Nishi Mohan Dey vs Sonaram Namasudra and Others

P.K. Goswami, C.J.—This is criminal revision u/s 439 of the Code of Criminal Procedure directed against an order of the Magistrate, First Class, Silchar, declaring possession of the disputed land in favour of the second party in a proceeding u/s 145, Cr.PC At an earlier stage the Magistrate had referred the case to the Munsiff u/s 146 (1), Cr.PC On receipt of the finding of the Munsiff, the learned Magistrate passed the impugned order in conformity with the said finding u/s 146 (IB). The petitioner moved the learned Additional District Magistrate u/s 435, Cr.PC and the Court held that the petition was not maintainable in view of the provisions u/s 146 (ID), Cr.PC Hence this revision.

It is submitted on behalf of the petitioner that the High Court Under Sections 435 and 439 in revision has powers to interfere with the finding of the Munsiff given u/s 146 (IB). There is some divergence of views in the High Courts on this point. The Patna High Court in Raja Singh and Another Vs. Mahendra Singh and Others, and the Rajasthan High Court in Indersingh and Others Vs. State and Others, and in Manak Chand and Another Vs. State and Others, appear to take the view that the power Under Sections 435 and 439 extends to interference with the finding of the civil court which merges in the order of the criminal court later when the final order is passed by the Magistrate. On the other hand, a contrary view has been taken by the Allahabad and Calcutta High Courts in Chandi Kumar Sarkar Vs. Probhat Kumar Biswas, and in an unreported Single Bench decision of this Court in Criminal Revn. No. 90 of 1968, D/- 30-8-1968 (Assam). Our attention has also been drawn to my decision in Single Bench in AIR 1969 Assam and Nagaland 81, Ram Lakhan v. Raghunath, where I have held that revision is competent against the final order of the Magistrate passed u/s 146 (IB). It is submitted that the unreported decision of this Court, which is a later decision, has taken a view contrary to that of Ram Lakhan Rai Choudhary Vs. Raghunath Choudhary and Others, . We have, therefore, gone through both the decisions and we are unable to find any conflict in these two decisions. It is true that the unreported decision has not given reasons, but we do not understand that the learned Chief Justice in that case intended to lay down that revision is not competent against the final order of the Magistrate passed u/s 146 (IB). The decision in Ram Lakhan Rai Choudhary Vs. Raghunath Choudhary and Others, is only to the effect that revision is competent against the final order of the Magistrate passed u/s 146 (IB), Cr.PC This decision has not held that revision is competent against the finding of the civil court as such. After careful consideration of the arguments advanced on both sides, we are clearly of opinion, in agreement with the decision in Ram Lakhan Rai Choudhary Vs. Raghunath Choudhary and Others, that revision is competent" against the final orders of the Magistrate passed u/s 146 (IB), Cr.PC

The next question which was not directly considered in the unreported decision and which is very strenuously canvassed before us is whether while revision is competent against the final orders of the Magistrate, it will be open to the aggrieved party to agitate against the finding of the civil court in conformity with which the Magistrate has pass ed the order. It is submitted by Mr. J. P. Bhattacharjee, the learned Counsel for the petitioner that Section ]46 (ID) bars only appeal, review or revision against the finding of the civil court. In other words, only the remedies open on the civil side are barred u/s 146 (ID). This Section does not bar the High Court and the Criminal Court in revision in interfering with the finding of the Mun-sif in an appropriate case. The learned Counsel however concedes that finding of fact by the Munsiff will not be open to attack in revision as in any other case. In order to appreciate this submission, we have to bear in mind the object and purpose of the provisions of Sections 145 and 146. These two sections amongst others, appear in Chapter XII, which deals with disputes as to immovable property. The main object of these two provisions is to prevent likelihood of breach of peace. With that object in view, a time limit has been laid down u/s 145 (4) which provides that the Magistrate shall, as far as may be practicable, decide the case within a period of two months from the date of the appearance of the parties before him. Section 146 (IB) also provides that the Civil Court shall conclude the enquiry, as far as may be practicable, within a period of three months from the date of the appearance of the parties before it. We must read Section 146 (ID) in this context.

No appeal shall lie from arr finding of the Civil Court given on a reference under this Section nor shall anv review or revision of any such finding be allowed.

Since the proceeding before the Civil Court after reference by the Magistrate is a civil proceeding (vide Ramchandra Aggarwal and Another Vs. State of Uttar Pradesh and Another, ), if; the above provision were not advisedly inserted in the section, it would be open to an aggrieved party to move the Civil Court in appeal or in revision, as the case may be or even delay the proceedings before the civil court by seeking review of the finding. This would have defeated the very object and purpose of the provisions Under Sections 145 and 146, Cr.PC Therefore, the approach to civil court is completely barred u/s 14(5 (ID), Cr.PC u/s 435, the Court in revision can call for and examine the record of any proceeding before any inferior criminal court. Before, therefore, the Court in revision can deal with a particular matter, it must be a matter relating to a criminal proceeding. The finding of the Munsiff, although at the requisition of the criminal court, is in a civil proceeding and it is on that basis that Section 146 (ID) had to be provided, so that no further challenge oL that finding may be made in the hierarchy of Civil Courts. Section 439, Cr.PC also necessarily must relate to a criminal proceeding and in subordinate court. Since u/s 146 (IB), the criminal court has no other option than to pass an order in conformity with the decision of the civil court, it remains a decision of the civil court which is acted upon by the criminal court. It will be open in criminal revision to challenge the order of the Magistrate only when it is not in conformity with the decision of the civil court or if there is any other illegality in the proceeding before the Magistrate. The finding of the civil court throughout remains as such even after it is being transmitted to the Magistrate and that finding cannot be challenged either before the Magistrate or in revisions Under Sections 435 and 439, Cr.PC If the civil court commits any breach of fundamental principles of law or such other gross illegalities, it would be open to the aggrieved party to move the High Court by means of an appropriate application under Article 227 of the Constitution and in exercise of the power of superintendence the High Court may look into.the matter and pass such orders as may be necessary. It will not be open however, to challenge the finding of the Civil court before the High Court in Criminal Revision. We are, therefore, of opinion that a revision application is competent Under Sections 435 and 439, Cr.PC against the final orders passed by the Magistrate u/s 146 (IB), Cr.PC, but no revision to the High Court lies against the finding of a civil court as such. In the instant matter, we are of opinion that no case is made out under Article 227 of the Constitution.

It is lastly submitted that the learned Munsiff had no jurisdiction to take up the matter as the disputed land is of a value more than the pecuniary .jurisdiction of his Court. It is contended that the Magistrate has to refer the case to a Civil Court of competent jurisdiction and the word ''competent'', according to the learned Counsel, is both territorially and pecuniarily competent. We have considered the argument on this point and are in agreement with the views expressed in AIR 1969 Gau 51 (supra), where the Court has held that only territorial competency is sufficient. The question of value[ of the subject-matter is irrelevant in a\\ proceeding u/s 145, Criminal P.C. since the dispute centers round the likelihood of breach of peace with regard to the immediate possession of immovable property and the order passed in such proceeding is subject to the ultimate decision of the Civil Court with regard to right and title of the land and other reliefs.

The petition is, therefore, dismissed.

M.C. Pathak, J.

I agree.

D.M. Sen, J.

I agree.