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Kanhaya Vs. Harimohan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1973CriLJ1846
AppellantKanhaya
RespondentHarimohan and anr.
Cases ReferredNarsingha Rou v. Sricharan Pande.
Excerpt:
- - 2. that the first party was in actual physical possession of one almirah over which the words 'jai hind' bad been scribed and that the second party was in actual physical possession of the second almirah kept in the left side in the shop. 4. so far as the findings recorded by the munsif and endorsed by the magistrate are concerned, they cannot be assailed reviewed or revised as there is a specific provision under section 146(1)(d). cr. i do not think that the failure of the applicant to challenge this order in a revision on the ground of jurisdiction would disentitle him to the protection of this court under section 561-a......cr.pc a finding was returned by the munsif on 24-4-1973. in pursuance thereof the sub-divisional magistrate passed his final order on 4-6-1973. aggrieved thereby kanhaiya has filed the present application in this court for quashing the aforesaid order of the sub-divisional magistrate. mohammadabad.2. i have heard counsel for the parties. the findings recorded by the munsif. mohammadabad in the reference under section 146, cr.pc are as follows:-1. that both the parties were carrying on their business in the shop in dispute at the time of the preliminary order.2. that the first party was in actual physical possession of one almirah over which the words 'jai hind' bad been scribed and that the second party was in actual physical possession of the second almirah kept in the left side in.....
Judgment:
ORDER

P.N. Bakshi, J.

1. This is an application under Section 561-A, Cr.PC arising out of proceedings under Section 145, Cr.PC On the report of the Station Officer Qasimabad the Sub-divisional Magistrate. Mohammadabad held that there was an apprehension of breach of peace in respect of a shop situate in village Bahadur Ganj. police station Qasimabad, district Ghazipur. He therefore, passed a preliminary order on 19-7-1972 and attached the shop on 25-7-1972. The Magistrate was unable to decide as to who was in actual possession of the disputed shop referred the dispute to Mun-sif. Mohammadabad under Section 146 Cr.PC A finding was returned by the Munsif on 24-4-1973. In pursuance thereof the Sub-divisional Magistrate passed his final order on 4-6-1973. Aggrieved thereby Kanhaiya has filed the present application in this Court for quashing the aforesaid order of the Sub-divisional Magistrate. Mohammadabad.

2. I have heard counsel for the parties. The findings recorded by the Munsif. Mohammadabad in the reference under Section 146, Cr.PC are as follows:-

1. That both the parties were carrying on their business in the shop in dispute at the time of the preliminary order.

2. That the first party was in actual physical possession of one almirah over which the words 'Jai Hind' bad been scribed and that the second party was in actual physical possession of the second almirah kept in the left side in the shop.

On these findings the Munsif held as follows:-

Both parties are accordingly entitled to maintain their respective possession over the disputed shop till either of the party is evicted by some competent court of law in due course.

He has further directed that each of the parties shall remain in possession of the one almirah each found in the shop in question.

3. learned Counsel for the applicant has submitted that the Magistrate having held that the shop in question was in joint possession of the parties had no jurisdiction to proceed under Section 145. Cr.PC He has further submitted that the impugned order of the Magistrate directing delivery of moveable property namely one almirah to each of the parties was an order without jurisdiction and is liable to be quashed.

4. So far as the findings recorded by the Munsif and endorsed by the Magistrate are concerned, they cannot be assailed reviewed or revised as there is a specific provision under Section 146(1)(d). Cr.PC prohibiting such interference but what has to be seen in this case is whether on the findings already arrived at the impugned order is legally maintainable.

5. On the first question raised by learned Counsel there is authority of this Court, that in cases where the Magistrate finds that the parties are in Joint possession of the subject-matter in dispute, he becomes functus officio and the proceedings under Section 145, Cr.PC should be dropped. For reference mention may be made to the decision of this Court reported in Khem Chand v. Balwant : AIR1967All44 . I am thus of opinion in agreement with the above decision that in view of the findings of joint possession recorded by the Magistrate, he had no jurisdiction to proceed with the matter and the proper order for him to pass was to quash the proceedings under Section 145 Cr.PC and to direct the parties to get their rights ad- judicated upon by a competent civil] court.

6. The second submission of the learned Counsel for the applicant is that a criminal court had no jurisdiction to pass order with respect to moveable property in proceedings under Section 145. Cr.PC I am of opinion that this submission also has force. Section 145, Cr.PC concerns itself with disputes regarding immovable property. It does not empower the Magistrate to pass orders with respect to movable property. It has been held by a Division Bench of this Court in a case reported in Mt. Mehdei v. Beni Prasad AIR 1920 All 225 (2) (21 Cri LJ 242). that 'Section 145, Cr.PC relates only to immovable property and a Magistrate has no jurisdiction to pass an order in a proceeding under that section affecting movable property, even though such property is contained in the immovable property and over it there is also a dispute.'

7. In the present case the subject-matter of dispute was the shot) and the almirahs were also placed in the shop itself. To my mind, the above decision, the facts of which are similar to the facts of the present case, is binding upon me and in agreement therewith I hold that the Magistrate had no jurisdiction to pass orders with regard to the almirahs placed in the shop in dispute. Thus this part of the order of the learned Magistrate is also without jurisdiction and deserves to be set aside.

8. learned Counsel for the opposite parties has relied upon a single Judge decision reported in Gajanand Sharma v. Balmukund, 1971 All Cr R 591 (All.).. On its basis he has argued that findings cannot be challenged in quashing the impugned order. I have carefully perused this ruling. In my opinion, what has been decided in this case is that the findings of a civil court cannot be reviewed or revised in proceedings under Section 561-A. Cr.PC In the present case that question does not arise. I have accepted the findings of possession which have been arrived at by the Munsif and accepted by the Magistrate. In my opinion therefore this ruling has no application to the facts of the present case.

9. learned Counsel for the opposite parties has also placed reliance on a decision reported in Narsingha Rou v. Sricharan Pande. : AIR1967Ori182 and has submitted thereon that the Magistrate has the 'inherent powers' to pass an order with regard to movable property in question. I am in respectful disagreement with the view expressed in that case. Section 145. Cr.PC does not authorise a court to pass any order with respect to movable property in dispute. It is the High Court alone which has got 'inherent powers' under Section 561-A, Cr.PC for securing the ends of justice and preventing an abuse of the process of the court. No such power is inherent in the Magistrate to pass orders for the disposal of movable property in proceedings under Section 145. Cr.PC

10. learned Counsel for the opposite parties has also argued that it was open to the applicant to challenge the impugned order by way of a revision on the ground that the order was passed without jurisdiction. I do not think that the failure of the applicant to challenge this order in a revision on the ground of jurisdiction would disentitle him to the protection of this Court under Section 561-A. Cr.PC Inherent powers of the Court are meant for preventing the abuse of the process of the court or for securing the ends of justice. The impugned order of the Magistrate is obviously an order passed without jurisdiction. Even if it is accepted that this Court does not ordinarily exercise its inherent powers where an alternate remedy is open, yet that to my mind is not an absolute fetter on the exercise of the inherent powers by this Court under (Section 561-A Cr.PC

11. In the result, therefore, this application under Section 561-A is allowed. The impugned order of the Magistrate dated 4-6-1973 is quashed. The parties shall get their rights decided by a competent civil court.


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