Sasanka Sekhar Sinha vs Gouribala Sinha

N.K. Sen, J.—The main point of Mr. Roy who has appeared for Mr. Talukdar in support of the Rule seems to be that Section 146(ID) of the Code of Criminal Procedure is ultra virus the legislature inasmuch as no appeal would lie from that findings of the civil court.

In view of the facts of the case and the stage at which the order of the civil court was passed no other point needs any consideration.

It appears that the Petitioners are the second party to a proceeding u/s 145 of the Code of Criminal Procedure before the Subdivisional Magistarte of Birbhum. The matter was transferred to Shri N.C. Barua, Magistrate, first class, who found himself unable to come to a decision as to which of the parties was in possession of the subject of the dispute. He therefore sent the matter to the civil court for the determination of the point, Shri M.N. Roy, Munsif, held that the first party (opposite party herein) was in possession of the disputed property on the date of the order u/s 145 of the Code of Criminal Procedure. Upon the records being received from the civil court the learned Magistrate passed his order in conformity with the decision of the civil court. Under Sub-section (ID) of Section 146 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. (According to Mr. Roy this taking away of the right of revision is ultra vires the legislature. It is impossible to agree with him. Determination of a question u/s 145 of the Code by its very nature is to be undertaken in a summary way as an order of the criminal court cannot in any way take away the civil rights of the parties which are always left open. This section confers powers on Magistrates to intervene and pass a temporary order in a dispute between the parties regarding the possession of land which threatens to develop into use of force causing a breach of the peace. It is to prevent such danger that this speedy remedy has been provided. The High Court''s power of judicial superintendence under Article 227 of the Constitution has not, however, been taken away under Sub-section (ID) of Section 146 of the Code of Criminal Procedure. Therefore, it is idle to contend that this Sub-section is ultra virus the legislature.

It must be observed that the right to appeal is a creature of the statute and unless such a right is given expressly by the statute there will be no appeal in a criminal case and the revisional powers are merely discretionary. It is impossible after the findings of the civil court to interfere with the order passed by the learned Magistrate. The result is that this revisional application fails.