RAM LAKHAN RAI CHOUDHARY Vs. RAGHUNATH CHOUDHARY AND ORS.
HIGH COURT OF GAUHATI
Ram Lakhan Rai Choudhary
Raghunath Choudhary And Ors.
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P.K. Goswami, J. -
(1.) THIS application in revision is directed against an order passed under Section 146(1B) of the Code of Criminal Procedure by the Magistrate, First Class, Gauhati, in a Proceeding under Section 145 Criminal Procedure Code. The Petitioner earlier unsuccessfully moved the learned Sessions Judge under Section 435 / 438 of the Code of Criminal Procedure.
(2.) IN this proceeding under Section 145 Criminal Procedure Code, the learned Magistrate passed an order under Section 146 Criminal Procedure Code, referring the matter to the Civil Court for a decision. The Sadar Munsiff in due course, after hearing the parties, held in favour of the first party possession. On receipt of this decision from the Civil Court, the learned Magistrate passed his order declaring the first party to be in possession in conformity with the decision of the Civil Court and it is this order which is being impugned in this revision application and it is also urged by Mr. Lahiri, the learned Counsel for the Petitioner, that the reference itself was bad and that the Sadar Munsiff was not competent to entertain the reference inasmuch as the property was valued more than the pecuniary jurisdiction of that Court. At the outset Mr. Lahiri had to face a preliminary objection, in that it has been urged by the Opposite Party that this application under Section 439 Criminal Procedure Code is not maintainable in view of the provisions under Section 146(1D), which may be set out:
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
Several decisions of the different High Courts have been very fairly placed by Mr. Lahiri including those against his contention. The first decision to which reference may be made is (FB),
Raja Singh v. Mahendra Singh. This was a case under Article 227 of the Constitution and following observations are relied upon by Mr. Lahiri:
The provisions of Sub -section (1D) of Section 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 -section (1B). The High Court can interfere with the finding of the Civil Court under Sections 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 -section (1B), not only the operative order of the Magistrate but the entire proceeding including the findings 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
The next decision is : AIR 1960 Mad 169, Rengammal v. Rama Subbarayalu Reddiar, wherein the following observation is relied upon by Mr. Lahiri to support his contention that this application under Section 439 is maintainable. Referring to Section 146(1D) his Lordship observed as follows:
This restriction is but proper because the findings get merged in the decision of the Magistrate and all the grounds that can be urged against the finding can be urged against the finalised decision and if there is not such restriction there will be multiplicity of proceedings and possible conflicting revisional orders reducing the whole thing to an absurdity
The first decision which is against Mr. Lahiri is . This was writ application and the Court held that no such application will lie against an order passed under Section 146 Criminal Procedure Code, His Lordship Bhargava, J. as he then was, observed as follows:
It is clear that neither there can be an appeal nor a revision nor review against order passed under Section 146 Criminal P.C., which means that the Legislature intended these orders to be final. If the Legislature had made those orders final, 1 do not think that the Petitioners are entitled to challenge that by means of a Writ Petition
The next decision which is cited is , Ram Narayan Goswami v. Biswanath Goswami, where the following observation occurs:
The decision of the Civil Court on a reference under Section 146 of the Criminal Procedure Code cannot even be challenged, Sub -section (1D) of Section 146 of the Code of Criminal Procedure being a bar. The only remedy left would be to go to a Court of competent jurisdiction under Sub -section (1E) of Section 146 of the Code of Criminal Procedure
(3.) THE point which now arises for consideration is whether an application under Section 439 Criminal Procedure Code is absolutely a bar against an order passed by a Magistrate under Section 146(1B) in view of the provisions under Section 146(1D). We have already seen that there are two parts in this proceeding under Section 145 Criminal Procedure Code. After the order in the first part viz., when he is unable to decide as to which of the parties at the relevant time was in possession of the subject matter of dispute or when he is of the opinion that none of the Parties was in such possession, the Magistrate in conformity with Section 146(1) refers all the proceedings to the Civil Court after drawing up a statement of the facts of the case and informing the parties to appear before the Civil Court on a date which he himself fixes. The proceedings thereafter come back to the referring Magistrate with the decision of the Civil Court and then he next passes the final order in the case in conformity with the said decision. Section 146(1D) had to be advisedly inserted in Section 146 in order to prevent multiplicity of proceedings. The Civil Court's assistance being requisitioned by the Criminal Court as provided for under the law, unless a barring provision is introduced in the way it is done under Sub -section (1D) it would have been open to the party aggrieved by the decision of the Munsiff to agitate about the correctness of that decision in the hierarchy of Civil Courts either by way of appeal or by way of revision. Section 146(1D), therefore, in terms bars appeal, review or revision of the finding of the Civil Court in specific terms. The word "Review" is also a pointer that Section 146(1D) refers only to a review before the Civil Court as there is no review as such provided for under the Code of Criminal Procedure. Section 146(1D) therefore, cannot be invoked to be a bar against a revision application under Section 435 or 439 Criminal Procedure Code. After the final order is passed under Section 146 (1B) by the Criminal Court, it is open to an aggrieved party in an appropriate case to invoke the revisional jurisdiction under Sections 435 and 439 of the Code of Criminal Procedure. Whether such a petition succeeds or not is a different matter, but a petition cannot be said to be not maintainable in law. With respect, I agree with the observations of the Patna High Court in : AIR 1963 Pat 243 referred to above. The objection as to the maintainability of this application is therefore overruled.;
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