Hari Prasad Tewari and Others vs Sewak Das

Mullick, J.—The point for decision is whether a Magistrate, acting u/s 145, Criminal Procedure Code, is authorized to refer a dispute to arbitration and to make an order in regard to . the possession of parties upon the award of the arbitrators. The jurisdiction of the High Court to interfere in orders u/s 145 Criminal Procedure Code, has been discussed by a Full Bench of this Court in Parmessar Singh v. Kailaspati 35 Ind. Cas. 801 : 1 P.L.J. 336 : 17 Cri.L.J. 369 : 1 P.L.W. 95 : (1917) Pat. 1 and it has been decided that where there has been a refusal to exercise jurisdiction or an absence of jurisdiction or an excess of jurisdiction has been exercised with material irregularity, the High Court can interfere.

Here the question is whether reference of a case to arbitrators, even though made with the consent of parties, and a decision of the case based upon the award of the arbitrators is not an illegal exercise of jursidiction or refusal to exercise jurisdiction. It has been held in Hamidul Haq v. Atact Hossain 37 Ind. Cas. 513 : 2 P.L.J. 86 : 1 P.L.W. 81 : 18 CrI.L.J.145 that a Court has no jurisdiction to delegate its functions and to refer the dispute to arbitration without trying the case u/s 145, Criminal Procedure Code, and that the decision of a case on the award of the arbitrators is not a legal exercise of jurisdiction.

It is contended on behalf of the second party that there is nothing in the Criminal Procedure Code which prohibits a Magistrate to make a reference to arbitration if the parties consent to do so and that even if it is contrary to the provisions of the Code to make such a reference, the error is at most an irregularity and in no case can amount to an illegal exercise of jurisdiction.

There is, however, no authority cited in support of this argument. The learned Vakil relies, firstly, upon Janki Miser v. Kliha Miser 6 C.W.N. (109). In that case a Division Bench of the Calcutta High Court did not give any reasons for its order, but merely remarked that upon the merits of the case they declined to interfere, Stevens, J., one of the Judges, does appear to have said: "As the parties themselves had consented to an arbitration they had no right to complain in revision," but no reasons were assigned for the dictum and it must be treated as merely obiter. The other learned Judge, who was a member of the Bench, passed his order only upon the merits and he appears to have thought that substantial justice had been done.

The next case on which the learned Vakil relief is Taramoni Chaudhurani y. Gyanendra Mohan Chaudhurani 7 C.W.N. 461. In that case Brett and Harington, JJ., of the Calcutta High Court directed that the Magistrate should take into consideration the award of the arbitrators. The learned Judges, however, refrained from saying whether the award would be legal evidence and whether the Court was bound to abide by it. On the other hand in Banwari Lal Mukerjee v. Hriday Chakravarti 32 C. 552 : 1 C.L.J. 432 : 2 Cr.L.J. 347 the learned Judges of a Division Bench of the Calcutta High Court ruled that the Code does not contemplate reference to arbitration u/s 145, Criminal Procedure Code, but they went on to express the opinion that the error in this respect did not perhaps amount to an illegal exercise of jurisdiction. They did not, however, pronounce any definite opinion upon the point.

To my mind the matter is perfectly clear. u/s 145, Criminal Procedure Code, the Magistrate has to make an inquiry himself and to pass the order after applying his judicial mind to the facts of the case, and to the evidence adduced by the parties. He cannot divest himself of the case by delegating the decision to arbitrators even though appointed by consent of parties. To accept the award of the arbitrators as the sole basis of the decision is to substitute the mind of the arbitrators for the mind of the Court; and that is where the refusal to exercise jurisdiction arises. A Court may always direct inquiries and call for reports and may, where such reports are evidence take them into consideration, but an arbitration is a different matter altogether, for there the Court accepts the award of the arbitrators as the final pronouncement upon the facts. Looked at in this light, the arbitrators'' award in this case was entirely without jurisdiction and its acceptance by the learned Magistrate as the only basis for his decision constitutes a refusal to exercise jurisdiction.

There are two further defects in the Magistrate''s proceedings.

The so-called award had been returned by only two of the arbitrators and, therefore, it was not a complete award on which the Court should have acted.

The other point is that one member of the first party objected to the award, laying that his guardian had no right to consent to the reference. This point was not decided by the learned Magistrate.

So, even if there was jurisdiction to act on the award, there has been material irregularity in the exercise of that jurisdiction.

The question is not one of simple irregularity; in my opinion, there was a total absence of jurisdiction.

But even if the learned Magistrate''s acts in making the reference at all and in accepting a defective award amount only to irregularities, then the irregularities were serious and material irregularity and entitled the first party to invoke the aid of this Court.

The order of the Magistrate will, therefore, be set aside and the proceedings quashed. If there is still a fear of a breach of the peace the Magistrate will be at liberty to take fresh proceedings.