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Badri Nath Pandey Vs. U.P. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 201 of 1963
Judge
Reported inAIR1965All127; 1965CriLJ271
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 146, 146(1), 146(1A), 146(1D) and 561A; Constitution of India - Articles 226 and 227
AppellantBadri Nath Pandey
RespondentU.P. State and ors.
Appellant AdvocateG.P. Bhargava, Adv.
Respondent AdvocateH.P. Dubey, Adv.
DispositionRevision application allowed
Excerpt:
.....finding of civil court - section 146(1d) of criminal procedure code, 1898 - legislature made the finding of the civil court final - not subject to appeal, review or revision -high court cannot by an indirect manner adopt a different course - no revision - but section 146(1d) cannot take away the extraordinary jurisdiction under articles 226 or 226 of constitution of india. - - the magistrate was satisfied that there was an imminent danger of the breach of peace and, therefore, passed a preliminary order as contemplated by section 145 cr. but the finding of the civil court cannotbe challenged in revision, even though the order ofthe civil court appears to be improper beyondthis i shall not like to make any observation thiscourt while exercising revisional jurisdiction cannotgo into..........date of the preliminary order and, therefore, made a reference to the civil court for recording a finding on possession. this order of the magistrate was passed on 6-8-1962. the reference was heard by the munsif of gyanpur, and he was also unable to record a finding as to possession of the rival parties. on receipt of this finding, the magistrate found himself in difficulty as sections 145 and 146 cr. p. c, made no provision for such a finding of the civil court. the magistrate then passed the impugned order withdrawing the attachment and directing the property to be left as before without its being delivered to either of the parties.3. the learned advocate for the applicant wants me to look into the propriety of the finding of the civil court and, in the alternative, the propriety of.....
Judgment:
ORDER

D.S. Mathur, J.

1. This is an application in Revision by Badri Nath Pandey to challenge the order dated 11-10-1962 of the Sub-Divisional Magistrate, Gyanpur, Varanasi, whereby the proceeding under Section 145 Cr P C. was dropped, the attachment of the property in dispute was withdrawn and the property was to he left as it was found at the time of the attachment though if was not to be handed over to any particular party.

2. The facts of the case, in brief, are that apprehending breach of peace the applicant, Badri Nath Pandey moved the Magistrate for raking proceeding under Section 145 Cr. P C. with regard to two agricultural plots. The Magistrate was satisfied that there was an imminent danger of the breach of peace and, therefore, passed a preliminary order as contemplated by Section 145 Cr. P. C. and also attached the plots. Parties were called upon to file their written statements and also affidavits, The Magistrate was, however, not in a position to come to a decision as to which party was in possession or could be deemed to he in possession on the date of the preliminary order and, therefore, made a reference to the civil Court for recording a finding on possession. This order of the Magistrate was passed on 6-8-1962. The Reference was heard by the Munsif of Gyanpur, and he was also unable to record a finding as to possession of the rival parties. On receipt of this finding, the Magistrate found himself in difficulty as Sections 145 and 146 Cr. P. C, made no provision for such a finding of the civil Court. The Magistrate then passed the impugned order withdrawing the attachment and directing the property to be left as before without its being delivered to either of the parties.

3. The learned Advocate for the applicant wants me to look into the propriety of the finding of the civil Court and, in the alternative, the propriety of the earlier order of the Magistrate making a reference to the civil court. The suggestion thus made is that this Court may somehow exercise the revisional jurisdiction to quash one or the other order so that difficulties being faced may be got case.

4. It is true that the Munsif has not acted in accordance with the spirit of the law. A provision for reference to the civil court was made to expedite the disposal of proceeding under Section 145 Cr. P C. Any order passed by the civil court is final in the sense that no one can challenge that finding in appeal or revision, though he can challenge it in a regular suit to be instituted before a competent court. The civil court has to pass a summary order so that proceeding under Section 145, Cri. P. C. may come to an end without any delay; and after a suitable order has been passed to maintain law and order, the aggrieved party can seek remedy before a competent court.

5. Civil Court is meant to record and invariably does record a finding on the rights and claims of the parties. Where the plaintiff is not able to establish his case, his suit can be dismissed. The same principle could be applied to a summary proceeding. When the civil court has to come to a indicial decision in regular suits, no difficulty should have been felt in recording a summary finding of possession on a reference made to the civil Court under Section 146 Cr. P. C. In the instant case the Munsif adopted an unusual course by recording the finding that none of the rival parties had proved bis possession. There were only two persons, who were claiming possession of the land and one of them would have been in possession. If the land belonged to the Gram Samaj, the possession could be deemed to be of the Gram Samaj. However, the finding of the civil court is not one which this Court can in exercise of its revisional jurisdiction, set aside Sub-section (1D) of Section 146 Cr. P. C. makes it clear that 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 such a finding be allowed. When the legislature made the finding of the civil court final, not subject to appeal, review or revision, this Court cannot by an indirect manner adopt a different course. Such a provision does not take away the extraordinary jurisdiction of the High Court under Article 226 or 227 of the Constitution of India and in suitable,cases this Court may consider exercising that jurisdiction; but the finding of the civil court cannotbe challenged in revision, even though the order ofthe civil court appears to be improper Beyondthis I shall not like to make any observation ThisCourt while exercising revisional jurisdiction cannotgo into the propriety of that finding. It must passa suitable order passed on the finding given by thecivil court.

6. The learned Advocate for the applicant placed reliance upon the Full Bench decision of the Patna High Court in Raja Singh v. Mahendra Singh, AIR 1963 Pat 243. This Court has throughout taken the consistent view that the finding of the civil court on a reference made to it under Section 146 Cr. P. C. is not subject to appeal, review or revision, even when a party is challenging the final order of the Magistrate based on the finding of the civil court. There is no reason for me to depart from this view, all the more, when the provisions of the law are clear and are not capable of more than one interpretation. It is a settled rule that one cannot do indirectly what is directly prohibited. When the law prohibits the parties from challenging the finding of the civil court in appeal, review or revision, the revisional court cannot go into the propriety of that finding in a revision made to challenge the final order of the Magistrate based on the finding of the civil court. Similar observation was made in Muthu Sethurayar v. Lourduswami Odayar, AIR 1959 Mad 111.

7. If this Court now goes into the propriety of the order of the Magistrate passed in August 1962, it shall permit the party to challenge an order to which he had submitted at the time the order was passed. No one can be permitted to blow hot and cold at the same time. In the circumstances, the Magistrate's order passed in August 1962 cannot be allowed to be challenged in the present revision after a lapse of six months. Further, this Court shall not be justified to interfere with the Magistrate's order where he finds himself unable to record a finding on possession.

8. A consideration of the provisions of Sections 145 and 146 Cr. P. C. makes it clear that the final order to be passed by the Magistrate is one declaring one party or the other to have been in possession or to be deemed to have been in possession on the date of the preliminary order and to direct the delivery of possession to him. At the same time it is to be ordered that his possession shall not be disturbed until evicted therefrom in due course of law. Where the Magistrate is able to decide as to which of the parties was in possession on the material date he can pass an order as contemplated by Sub-section (6) of Section 145 Cr. P. C. after recording a finding on possession. But where he is unable to decide the question of possession, he makes a reference to civil court which has to give a finding on the possession of the rival parties. It is expected that the civil court would be able to come to a decision and be able to say as to which of the contending parties was, in the eye of law, in possession on the date of the preliminary order, On receipt of such a finding the Magistrate passes an order which he would have passed had he himself been in a position to decide that question. Naturally, therefore, the attachment cannot continue for an indefinite period. It continues till the passing ofan order contemplated by Sub-section (6) of Section 145 Cr. P. C.

9. However, in the instant case complication has arisen on account of the civil court not being able to say as to which of the parties was in possession and its finding being final not subject to appeal, review or revision. Mere release of the attachment shall not serve any purpose. There cannot be a vacuum. Possession has to be given to one party or the other. Further, release of the attached property without any further order can still cause breach of the peace as the two parties, and may be others also, may try to take forcible possession thereof.

10. Inherent power can be exercised in cases not covered by the law, i.e. to do justice in the case. As the legislature did not contemplate a situation of the present nature, no provision to meet such a situation was made in the Cr. P. C.; and when there is no provision in the Code, Courts of law can pass an equitable order in the exercise of the inherent jurisdiction.

11. The Magistrate dropped the present proceeding which was permissible only if there was no likelihood of the breach of peace. The Magistrate nowhere says that though there existed a dispute which was likely to cause breach of the peace, no such dispute existed at the time of the final order. Continuity of existing conditions can be assumed unless proved to the Contrary land, consequently, when there did exist & dispute in the past, the Courts of law shall have to act on the assumption that the dispute continues unless it is clear from the evidence of the parties that the dispute had ceased to exist. The proceeding could not, therefore, be dropped and it was necessary to pass some final order with regard to possession which, in the special circumstances of the case, would include continued attachment of the plots.

12. By the plots remaining under attachment none of the parties shall be prejudiced. This observation is being made on the assumption that the finding of the civil court is proper and none of the parties were in possession of the land. He is the person in possession on the date of the preliminary order who can suffer a loss by the continued attachment. The most suitable order to be passed in the circumstances of the case, therefore, is that the attachment of the plots shall continue till the Magistrate is in a position to pass a suitable order or the question of title or possession is decided by a competent court.

13. The Magistrate shall also be able to pass further order if in an appropriate proceeding the finding of the civil court is quashed and it is directed to submit a fresh finding in accordance with the law. Then the Magistrate can pass an order as contemplated by Section 146 Cr. P. C., but for so long as the finding of the civil court stands, the Magistrate cannot pass any further order though he shall be in a position to deal with the attached property after the decision of the dispute by a competent court.

14. The Revision application is hereby allowed and the impugned order dated 11-10-1962 of the Sub-Divisional Magistrate, Gyanpur, is set aside.The property in dispute shall remain under attachment and if already released shall be attachedagain. It shall be open to the parties to seek suchother remedy as they may be advised, and theMagistrate can in due course pass further orders inaccordance with the law keeping the observationsmade above in mind.


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