision does not lie. In such a situation, it was decided by a single Judge of the Allahabad High Court that such an authority could not be regarded as subordinate to the High Court for the purpose of Section 115, C. P. C., or for the purpose of Sections 435 and 439 of the Code. It is to be seen that the Magistrate was constituted a separate authority for the purpose of that Act and he was not acting as a Magistrate.

10. Even in regard to this matter, judicial precedents are not uniform. In Shrinivas v. Superintendent, Govt. Printing Press, Nagpur, AIR 1945 Nag 94, it was held in a similar situation that a revision under Section 115, C. P. C., lay to the High Court. Similarly, a Full Bench of the Lahore High Court took the view in Works Manager, Carriage and Wagon Shops, Mohalpura v. K.G. Hashmat, AIR 1946 Lah 316 that such an authority was a Civil Court and was subject to the rcvisional jurisdiction of the High Court under Section 115 of the Civil Procedure Code. However, it is not necessary for us to resolve this conflict as the position envisaged in Section 87 of the Act is easily distinguishable from the one indicated above.

11. Another case cited by the respondent in support of his contention is Kiron Chandra Bose v. Kalidas Chatterji, AIR 1943 Cal 247. The proposition enunciated there was that the Chief Judge or the District Judge discharging functions under Paragraph 12 of the Bengal House Rent Control Order did not act as a Court with the result that his orders were not revisable under Section 115, C. P. C. The ratio decidendi of this ruling was that the order under which he was appointed was one made by the Governor by virtue of the powers derived by him under Section 81(2) of the Defence of India Rules and as such was an executive act, pure and simple.

According to the learned Judges, it was only a legislative enactment or rule having statutory authority that could create a Court or vest power in a Judge to decide matters outside his ordinary jurisdiction. This case also cannot throw any light on the problem to be solved by us. A decision in Nizam v. State, (S) AIR 1955 Hyd 241 referred to by the counsel for the respondent also docs not help him as it was a case where the Magistrate had to discharge executive functions and so was not amenable to the revisional jurisdiction of the High Court.

12. Veer Raju v, District Munsif of Ramachandrapuram, 1955 Andh WR 754: ((S). AIR 1957 Andh Pra 393) is next relied on strongly by the respondent. After reviewing the case-law in an exhaustive judgment. Justice Satyanarayanaraju held that a District Munsif who was appointed Election Commissioner for the decision of disputes regarding the elections held under the Village Panchayata Act was not a Court but a persona designata. The reason of the rule was that a new authority was constituted for the purpose of deciding election disputes which were themselves the creation of a statute and he should be deemed to be performing those functions as a persona designata.

The opinion of the learned Judge is based on the legislative intent. This does not carry the respondent any further than the Allahabad case already referred to, as it proceeded on the assumption that the statute provided that particular duties assigned to an officer should be discharged as an individual Judge or as a separate authority and not as a Court. For particular purposes, he is constituted a different entity. That being so, it was thought that the Legislature must be deemed to have intended that those officers should perform the functions assigned to them not as a Court but in their personal or individual capacity. But the position is different when duties are entrusted to a Judge or a Magistrate in terms and he adjudicates on those matters as a Judge or as a Magistrate.

13. Our attention was next drawn to a ruling of the Full Bench of the Madras High Court in Lakshmanan Chetty v. Kannappar, ILR 50 Mad 121: (AIR 1927 Mad 93). The Full Bench was concerned with the interpretation of Rule 4 of the Rules made by the Governor-in-Council under the Madras City Municipal Act under which the Chief Judge of the Presidency Small Cause Courts was empowered to entertain revision petitions against the order of Corporation of Madras. Courts Trotter, C. J., who delivered the judgment of the High Court stated that the Chief Judge for purposes of the rule was 'persona designata' and not merely a 'selected member of the court chosen to represent it.'

The learned Judge agreed with the dictum laid down in Municipal Corporation of Rangoon v. M. A. Shakur, ILR 3 Rang 569: (AIR 1926 Rang 25) (FB) that if a court consisted of three Judges and a particular Judge was chosen for jurisdiction being vested in him for a definite purpose, he would function as a persona designata. It was pointed out there that that reasoning would not apply to a case where the court by its constitution had only a Single Judge.

The learned Judge remarked that 'words might easily have been used to indicate that while jurisdiction was conferred on the Small Cause Court that Court should only function' through its Chief Judge.' Thus, this judgment has drawn a distinction between a case where jurisdiction is conferred on a sole judge of a court and a case where the functions are assigned to one of a number of Judges of a court without any indication that such a Judge should function in that particular capacity as a representative of that court.

14. We may now notice rulings on the other side of the line. In Ramaswami Goundan v. Muthuvellappa Goundan, ILR 46 Mad 536: (AIR 1923 Mad 192), the question arose whether a District Judge disposing of petitions under the rules framed under Section 57 of the Madras Local Boards Act was a persona designata and not a Court subject to the revisional jurisdiction of the High Court under Section 115, C. P. C., and this was answered in the negative. A Full Bench of the same Court in Parthasaradhi Nayadu v. Koteswara Rao, ILR 47 Mad 369: (AIR 1924 Mad 561) expressed the opinion that a District Judge or a Subordinate Judge in deciding an election petition presented before him under the rules framed under the Local Boards Act acted as a Court in exercise of its ordinary jurisdiction extended for that purpose and not as mere peraona designata. Consequently, an order passed by him was subject to the revisional. jurisdiction of the High Court.

In : AIR1955Mad72 already noticed, Rajamannar, C. J. remarked that the High Court bad undoubtedly powers to pass orders under Section 439 in respect of orders of subordinate officers like the Sub Divisional Magistrates 'concerned' in that case. That case also related to Section 87 of the Act. A single Judge of that court ruled that orders under Section 87 of the Act are revisable by the High Court under Section 439 of the Code and are not governed by Article 227 of the Constitution.

15. It is unnecessary to multiply citation. The. effect of all these decisions is that if the Presiding Officer was selected to act in a particular matter in his private or individual capacity he acts as a persona designata and not in his capacity as a Judge; but if additional duties are entrusted to him as the Presiding Officer of that court he discharges them as a Court attracting all the incidence of such jurisdiction such as appeal, revision, etc., attached to it. When new functions are assigned to him, his jurisdiction as Presiding Officer is enlarged quite dissimilar to the situation where the officer is constituted a special authority and does not act in the discharge of those functions as the Presiding Officer.

16. A critical examination of the language of Section 87 will lead us only to the conclusion that the Act does not contemplate any particular Magistrates. On the other hand, the expressions used are any Magistrate of the First Class in whose jurisdiction such institution or property is situate.' It is thus clear that the functions are assigned to the Magistrate with certain territorial jurisdiction. It does not specify any individual Magistrate. Authority is vested in that behalf on all First Class Magistrates in respect of institutions situated within their jurisdiction. The reference is clearly to a First Class Magistrate as such representing the court.

All First Class Magistrates in the State are empowered to direct delivery of possession to the applicants within their jurisdiction irrespective of the person who fills the place. He derives authority under that section by virtue of the office he holds. The additional duties are cast on the Magistrate by the Legislature under Section 13 of the Madras General Clauses Act. In our opinion, the use of the term 'Magistrate' instead of 'court' does not by itself imply that he acts as a persona designata and not as a Court. We think that this expression is used in the same sense in which it is employed in the Code.

17. Before we examine some of the sections of the Code, we will advert to the definitions as given in the Evidence Act, the Indian Penal Code, which are indicative of the Magistrate being synonymous with the court of the Magistrate. In Section 3 of the Indian Evidence Act 'Court' is defined as including all Judges and Magistrates and all persons, except arbitrators, legally authorised to take evidence. Section 20 of the Indian Penal Code says:

'The words 'Court of Justice' denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.'

18. By Section 4(2) of the Code, the latter phrase is to be understood in the same sense in that Code. We feel that a Magistrate exercising jurisdiction under Section 87 of the Act falls within these definitions.

19. We will now turn to some of the provisions of the Code which will give a clue to the interpretation of the language of Section 87 of the Act. In Chapter II under the heading 'classes of criminal courts,' Section 6 enumerates five classes of courts: Courts of Session; Presidency Magistrates; Magistrates of the first class; Magistrates of the second class and Magistrates of the third class. It is significant that so far as categories 2 to 5 are concerned, the word used is 'Magistrates' and not courts of Magistrate.

Again Section 12 talks of the State Government appointing Magistrates of the First, Second and Third Class. Similarly, Section 17 provides for subordination of magistrates set out in Sections 12, 13 and 14 and Benches to the District Magistrate. The position is identical with regard to Presidency Magistrates. In Chapter III of the Code, powers are conferred on Magistrates of various courts. In Chapter IV, the heading is 'of aid and information to the Magistrates,' etc., and all the sections occurring in that chapter make mention of Magistrates.

So are Sections 157 - 159, 176, 186, 187, 190, 191 and 192. Schedule II of the Code which gives a tabular statement of the offences, punishments etc., and also the form for the trial of the offences refers only to Magistrates when the offences are triable by Courts other than Court of Session. It is significant that where the trial is in a Sessions court, the Court is described as a Court of Session. In contradiction to this, mention of other criminal courts is only as Magistrates, such as Presidency Magistrates, District Magistrates, Magistrates of the First Class or any Magistrate.

The Code mostly used the term 'Magistrates' rather than Magistrate's court. There can, therefore, be no doubt that the Code has employed the term 'Magistrate' as equivalent to Magistrate's Court. It must be taken that Section 87 of the Act also has used that word with the same signification. It is pertinent to note that even in Section 435 it is the District Magistrate or Sub-Divisional Magistrate that is empowered to call for and examine the record in any proceeding before any inferior criminal court.

Explanation I to this section and Section 439(3) are so worded as to bring out the intendment of the Code not to differentiate between court of Magistrates and Magistrates, by employing these expressions interchangeably. There is, therefore, no warrant for treating a Magistrate performing the functions allotted to him by Section 87 of the Act as one acting as a persona designata and not as a Court. We have no hesitation in holding that he is an inferior criminal Court within the ambit of Section 435 of the Code.

20. This leads us to the point that since the Magistrate does not exercise criminal jurisdiction while acting under Section 87 of the Act the provisions of Section 439 read with Section 435 of the Code are not attracted. It is urged that these two sections only govern proceedings which are of a criminal nature before the inferior criminal Courts and cannot be extended to proceedings which are purely of a civil nature. We feel that the test in deciding whether revisions are entertainable under Section 439 read with Section 435 of the Code is not whether the proceedings are of a criminal or civil nature. It does not depend upon the nature of the proceedings but upon the nature of the Court.

It will be seen from Section 435 that emphasis is laid on proceedings before the inferior criminal Court. We need not probe into the intentions of Legislature in entrusting the Magistrates with jurisdiction in this behalf. It may be that it was thought that the Magistracy might more effectively discharge the functions in this regard. Be that as it may, we have to determine the issue with reference to the character of the court and not that of the proceedings. There is abundant authority for this view of ours.

21. There has been a divergence of judicial opinion, but the preponderance of authority is in favour of the opinion expressed by us. The Madras High Court has consistently taken the view which we have adopted above and almost all the High Courts barring those of Bombay and Lahore have fallen in line with this.

22. Even in Bombay, in Emperor v. Devappa Ramappa, ILR 43 Bom 607: (AIR 1919 Bom 158), a Division Bench of that Court decided that a revisional application lay under Sections 435 and 439 of the Code against an order passed by a Magistrate dealing with a matter under the Workmen's Breach of Contract Act. But, this did not commend itself to the Full Bench of that Court in V.B. D'Monte v. Bandra Borough Municipality, : AIR1950Bom397 , which preferred the principles enunciated in other decisions which have an opposite effect and in one of which, Lokmanya Mills v. Municipal Borough, Barsi, AIR 1939 Bom 477: 41 Bom LR 937, Sir John Beaumont C. J., observed that 'the question of liability to tax is a purely civil matter and the Magistrate hearing an appeal against a demand notice is a criminal court, so that an appeal lies from him to the Sessions Court, and not to the District Court, and revision lies from the Sessions Court to the High Court as a civil revisional application.' Suffice it to say that this conflict was set at rest by the Full Beach, referred to above which has concurred in the opinion of Beaumont C.T. As already observed, the rulings of the Punjab High Court are consistent with those of Bombay.

The latest to which our attention is drawn is Hakim Rai v. The State, (S) (FB). It was ruled there that where a civil court had initiated proceedings under Section76 of the Code, a revision petition against the order of an appellate court should be on the criminal side under Section 439 of the Code and not under Section 15, C. P. C. In the course of the judgment, Falshaw J., who considered the opposing views observed that it could not be denied that there was a great deal to be said for the contrary view.

23. Coming to Madras High Court the opinion expressed in almost all the cases is that it is the character of the Court that determines the form and not the nature of the proceeding. There are two Full Bench rulings which we have to notice Emperor v. Venkanna Patrudu, 31 MLJ 440: (AIR 1917 Mad 971) (FB); which was followed in Kumaravel v. Shanmuga, AIR 1940 Mad 465 (FB). In the first of them, it was held that an application for revision of an order of a Civil Court granting sanction to prosecute under Section 476 of the Code could only be under Section 115, C. P. C., and the High Court could not interfere under Section 439 of the Code.

The later Full Bench which collects the leading cases on the topic has followed the earlier one. After an elaborate discussion on the subject, Chief Justice Leach stated that so far as that Court was concerned it was governed by the decision in 31 Mad LI 440: (AIR 1917 Mad 971) (FB); and that Bench had no power to reverse the decision, nor did he think it should do even if it had power since Section 439 of the Code applied only to cases which carne before Criminal Courts within the ambit of the Code.

24. AIR 1940 Mad 465 (FB), overruled a judgment of a single Judge in In re Raju Gunta, ILR 1939 Mad 439: (AIR 1939 Mad 472), in which Justice Pandrang Row held that if a Civil Court filed a complaint under Section 476, Criminal P.C., a revision petition to that Court shall be filed on the criminal side since the jurisdiction was exercisable only by the Criminal Procedure Code It may be mentioned that the practice of that Court has uniformly been to treat such matters as being of the nature of Civil Revision Petitions ever since In re Chennanagond, ILR 26 Mad 139, wherein Justice Bashyam Ayyangar expressed the opinion that the High Court cotuld not under the provisions of Sections 435 and 439 of the Code revise an order passed by any court other than a Criminal Court.

25. The same principle is adumbrated by the Calcutta High Court in Har Prasad Das v. Emperor ILR 40 Cal 477. It was held there that Section 439, Criminal P. C., was inapplicable to an order passed by a Civil or Revenue Court under Section 476, Criminal P. C., but the High Court could exercise the powers vested in it by Section 115, C. P. C. This was followed by a Bench of the Patna High Court in Ruktu Singh v. Emperor, AIR 1921 Pat 94. In Deonandan Singh v. Ram Lakhan Singh, AIR 1948 Pat 225, a Full Bench of the same Court decided that a Civil Court acting under Section 476 did not exercise any criminal jurisdiction and so interpreted an application in revision against an appellate order passed by a Civil or Revenue Court under Section 476B was governed not by Section 439 of the Code but by Section 115, C. P. C. Another Full Bench in Dhup Narain Singh v. State, AIR 1954 Pat 76, approved of this theory.

26. A Full Bench of the Allahabad High Court discussed this question in The matter of the petition of Bhup Kunwar', ILR 26 All 249, and two of the Judges were of the opinion that in a proceeding under Section 476 started in a civil suit, the Court had no jurisdiction to revise that order under Section 439 of the Code, but the third Judge was of the contrary opinion It is needless to refer to other decisions which contain the same doctrine. We express our respectful accord with the rulings of the Madras and other High Courts which are tothe same effect as in our judgment they embodythe correct law epart from the fact that they arebinding on us.

It is true that in all these cases, the question arose with reference to the proceedings arising under Section 476, Criminal P. C, But, that does not make any difference as the principle is the same, namely, whether emphasis is to be laid on the character of the forum or that of the proceeding before it. The rule that applies to one is equally applicable to the other. It follows that the orders challenged come within the ambit of Section 439 read with Section 435 of the Code and these revision petitions are competent.

27. The preliminary objection raised in these criminal revision cases is thus overruled.

28. We have now to consider the merits of these petitions. Criminal Revision Cases Nos. 435 and 666 of 1957 appear to have become anfractuous as possession has already been taken. Aside that, there is nothing to be said on the merits also, as the conditions for directing delivery have been fulfilled in them. These two petitions are therefore dismissed.

29. The only argument that was advanced in Criminal Revision Case No. 328/1957 was that, the temple in dispute was a private one. But, this was not raised before the Magistrate. That, besides, the Magistrate is not competent to decide the nature of the institution under Section 87. He has to direct delivery of the property if the requirements of Section 87 are satisfied. So, this petition has also to be dismissed.

30. In Criminal Revision Cases Nos. 658 and 640 the only point presented was that the order of the Deputy Commissioner appointing the respondent was not produced before the Magistrate. There is no substance in this for the reason that it was on file in a connected application. Further, the term of the petitioner has already expired and therefore he can no longer continue in possession of the property. Hence this revision case also has to be dismissed.

31. As regards Criminal Revision Case No. 661 of 1957, it is true that the Magistrate did not wait till the return of service and proceeded to dispose of the matter in the view that it was not obligatory on the Magistrate to wait till the notice was received by the dismissed or suspended trustee of the temple. It looks he thought that the party was evading service. No doubt it is an essential requisite of Section 87 that notice should be served on the opposite party and so the Magistrate ought to have waited till the process was returned.

But, having regard to the fact that possession was obtained by the respondent immediately after the orders are passed, we do not think it is desirable to interfere in revision with that order. After all, there is no finality attached to that order. If the petitioner is aggrieved by that order, he has a remedy by way of suit, or other appropriate proceeding. Therefore, this revision petition also has to be dismissed.

32. In the result, all the criminal revision cases are dismissed.


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