Patna High Court
State Of Bihar vs Hari Mishra And Anr. on 8 May, 1964
Equivalent citations: AIR1965PAT411, 1965CRILJ527, AIR 1965 PATNA 411, 1965 BLJR 97 ILR 45 PAT 18, ILR 45 PAT 18
JUDGMENT Anant Singh, J.
1. This reference was made by the Munsif of Araria through the District Judge of Purnea. It appears that by an order dated 15-2-1960 Mr. S.N. Varma, Sub-divisional Magistrate of Araria, referred a case under Section 146 (1) of the Code of Criminal Procedure to the learned Munsif of Araria for decision as to the question of possession between the rival claimants over the subject-matter of a proceeding under Section 145 of the Code of Criminal Procedure. The order of the Sub-divisional Magistrate was to the following effect:
"The first party is present.
The second party is also present. To my file.
The first party flies written statement and a petition for time to file affidavit. Second party does not file anything. Heard lawyers of both parties. Admittedly there is a title suit pending between the parties in which the question of possession will be gone into. It is, therefore, not desirable for this Court to take up consideration of this question in this proceeding. I am forfified in this view by Rugga Natha v. Moona Nanda, AIR 1959 Raj 153 (1). The lands in dispute are attached under Section 146 Cr. P. C. Send the record to the Munsif Araria for needful Parties directed to appear before him on 1-3-60".
An objection was taken before the Munsif of Araria on behalf of the first party in the proceeding that the reference made by the learned Sub-divisional Magistrate was not proper, as not having been made in accordance with the provisions laid down in Section 146 (1), Criminal Procedure Code.
2. The learned Munsif thought that the objection taken appeared to be valid and, therefore, he has referred the matter posing the following questions:
"1. Whether it is open for a Magistrate to refer a case under Section 146 (1) of the Cr. P. C. to a Civil Court without drawing up statement of the facts of the case and without expressing his opinion that he is unable to decide the question of possession.
2. Whether it is open for the Civil Court to return back the reference to the Magistrate concerned, when the reference is not in accordance with law as provided under Section 146 (1) of the Cr. P. C.
3. Whether it would be within the jurisdiction of the Civil Court to decide the question of possession on a reference like the present one".
Section 145 of the Code of Criminal Procedure lays down the procedure how the proceeding is to be conducted. As provided in Sub-section (1), the parties are required to put in their documents or to adduce, by patting in affidavits, the evidence of such persons as they may rely in support of their claims. Sub-section (4) then provides:
"The Magistrate shall then, without reference to the merits or the claims of any of such parlies to a light to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so pat in, hear the parties and conclude the inquiry .. and, if possible decide the question whether any and which of the parties was at the date of the order before mentioned in such possession .... ." Section 146 is as follows:
"(1) If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub-
section (4) of Section 145; and he shall direct the parties to appear before the Civil Court on a date to be fixed by him.
(1A) On receipt of any such reference, the Civil Court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of all such evidence, and after hearing the parties, decide the question of possession so referred to it.
It would appear that the Magistrate has no unrestricted powers to make a reference at his option as and when he likes to do so. It is obligatory on him that upon making any reference, he must try to form his own independent opinion as to possession and it is only when, on a consideration of the evidence adduced before him in the form of affidavits or documents, he is unable to decide which of the party was in possession or is of opinion that none of the parties was in possession, that he may attach the property and refer the case to the civil court of competent jurisdiction for its decision and while so doing he must have to draw up a statement of the facts of the case and forward the record to the civil court. It is then that the civil court is clothed with the jurisdiction to decide the question of possession after perusing the evidence already given before the Magistrate and taking such further evidence as may be produced before it by the parties. The civil court, however, is not to pass any final order but it will only transmit its decision to the Magistrate who, as provided in Subsection (1B) of Section 146, has to pass an order in conformity with the decision of the civil court. A Magistrate cannot shirk his responsibility and refer any proceeding to the civil court without first applying his mind to the facts of the case. It was pointed out by a Division Bench of this Court in Shreedhar Thakur v. Kesho Sao. 1962 B.L.J.R. 267 at 272 : (AIR 1962 Pat 468 at p. 471)-
"A Magistrate cannot take recourse to Section 146(1) merely for the purpose of shifting his own responsibility. It is only when either of the two contingencies mentioned in the sub-section arises that he can refer the case to the Civil Court". This was a case in which some evidence had been adduced before the learned Magistrate, but because he made the reference without considering that evidence that it was held to he incompetent. The instant case is worse, in that, as the learned Munsif has pointed out, there was no evidence put on the record whatsoever. The learned Magistrate has not drawn up even a statement of the tacts of the case. As will appear from the relevant order of the learned magistrate himself, il was only after the first party filed its written statement and wanted lime to file affidavits and second parly doing nothing in the matter that he made the reference, because he thought that "there is a title suit pending between the parties".
The learned Munsif had no material before him to decide the question and, as I have pointed out, the learned Magistrate could not have made the reference without having, in the first instance, taken the evidence that might have been adduced by the parties and when he made the reference, he should have drawn up a statement of facts of the case. He should have made an honest effort of his own to come to a decision on taking evidence in the nature of affidavits etc. before he made the reference.
3. The fact that any title suit was pending, although it is disputed mat the facts of the title suit were the same, will make no difference in the legal position. It will not absolve the Magistrate of the necessity of proceeding in the manner as provided in Sections 145 and 146 of the Code of Criminal Procedure. The pendency of a title suit between the same parties and with respect to the same properties is no bar to the launching of a subsequent proceeding under Section 145, Criminal Procedure Code, if there be any apprehension of breach of peace in the meantime, and once such a proceeding is drawn up, it has to be disposed of according to law, unless the magistrate would decide to stay the proceeding till the disposal of the title suit. The decision in the title suit instituted before the drawing up of any subsequent proceeding under Section 145 of the Code of Criminal Procedure would not affect the decision in the subsequent proceeding under Section 145, Criminal Procedure Code, if the decision in such a proceeding came later than the decision in the title suit.
In such a contingency, technically speaking, the decision in the subsequent proceeding under Section 145 of the Code of Criminal Procedure will have to be set aside by another suit, although the Magistrate, while deciding such a proceeding after the decision in the title suit has got to honour the decision in the title suit about possession of the successful party. Thus, in such a situation, the only proper course for a Magistrate is to stay the subsequent proceeding. But 1 do not think that it is open to the Magistrate to refer the proceeding under section 146(1) of the Code of Criminal Procedure to a Civil Court only because a title suit is pending from before. The reason for this is obvious. The reference cannot be decided with the title suit. One is a civil matter and the other is quasi criminal. The decision in one is not binding on the other, unless the title suit is filed to set aside a particular order passed in a proceeding under Section 145 of the Code of Criminal Procedure.
The decision in a proceeding under Section 145, Criminal Procedure Code, is a decision only about possession and has no connection with the merits of the case as to the title of the parties. Thus, a bald reference by a Magistrate without complying ; with the provisions of section 146(1) Criminal Procedure Code, is incompetent, even though a title suit between the same parties and with regard to the same matter might be pending from before. As to the case of the Rajasthan High Court, which was relied upon by ihc learned Magistrate, the learned Munsif has tried to distinguish the facts of that case from the facts of the present case and has also treated the opinion of their Lordships as obiter dicta. We are, however, not in possession of the full facts of that case, but, with all respects to their Lordships, I am not inclined to agree with the view taken by them that, because there was a title suit pending between the parties from before, in a subsequent proceeding under Section 145, Criminal Procedure Code, the Magistrate should refer the matter to a Civil Court.
4. For the reasons I have already indicated, I must hold, in agreement with the learned Munsif, that the reference by the learned magistrate was incompetent and, in such a circumstance, any decision that may be given by the Civil court on even taking fresh evidence before it, would be surely without jurisdiction. Questions Nos. 1 and 3 posed by the learned Munsif must be answered in the negative,
5. The second question must also be answered in the negative, in that, the Civil Court, not being a Court of appeal of the Magistrate's court, is not competent and has no jurisdiction to decide the propriety of any reference made by a Magistrate under Section 146(1) of the Code of Criminal Procedure. The question whether such a reference by the Magistrate is proper or improper has to be decided by a higher court, having necessary jurisdiction. The learned Munsif, therefore, adopted the right course to have brought this matter to the notice of the Court, although there is no provision in the Code of Criminal Procedure for making of any reference by a Munsif. But this court may well consider the matter under Section 435 of the Code of Criminal Procedure, once it has come to its notice and, in fact, rule was issued by this Court on a perusal of the letter of the Munsif why the order in question passed by the Magistrate should not be set aside.
Although the Civil Court is not competent to decide about the competence or otherwise of any reference by a judicial pronouncement it can nevertheless bring to the notice of the Magistrate its opinion about the incompetent nature of the reference by means of a letter and the Magistrate may recall such a reference, if he accepts the Munsif's opinion. Such a course will save time and also the parties from unnecessary harassment in coming to the High Court.
6. In the result, the order of reference dated 15-2-1960 of the learned Magistrate is set aside and it is hereby quashed. The magistrate will now proceed to dispose of the proceeding according to law, unless he decides to stay it till the disposal of the title suit, if there be any, relating to the same property and between the same parties. The learned Munsif will send back the records of the case to the learned Magistrate.
7. Before parting, I may observe that this simple matter, which was brought to the notice of the Court in January 1961, has been placed for hearing after more than three years, with the result that .the proceeding under Section 145 of the Code of Criminal Procedure involving apprehension of breach of peace, drawn up in December 1959, has ever since remained pending.
G.N. Prasad, J.
8. I agree.