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Bijoyananda Das and ors. Vs. Sirish Chandra Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Ref. No. 34 of 1965
Judge
Reported inAIR1966Ori119; 1966CriLJ679
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 146(1D), 146(1E) and 439
AppellantBijoyananda Das and ors.
RespondentSirish Chandra Das and ors.
Appellant AdvocateH.G. Panda, Adv.
Respondent AdvocateR.N. Misra and ;R.C. Patnaik, Advs.
Excerpt:
.....glt 246, are not good law]. - 1. the facts of this case have been clearly stated in the orders of reference. when a revision is preferred against the order of the magistrate under sub-section (1b), not only the operative order of the magistrate but the entire proceeding including the finding of the civil court can be interfered with by the high court in appropriate cases if they are flagrant violation of the well recognised principles of law. the best exposition of the reasonings in support of this view is to be found in the minority judgment of sahay j......is the property belonging to the deity raghunath jiu. the members of the first party and second party members 1 to 5 are co-sebaits of the deity. in the written statement filed by the first party, it was stated that the entire body of co-sebayats were in joint possession of the disputed land, but that the second party members 6 to 22, in connivance with second party members 1 to 5 were trying to oust them from their lawful possession over the disputed land. the first party members filed an application for taking action under section 145, cr. p. c. as there was apprehension of breach of the peace. the case of second party members 6 to 22 was that the disputed land was settled with them on acceptance of salami by the entire body of the sebayats of the deity and that they were in.....
Judgment:
ORDER

G.K. Misra, J.

1. The facts of this case have been clearly stated in the orders of reference. The disputed land is the property belonging to the deity Raghunath Jiu. The members of the first party and second party members 1 to 5 are co-sebaits of the deity. In the written statement filed by the first party, it was stated that the entire body of co-sebayats were in joint possession of the disputed land, but that the second party members 6 to 22, in connivance with second party members 1 to 5 were trying to oust them from their lawful possession over the disputed land. The first party members filed an application for taking action under Section 145, Cr. P. C. as there was apprehension of breach of the peace. The case of second party members 6 to 22 was that the disputed land was settled with them on acceptance of salami by the entire body of the Sebayats of the deity and that they were in possession of different portions of the land settled with them in 1960. Though the settlement deeds were scribed and executed by second party members 1 to 5, members of the first party did not join in the matter of execution. They claimed possession of different portions of the land after reclamation at huge costs. The second party members 1 to 5 did not file any written statement. Second party member No. 1 examined himself as a witness and supported the case of the second party members 6 to 22. A reference was made to the Civil Court under Section 146 (1), Cr. P. C. as the Magistrate was unable to decide as to which of the parties was in possession on the date of the preliminary order. The Munsif to whom the case had been referred, transmitted his finding under Section 146 (1B) holding that members of the first party were in possession of the disputed land on the date of the preliminary order. The Magistrate on receipt of the finding disposed of the proceeding under Section 145, Cr. P. C. in conformity with the decision of the Civil Court declaring possession of the first party.

2. Before the learned Sessions Judge, two points were raised-

(i) The order under Section 145, Cr. P. C. was illegal as separate possession of land claimed by the second party members 6 to 22 on the strength of different deeds was covered by one proceeding; and

(ii) The Magistrate committed an illegality in declaring exclusive possession of the first party. The learned Sessions Judge rejected the first contention in Criminal Revision No. 3 M of 1965 and the point has not been pressed. On the second point the learned Sessions Judge was of opinion that on the case of the first party in the written statement itself, the order of the learned Magistrate declaring exclusive possession of the first party over the disputed land should be quashed and that in its place, both the members of the first party and the second party members 1 to 5 should be declared to be entitled to joint possession thereof until evicted therefrom in the course of law, forbidding all disturbance of possession by second party members 5 to 22 until such eviction.

3. Mr. Misra advanced two contentions :

(i) That the written statement of the first party was wrongly construed by the learned Sessions Judge and that there was no admission therein that they were in possession with the second party members 1 to 5; and

(ii) When assuming that the finding of the learned Magistrate is contrary to the admitted case of the first party in the written statement, no revision under Section 146 (1D) lies against the finding of the Civil Court given on a reference under this section, though the final order passed by the Magistrate in conformity with the decision of the Civil Court is assailed in revision.

4. The first contention has no substance. Though in paragraph 2 of the written statement of the first party, there was an assertion that they were all along in possession of the disputed property and that they were in possession on the date of the preliminary order, there was a clear admission in paragraph 3 that both the first party members and the second party members 1 to 5 were under joint possession. The entire paragraph may be quoted :--That the disputed property is a joint family Lakhraj property and it has not been partitioned by the co-sharers in metes and bounds and co-sharer was in separate possession of any portion of the said property. The disputed property was in 'common enjoyment' of the co-sharers as the sebayat of the family deity Shri Raghunath Jiu 'till it was attached under the order of the Court.'

The underlined (here into ' ')expressions fully support the conclusion of the learned Sessions Judgethat the first party admitted common enjoyment of both first party members and the second party members 1 to 5 on the date of the preliminary order. The first contention is accordingly rejected. The learned Sessions Judge's view on facts is unassailable.

5. The next question is whether an erroneous finding of the Civil Court on a reference under Section 146, Cr. P. C. can be interfered with in a criminal revision against the final order passed by the Magistrate in disposing of a proceeding under Section 145, Cr. P. C. in conformity with the decision of the Civil Court.

Section 146 (1D), Cr. P. Code prescribes 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. All the High Courts agree that the finding of the Civil Court cannot be interfered with directly in appeal, review or revision in view of this mandatory statutory provision.

6. There is, however, conflict of authorities as to whether such a finding can be assailed in revision against the order of the Magistrate disposing of the proceeding under Section 145, Cr. P. C. in conformity with the decision of the Civil Court after the Civil Court transmits its finding under section 146 (1B), Cr. P. C. Two views are on the field. One of them is that the provisions of Sub-section (1D) of Section 146 bar an appeal review or revision only so long as the Magistrate does not pass his order in conformity with the decision of the Civil Court. This provision does not impose any bar to any review or revision of the order of the Magistrate passed under Sub-section (1B). The High Court can interfere with the finding of the Civil Court under Sections 435 and 439 of the Code of Criminal Procedure after the finding is adopted by the Magistrate and the final order is passed. When a revision is preferred against the order of the Magistrate under Sub-section (1B), not only the operative order of the Magistrate but the entire proceeding including the finding of the Civil Court can be interfered with by the High Court in appropriate cases if they are flagrant violation of the well recognised principles of law. This view is represented by AIR 1960 Mad 169 and the majority judgment of the Patna High Court in AIR 1963 Pat 243 (FB).

The second view is that in a Criminal Revision against the order of the Magistrate passed in a proceeding under Section 145, Cr. P. C. in conformity with the decision of the Civil Court, the finding of the High (Civil?) Court cannot be assailed. A Criminal Revision is maintainable against that order. All other matters can be assailed excepting the finding of the Civil Court in revision. For instance, a reference under Section 146 (1) Cr. P. C. is permissible if the Magistrate is of opinion that none of the parties was then in possession or is unable to decide as to which of them was in possession of the subject of dispute. Then alone he would draw up a statement of facts of the case and forward the records of the proceeding to the Civil Court of a competent jurisdiction to decide the question whether any or which of the parties was in possession of the subject of dispute on the date of the preliminary order. It is open to the parties to assail in the criminal revision the very order of reference on the ground that it was in derogation of the provisions justifying reference. Similarly, if the Magistrate disposes of a proceeding under Section 145, Cr. P. C. not in conformity with the finding of the Civil Court, his order is assailable in revision. In other words, this view upholds the theory that the Civil Court's finding is not assailable in a criminal revision against the final order of the Magistrate passed under Sub-section (1B), and that it can only be challenged in a court of competent jurisdiction under Sub-section (1E). AIR 1959 Mad 111 and AIR 1959 All 568, and the minority judgment in AIR 1963 Pat 243 (FB) are in favour of this view. The best exposition of the reasonings in support of this view is to be found in the minority judgment of Sahay J. in AIR 1963 Pat 243 (FB). It is unnecessary to burden this judgment by repeating the same reasonings. With respect I agree with the reasonings given therein.

7. To sum up, the correct position of law is that the Civil Court's finding on a reference under Section 146, Cr. P. C. is not assailable in a criminal revision against the final order of the Magistrate passed in a proceeding under Section 145, Cr. P. C. in conformity with the decision of the Civil Court. A Criminal Revision is, however, maintainable against the final order and the order can be assailed on other grounds as might arise in the facts and circumstances of a particular case. The finding of the Civil Court, however, erroneous it may be, is final until it is set aside in a Court of competent jurisdiction under Sub-section (1E).

8. The learned Sessions Judge has made the reference relying on the majority view in AIR 1963 Pat 243 (FB).

As I prefer the minority view, the reference is discharged.


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