NISHI MOHAN DEY Vs. SONARAM NAMASUDRA AND ORS.

JUDGEMENT

(1.) THIS is criminal revision Under Section 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 Under Section 145, Cr.PC At an earlier stage the Magistrate had referred the case to the Munsiff Under Section 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 Under Section 146(IB). The petitioner moved the learned Additional District Magistrate Under Section 435, Cr.PC and the Court held that the petition was not maintainable in view of the provisions Under Section 146(ID), Cr.PC Hence this revision.

(2.) 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 Under Section 146 (IB). There is some divergence of views in the High Courts on this point. The Patna High Court in : AIR1963Pat243 (FB) Raja Singh v. , Indersingh v. State and in , Manak Chand v. State 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 v. : AIR1968Cal216 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, A.I.R. 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 Under Section 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 . 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 Under Section 146(IB). The decision in is only to the effect that revision is competent against the final order of the Magistrate passed Under Section 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 that revision is competent" against the final orders of the Magistrate passed Under Section 146(IB), Cr.PC

(3.) SINCE the proceeding before the Civil Court after reference by the Magistrate is a civil proceeding (vide : 1966CriLJ1514 , Ram Chandra v. State of U. P. - paragraph 6), 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 Under Section 145(ID), Cr.PC Under Section 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 of 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 Under Section 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 Under Section 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.