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Taashuq HussaIn Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 87 of 1958
Judge
Reported inAIR1959All568; 1959CriLJ1043
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 146(1B), 146(1D) and 435
AppellantTaashuq Hussain
RespondentState and ors.
Advocates:R.D. Gupta, Adv.
DispositionRevision dismissed
Excerpt:
criminal - revision - sections 146(1b), 146(1d) and 435 of criminal procedure code, 1898 - there can be no indirect or collateral attack by or during an appeal against or an application for review or revision of the order of the magistrate passed under section 146(1b) - finding given by a civil court under section 146 not being a finding of a criminal court cannot be revised under section 435 - even if the high court had power of interfering with it in revision directed against an order of magistrate the power cannot be exercised in the absence of copy of finding. - .....to dispose of the case in accordance with the finding.2. it was contended before me that in a revision application against an order of the magistrate passed under section 146 (1-b) the finding of the civil court on the reference can be challenged. it is kid down in section 146 (1-d) 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 any such finding be allowed.'this provision means not only that there can be no direct attack on the finding through an appeal or an application for review or revision but also that there can bo no indirect or collateral attack by, or during an appeal against, or an application for review or revision of the order of the magistrate passed under section 146 (1-b)......
Judgment:
ORDER

M.C. Desai, J.

1 . In a proceeding under Section 145, Cr. P. C. the Magistrate not being able to decide which party was in possession referred the dispute under Section 146(1) to a civil Court and the latter gave a finding to the effect that the opposite party was in possession. On receipt of the finding the Magistrate passed the order under revision stating that he had seen the order of the civil Court and directing that the property be released in favour of the opposite party. The applicant being aggrieved by the order filed an application in revision in the Court of the Sessions Judge, who dismissed it remarking that under Section 146 (1-D) the finding of the civil Court on the reference could not be appealed against or revised or reviewed and that the learned Magistrate was bound to dispose of the case in accordance with the finding.

2. It was contended before me that in a revision application against an order of the Magistrate passed under Section 146 (1-B) the finding of the civil Court on the reference can be challenged. It is kid down in Section 146 (1-D) 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 any such finding be allowed.'

This provision means not only that there can be no direct attack on the finding through an appeal or an application for review or revision but also that there can bo no indirect or collateral attack by, or during an appeal against, or an application for review or revision of the order of the Magistrate passed under Section 146 (1-B). Ordinarily when an appeal is filed (or an application for review or revision is presented) from a final order the legality or correctness of an interlocutory order can also be challenged, but in view of the provision of Section 146 (1-D), the finding of the civil Court cannot be challenged in an application for revision of the Magistrate's order passed under Section 146 (1-B).

3. Under Section 435 the High Court (or the Sessions Judge) can revise any finding given by an inferior criminal Court. A finding given by a civil Court under Section 146, not being a finding of a criminal Court, cannot be revised under Section 435. There is also no appeal provided against that finding in the Criminal Procedure Code. Therefore, even in the absence of Section 146 (1-D), the civil Courts' finding could not be challenged by a direct appeal or application in revision and the provision in Section 146 (1-D) must have been enacted in order to prevent the finding being challenged indirectly or collaterally in an appeal against, or application for revision from, the final order passed by the Magistrate under Section 146 (1-B). The learned Sessions Judge, therefore, rightly held that he could not go into the merits of the finding of the civil Court.

4. This revision application is directed against an order of the Magistrate and a copy of his order has been filed. No copy of the finding of the civil Court has been filed and even if this Court had the power of interfering with it in revision, the power cannot be exercised in the absence of a copy of the finding.

5. The application is dismissed.


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