1. This application in revision arises put of proceedings under Section 145, Criminal P. C. and is directed against an order passed by the Magistrate in terms of Section 146 (1-B) of the Code of Criminal Procedure.
2. The dispute related to a plot of land which each party claimed to be in his exclusive possession. On being satisfied that there was an apprehension of the breach of the peace in respect of the land in question, the Magistrate attached the property and followed the procedure laid down in Sub-clause (1) of Section 145, Criminal P. C. After perusing the written statements, affidavits and other documents filed by the parties concerned, the Magistrate came to the conclusion that it was a fit case which should be referred to the Civil Court under Sub-section (1) of Section 146, Criminal P. C. The parties were directed to appear before the Civil Court and they adduced evidence in support of their respective claims as respects of the fact of possession of the subject of dispute. The Civil Court recorded a finding that the opposite party was in possession of the disputed plot on the date of the preliminary order as also two months next before the date of such order.
3. On receipt of the finding of the Civil Court the Magistrate proceeded to dispose of the proceeding under Section 146 (1-B), Criminal P. C. In conformity with the decision of the Civil Court, and passed an order directing the delivery of possession to the opposite party.
4. The applicant filed a revision in the Court of the Sessions Judge against the order of the Magistrate but the same was dismissed. He then came up in revision to this Court and the matter was heard by our brother Rajeshwari Prasad, J., who observed that in view of the Division Bench decision of this Court in Guru Prasad Pandey v. State, 1967 All LJ 649 an order passed by the Magistrate in conformity with the decision of the Civil Court was not amenable to the revisional jurisdiction of the Sessions Judge and the High Court He was, however, of the view that it was not clear from the said decision whether what was intended was to lay down that no revision petition was entertainable against the order of the Magistrate or whether it was Intended that the correctness of the finding of the Civil Court was not liable to be challenged by way of revision. He, therefore, directed the case to be laid before a larger Bench for decision and that is how the matter has come before us,
5. The learned counsel for the applicant advanced three contentions before us; first, that the Magistrate had no jurisdiction to make the reference to the Civil Court. Secondly, that if it was shown that the reference made by the Magistrate to the Civil Court was itself illegal the order passed by him under Section 146 (1-B) would become vitiated and the High Court was entitled to interfere in revision. Lastly, it was contended that the order of the Magistrate, which was based on the finding recorded by the Civil Court, was liable to be challenged by way of revision.
6. Before we proceed to examine the above contentions, it is necessary to read the relevant provisions of the Code of Criminal Procedure.
7. Section 146, Criminal P. C. as amended by Act 26 of 1955, is as follows:
'146 (1)-- If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then iff such possession, of the subject of dispute, he may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub-section (4) of Section 145; and he shall direct the parties to appear before the Civil Court on a date to be fixed by him;
(1-A) On receipt of any such reference, the Civil Court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of all such evidence, and after hearing the parties, decide the question of possession so referred to it.
(1-B) The Civil Court shall, as far as may be practicable within a period of three months from the date of the appearance of the parties before it, conclude the inquiry and transmit its finding together with the record of the proceeding to the Magistrate by whom the reference was made; and the Magistrate shall, on receipt thereof, proceed to dispose of the proceeding under Section 146 in conformity with the decision of the Civil Court.
(1-D) No appeal shall lie from any finding of the Civil Court given on a reference under this section, nor shall any review or revision of any such finding be allowed.
(1-E) An order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction.
8. It will be seen that the Code envisages two situations in which a Magistrate may decide to make a reference to the Civil Court in a proceeding under Section 145, Criminal P. C.:
(i) if he is of opinion that none of the parties is proved to be in possession of the subject of dispute; or
(ii) if he is unable to decide as to which of them was in such possession. In the instant case the Magistrate, it appears, was unable to decide as to which of the two parties was in possession of the subject of dispute and he, therefore, considered it to be a fit case to be referred to the Civil Court for recording a finding on the question of possession. It is true that he did not, in so many words, state that he was making the reference because of his inability to determine as to which of the parties was in possession of the subject of dispute. Nonetheles, it is perfectly plain from the order passed by him that he found difficulty in reaching a definite conclusion as to which of them was really on possession. Under the circumstances he was, in our opinion, perfectly justified in making a reference to the Civil Court. In judging whether the Magistrate had sufficient ground to refer the dispute to the Civil Court, what has to be seen is the substance and not the form of the order. The jurisdiction of a Magistrate to refer the question of possession for decision to the Civil Court arises as soon as he is unable to make up his mind as to which of the parties was in possession on the relevant dates. It cannot be said that the order of reference passed by the Magistrate in terms of Sub-section (1) of Section 146 was incompetent. We, therefore, overrule the first contention and hold that the Magistrate had acted legally in referring the dispute to the Civil Court for decision.
9. As regards the second contention, whether it is open to a party to challenge the order of reference made by the Magistrate under Sub-section (1) of Section 146 by way of revision, we think that the answer must be in the affirmative. In the present case, however, the point raised is purely academic inasmuch as the applicant did not file any revision against the said order of the Magistrate.
10. It remains however to consider whether it is open to a party to assail the validity of the order of reference after the Civil Court has recorded a finding on the question of possession and that finding has been adopted by the Magistrate by passing an order under Sub-section (1-B) of Section 146, Criminal P. C. Prima facie, it seems to us that such a course would result in defeating the purpose which the law seeks to achieve, namely, to expeditiously dispose of the proceedings under Section 145, Criminal P. C. Apart from the fact that the aggrieved party has a right and opportunity to file a revision against the order of the Magistrate making the reference to the Civil Court at the tune when it was made, there is the further fact that the applicant having submitted to the jurisdiction of the Civil Court and contested the case before it, it would be contrary to the provisions of Sub-section (1-D) of Section 146 to permit a party to challenge the finding of the Civil Court by an indirect method. If once it is held that the finding of the Civil Court is not subject to an appeal or to a review or revision, then it must follow that a party cannot be allowed to do that indirectly which he is prohibited from doing directly. (See Madden v. Nelson and Fort Sheppard Railway, 1899 AC 626.
11. Coming to the last contention advanced by the learned counsel for the applicant, we are of opinion that the order passed by the Magistrate in terms of Sub-section (1-B) of Section 146 cannot be assailed in revision in so far as that order is in conformity with the finding of the Civil Court. By Sub-section (1-D) of Section 146 the legislature has put an embargo on appeal being filed against the finding of the Civil Court made on a reference under that section. The legislature has also barred the jurisdiction of the Criminal Court to review or revise any such finding of the Civil Court. It was said that the finding given by the Civil Court had merged in the order of the Magistrate and was no longer the decision of a Civil Court, but was in fact order of the Criminal Court, which is subject to the revisional jurisdiction of the Sessions Judge and the High Court. There is an obvious fallacy in this argument. The Magistrate while acting in pursuance of Sub-section (1-B) of Section 146 does not exercise his own judgment but rather accepts and adopts the finding given by the Civil Court as final and conclusive, so that the finding of the Civil Court is an integral part of the order of the Magistrate with the result that the order of the Magistrate cannot be set aside without disturbing the finding of the Civil Court. Indeed, the finding of the Civil Court is inseparable from the order of the Magistrate. Take away the finding and the order oJ the Magistrate ceases to exist. How can it then be argued with any show of reason that although the finding of the Civil Court is immune from attack, the order of the Magistrate based on such finding is liable to be set aside by way of revision?
12. The learned counsel referred to the case of Raja Singh v. MahendraSingh, AIR 1963 Pat 243 (FB) in support of his argument that an order of the Magistrate passed in terms of Sub-section (1-B) of Section 146 can be interfered with by the High Court in exercise of its revisional jurisdiction. Dealing with this question Misra, J. observed:
'In my opinion, however, Sub-section (1-B)' cannot be read in that form. If the legislature intended to curtail the power of the High Court in regard to the order passed under Section 146, Cr. P. C. there should have been side by side an amendment of Sections 435 and 439 of the Code. The same not having been done, Sub-section (1-D) must be given a narrow interpretation so as to confine it only to the finding of the Civil Court as such and not to extend it to the position which results when such a finding has been adopted by the Magistrate and order passed upon its basis.'
With great respect, the reasoning adopted by the learned Judges of the Patna High Court seems to us to be based on a misconception. The learned Judges seemed to think that the bar created by subsection (1-D) was in respect of the finding of the Civil Court only. The provisions of the Code of the Criminal Procedure relate to procedure in respect of criminal matters, such as, investigation, inquiry, trial or right of appeal or revision etc. The Code does not and cannot make provision for a right of appeal or revision against a finding or order of the Civil Court. That is a matter which falls within the exclusive province of the Code of Civil Procedure. The learned Judges were misled into thinking that the Civil Court recording a finding in terms of Section 146, Cr. P. C. was exercising a criminal jurisdiction and not a civil jurisdiction. At page 246 of their judgment the learned Judges said:--
'It is true, no doubt that against a finding of the Civil Court no appeal, review or revision will lie under the Code of Civil Procedure inasmuch as the Civil Court while adjudicating a reference made by the Magistrate, does not act as a Civil Court independently but only records a finding as a tribunal which in itself will not be operative unless it is adopted by the Magistrate, although the latter is bound to act in conformity with it.'
The above view of the learned Judges of the Patna High Court is clearly untenable in view of the decision of the Supreme Court in Ram Chandra Agarwal v. State of U.P. 1966 All LJ 1122 = (AIR 1966 SC 1888). Mudholkar, J., speaking for the Court stated as follows:
'No doubt, the Magistrate, while discharging his function under the Code of Criminal Procedure under Section 145 (1), would be exercising his criminaljurisdiction because that is the only kind of jurisdiction which the Court confers upon the Magistrate but when the Magistrate refers the question to a Civil Court he does not confer a part of his criminal jurisdiction upon the Civil Court. There is no provision under which he can clothe a Court or a tribunal which is not specified in the Criminal Procedure Code with criminal jurisdiction'.
There can, therefore, be no doubt that the finding given by the Civil Court in pursuance of the provision of Sub-section (1-B) of Section 146 is a finding of a Court of civil jurisdiction, and as such, it is not subject to the jurisdiction of Criminal Court. In so far as Sub-section (1-D) bars appeal from such finding and prohibits review or revision of such finding, it clearly envisages that in so far as the order of the Magistrate is based on the finding of the Civil Court, the same cannot be interfered with in any way. The order being an integral part of that finding cannot be set aside in revision.
13. We are, therefore, of the opinion that the points raised by the learned counsel for the applicant are without merit and must fail.
14. The revision application is without merit and is accordingly dismissed.