CHENNAN RAGHAVAN Vs. VENADAN KUMARAN
LAWS(KER)-1967-12-8
HIGH COURT OF KERALA
Decided on December 21,1967

CHENNAN RAGHAVAN Appellant
VERSUS
VENADAN KUMARAN Respondents

JUDGEMENT

- (1.) The question arising in this criminal revision is whether an order passed under S.146(1B) could be challenged in revision before this Court. Under S.146(1D): "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." The principle by which the jurisdiction of the criminal court is ousted is that the finding is entered by the Civil Court and even though such a finding has been entered on a reference made to it by the criminal court, it nevertheless continues to be a civil matter. A revision is competent against the order of the Magistrate finally disposing of the petition under S.145 in conformity with the decision of the civil court. But the High Court cannot, however, go into the correctness or legality or otherwise of the proceedings of the civil court. "S.146(ID) means not only that there can be no direct attack on the finding of civil court under the section through an appeal or an application for review or revision but also that there can be no indirect or collateral attack by or during an appeal against or an application for review or revision of the order of the Magistrate passed under S.146(IB). A finding given by a civil court under S.146, not being a finding of criminal court cannot be revised under S.435." (Vide Hussain v. State (AIR 1959 All. 568) and also Sethurayan v. Odayar ( AIR 1959 Mad. 111 ).
(2.) The majority of High Courts have endorsed the above view; but a Full Bench of the Patna High Court seems to have taken a different view as is seen from Raja Singh v. Mahendra Singh (AIR 1963 Patna 243 FB ). The majority view of the learned Judges reads: "The provisions of sub-s.(ID) of S.146 bar an appeal, review or revision under the Code of Civil Procedure, and even under the Code of Criminal Procedure, 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-s.(IB). The High Court can interfere with the finding of the civil court under S.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-s.(IB), not only the operative order of the Magistrate but the entire proceedings including the finding of the civil court are before the court and therefore, the High Court can, in appropriate cases, interfere with the findings of the civil court, if they are in flagrant violation of the well recognised principles of law." Even in the above view interference will be justified only if the order is one passed in flagrant violation of the well recognised principles of law. That means the High Court will not interfere with the finding of the civil Court merely on the ground of non consideration of some evidence or some irregularity found to have been committed by the civil court. Only in exceptional cases of flagrant violation of legal principles and that too after the Magistrate has passed final orders in conformity with such finding that the High Court will interfere.
(3.) This question seems to have come up for consideration before the Supreme Court in a recent decision in Ram Chandra Aggarwal v. The State of U.P. ( AIR 1966 SC 1888 ). In that case a reference was made by the Magistrate in a proceeding under S.145 for decision to the civil court on the question of possession under S.146(1) of the Code. The reference was made to the Munsiff in whose territorial jurisdiction the subject matter of the dispute lay. But one of the parties moved the District Judge for transfer of the case to another Munsiff since the Munsiff to whom the matter was referred was the Munsiff who had passed the order in execution which had led to the dispute between the parties. The District Judge accordingly transferred the case to another Munsiff and finding of possession was entered by that Munsiff on enquiry. On the basis of the finding the learned Magistrate passed final orders in the M. C and from that a revision was taken to the Sessions Court and the ground taken was that the decision of the civil court was a nullity since it had no territorial jurisdiction over the subject matter of the dispute. It was also contended that the District Judge had no jurisdiction to transfer the case and that the ultimate order made by the Magistrate was a nullity. The revision having been rejected by the Addl. Sessions Judge, the aggrieved party took up the matter in further revision to the High Court. The revision petitioners rested their case on the sole ground that S.24 CPC. was not available in respect of a reference under S.146(1) Cr. PC. and that, therefore, the proceedings subsequent to the transfer of the reference from the court of one Munsiff to that of another is a nullity. The High Court permitted the point to be urged. The main ground taken was that the proceeding before the civil court was not a civil proceeding within the meaning of S.141 CPC. The High Court negatived the contention. From that an appeal was preferred to the Supreme Court. The Supreme Court observed:- "Now as to the argument based on the ground that the proceeding before the civil court is not a civil proceeding. Mr. Goyal's contention is that since the proceeding before the criminal court under S.145 is a criminal proceeding any matter arising out of it, including a reference to a civil court, does not lose its initial character of a criminal proceeding .......... According to Mr. Goyal, when a Magistrate refers a question as to which party was in possession at the relevant date what he does is to delegate that duty, initially resting upon him to the civil court. In performing that duty the civil court would therefore, be acting as a criminal court just as the Magistrate would be doing where he has to decide the question himself. The two Privy Council decisions we have referred to sufficiently answer this contention. No doubt, the Magistrate, while discharging his function under the Code of Criminal Procedure under S.145(1), would be exercising his criminal jurisdiction, because that is the only kind of jurisdiction which the Code confers upon the Magistrates but when the Magistrate refers the question to a civil court he does not confer a part of his criminal jurisdiction upon the civil court. There is no prevision under which he can clothe a court or a tribunal which is not specified in the Criminal Procedure Code with criminal jurisdiction. We are. therefore, unable to accept the contention of Mr. Goyal. Mr. Iyengar tried to put the matter in a somewhat different way. In the first place, according to him, if we hold that the proceeding before the civil court is a civil proceeding then all the rubs of procedure contained in the Civil Procedure Code, including those relating to appeals or revision would apply to the proceeding. This, he points out, would be contrary to the provisions of S.146(ID) of the Code of Criminal Procedure which bar an appeal, review or revision from any finding of the civil court From this he wants us to infer that the proceeding does not take the character of a civil proceeding even though it takes place before a civil court. We are not impressed by this argument. If sub-s.(ID) had not been enacted (and this is really a new provision) an appeal or revision application would have been maintainable. Now that it is there, the only effect of it is that neither an appeal nor a revision is any longer maintainable. This consequence ensues because of the express provision and not because the proceeding before civil court is not a civil proceeding." It was also held by their Lordships that: "Though it is not necessary to consider in this case whether the proceeding before the civil court is a civil proceeding as contemplated by S.141 or not, there is good authority for saying that it is a civil proceeding." On the above authority, I hold that a revision of this type against an order passed under S.146(IB) is not maintainable and the revision petition is, therefore, dismissed.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.