- Bookmark
- Share
- CaseIQ
Badri Nath Pandey v. U.P. State
Judgment Summary — Revision by Badri Nath Pandey
Factual and Procedural Background
The applicant, Badri Nath Pandey, moved the Sub-Divisional Magistrate (Gyanpur, Varanasi) seeking initiation of proceedings under Section 145, Criminal Procedure Code (Cr. P.C.) in respect of two agricultural plots because of an apprehended breach of the peace. The Magistrate passed a preliminary order under Section 145 and attached the plots, calling on the parties to file written statements and affidavits.
The Magistrate was unable to determine which party was in possession when the preliminary order was made and, on 6-8-1962, referred the question of possession to the civil court (the Munsif of Gyanpur) for a finding. The Munsif, on reference, recorded that none of the rival parties had proved possession. Faced with that finding and noting that Sections 145 and 146, Cr. P.C. provided no mechanism for such a civil-court finding, the Magistrate withdrew the attachment and directed that the property be left as it was found at the time of attachment, but not delivered to any particular party. That withdrawal order was dated 11-10-1962.
The present application is a Revision by the applicant challenging the Magistrate's order dated 11-10-1962. The applicant's counsel sought (a) review of the propriety of the civil court's finding on the reference and (b) in the alternative, review of the Magistrate's order making the reference to the civil court. The High Court considered whether it could, in revision, quash either the civil-court finding or the Magistrate's orders in order to resolve the difficulties that had arisen.
Legal Issues Presented
- Whether the High Court, in revisional jurisdiction, can set aside or review the civil court's finding made on a reference under Section 146, Cr. P.C.
- Whether the Magistrate's earlier order (the reference to the civil court under Section 145/146, Cr. P.C.) was proper and whether that order could now be challenged in revision.
- What interim or final order the Magistrate should have made — specifically, whether the attachment should have been withdrawn or continued pending resolution — given that the civil court recorded that none of the rival parties proved possession.
Arguments of the Parties
Applicant's Arguments
- The applicant's counsel asked the High Court to examine the propriety of the civil court's finding that neither party had proved possession, and, alternatively, to scrutinize the Magistrate's decision to refer the question of possession to the civil court.
- Counsel for the applicant relied upon the Full Bench decision of the Patna High Court in Raja Singh v. Mahendra Singh (A.I.R. 1963 Pat. 243) (as cited in the opinion) in support of submissions advanced (the opinion records that reliance was placed on that decision).
The opinion does not record specific or detailed arguments advanced by the respondent(s) in opposition.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Raja Singh v. Mahendra Singh, A.I.R. 1963 Pat. 243 | Supports the view that a finding of the civil court on a reference under Section 146, Cr. P.C. is not subject to review or revision. | The Court noted reliance on this Full Bench decision and stated there was no reason to depart from the consistent view that such civil-court findings are final in the context of appeals, reviews or revisions. |
| Muthu Sethurayar v. Louduswami Odayar, A.I.R. 1959 Mad. 111 | Illustrates a similar observation that the civil court's finding on a reference is not subject to review or revision in the revisional proceedings of the criminal court. | The Court observed that similar observations had been made in this precedent and relied on it to reinforce the point that revision cannot be used to challenge the civil court's finding made on a reference under Section 146. |
Court's Reasoning and Analysis
The Court proceeded through a sequence of legal and practical considerations:
- Nature and purpose of reference: The Court explained that a reference to the civil court under Section 145/146, Cr. P.C. is intended to expedite the summary disposal of the possession question so that the summary criminal proceeding can be brought to an end without delay. The civil court is expected to pass a summary finding on possession so that law and order may be maintained and an aggrieved party can pursue remedies in a competent court thereafter.
- Finality of civil-court findings on reference: Sub‑section (1‑D) of Section 146, Cr. P.C. (cited in the opinion) makes it clear that no appeal, review or revision lies from a civil-court finding made on a reference under that section. Because the legislature made such findings final (not subject to appeal, review or revision), the High Court in revision cannot set aside or re‑examine that civil-court finding. The Court expressly held that a revisional court cannot do indirectly what the statute directly prohibits.
- The Munsif's course: The Court found that the Munsif did not act in accordance with the spirit of the law by recording that none of the rival parties had proved possession. In ordinary circumstances the civil court should be able to record a summary finding as to which party was in possession (or that possession is of the Gram Samaj, if that was the case). The particular finding made by the Munsif was unusual, but despite its impropriety the revisional court could not set it aside in revision.
- Limitations on revisional interference with the Magistrate's earlier reference: The Court noted practical limits on revisional interference with the Magistrate's August 1962 order making the reference. It observed that allowing a party to challenge an order after having submitted to it at the time it was passed (and after a lapse of six months) would be improper. Consequently, the Court declined to interfere with the Magistrate's order that he made because he was unable himself to record a finding on possession.
- Practical problem and risk to public peace: Because the civil court had returned a final finding that neither party had proved possession, a vacuum would result if the attachment were simply released: possession must be given to one party or the other and releasing the property without further order could provoke breach of the peace by competing parties seeking forcible possession.
- Use of inherent jurisdiction to avoid a statutory gap: The Court recognized that the Code of Criminal Procedure did not contemplate the precise situation that had arisen (a final civil-court finding that effectively created a vacuum). In such cases not covered by the statute, courts can exercise inherent jurisdiction to do justice and pass equitable orders. The Court concluded that an equitable step was required to prevent prejudice and maintain order.
- Appropriate interim remedy: Given the circumstances and on the assumption that the civil-court finding was proper (i.e., that none of the parties was in possession on the date of the preliminary order), the Court held that continuation of the attachment would not prejudice the parties. The Court directed that the attachment should continue until the Magistrate is in a position to pass a suitable order or until the question of title or possession is decided by a competent court. If the civil-court finding is quashed in an appropriate proceeding, the Magistrate may obtain a fresh finding and then pass orders under Section 146 accordingly.
Holding and Implications
Holding: The Revision application was allowed. The impugned order dated 11-10-1962 of the Sub‑Divisional Magistrate, Gyanpur (which had dropped the Section 145 proceeding and directed withdrawal of the attachment) was set aside. The property in dispute was ordered to remain under attachment; if already released it was to be attached again. The parties remain free to seek other remedies.
Implications
- Direct effect on the parties: The immediate practical consequence is restoration/continuation of the attachment over the two agricultural plots until the Magistrate can pass a suitable order or a competent court decides the question of title or possession.
- Scope of revisional jurisdiction: The judgment reiterates that findings of a civil court on a reference under Section 146, Cr. P.C. are final and not open to appeal, review or revision in the revisional proceedings of the High Court; the revisional court cannot re-examine such findings, though extraordinary constitutional jurisdiction (Articles 226/227) remains available in suitable cases (the Court did not pursue that route here).
- No new broad precedent announced: The Court applied existing statutory rule and earlier authorities (as cited) and fashioned an equitable interim remedy to meet a statutory gap. The opinion addresses the specific factual situation and orders continuation of attachment; it does not purport to announce a novel or general principle beyond applying the existing statutory bar and the Court's inherent equitable power in exceptional circumstances.
Disposition: Revision allowed.
Mathur, J.:— This is an application in Revision by Badri Nath Pandey to challenge the order dated 11-10-1962 of the Sub-Divisional Magistrate, Gyanpur, Varanasi, whereby the proceeding u/s. 145, Cr. P.C was dropped, the attachment of the property in dispute was withdrawn and the property was to be left as it was found at the time of the attachment, though it was not to be handed over to any particular party.
2. The facts of the case, in brief, are that apprehending breach of peace the applicant, Badri Nath Pandey, moved the Magistrate for taking proceeding u/s. 145, Cr. P.C with regard to two agricultural plots. The Magistrate was satisfied that there was an imminent danger of the breach of peace and, therefore, passed a preliminary order as contemplated by Sec. 145, Cr. P.C and also attached the plots. Parties were called upon to file their written statements and also affidavits. The Magistrate was, however, not in a position to come to a decision as to which party was in possession or could be deemed to be in possession on the date of the preliminary order and, therefore, made a reference to the civil court for recording a finding on possession. This order of the Magistrate was passed on 6-8-1962. The Reference was heard by the Munsif of Gyanpur, and he was also unable to record a finding as to possession of the rival parties. On receipt of this finding, the Magistrate found himself in difficulty as Secs. 145 and 146, Cr. P.C made no provision for such a finding of the civil court. The Magistrate then passed the impugned order withdrawing the attachment and directing the property to be left as before without its being delivered to either of the parties. The learned Advocate for the applicant wants me to look into the propriety of the finding of the civil court and, in the alternative, the propriety of the earlier order of the Magistrate making a reference to the civil court. The suggestion thus made is that this Court may somehow exercise the revisional jurisdiction to quash one or the other order so that difficulties being faced may be got over.
3. It is true that the Munsif has not acted in accordance with the spirit of the law. A provision for reference to the civil court was made to expedite the disposal of proceeding u/s. 145, Cr. P.C Any order passed by the civil court is final in the sense that no one can challenge that finding in appeal or revision, though he can challenge it in a regular suit to be instituted before a competent court. The civil court has to pass a summary order so that proceeding u/s. 145, Cr. P.C may come to an end without any delay; and after a suitable order has been passed to maintain law and order, the aggrieved party can seek remedy before a competent court.
4. Civil court is meant to record and invariably does record a finding on the rights and claims of the parties. Where the plaintiff is not able to establish his case, his suit can be dismissed. The same principle could be applied to a summary proceeding. When the civil court has to come to a judicial decision in regular suits, no difficulty should have been felt in recording a summary finding of possession on a reference made to the civil court u/s. 145, Cr. P.C In the instant case the Munsif adopted an unusual course by recording the finding that none of the rival parties had proved his possession. There were only two persons who were claiming possession to the land and one of them would have been in possession. If the land belonged to the Gram Samaj, the possession could be deemed to be of the Gram Samaj. However, the finding of the civil court is not one which this Court can, in exercise of its revisional jurisdiction, set aside. Sub-Sec. (1-D) of Sec. 146, Cr. P.C makes it clear that 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 such a finding be allowed. When the legislature made the finding of the civil court final, not subject to appeal, review or revision, this Court cannot by an indirect manner adopt a different course. Such a provision does not take away the extraordinary jurisdiction of the High Court under Art. 226 or 227 of the Constitution of India and in suitable cases this Court may consider exercising that jurisdiction; but the finding of the civil court cannot be challenged in revision, even though the order of the civil court appears to be improper Beyond this I shall not like to make any observation. This Court while exercising revisional jurisdiction cannot go into the propriety of that finding. It must pass a suitable order on the finding given by the civil court.
5. The learned Advocate ??? the applicant placed reliance ??? the Full Bench decision of the Patna High Court in Raja Singh v. Mahendra Singh A.I.R 1963 Pat. 243.. This Court ??? throughout taken the consisted view that the finding of the civil court on a reference made to it u/s. 146, Cr. P.C is not subject to ??? review or revision, even when party is challenging the final order of the Magistrate based on the finding of the civil court. There is ??? reason for me to depart from ??? view, all the more, when the provisions of the law are clear and are not capable of more than one interpretation. It is a settled rule that one cannot do indirectly what is directly prohibited. When the law prohibits the parties from challenging the finding of the civil court in appeal, review or revision, the revisional court cannot go into the propriety of that finding in a revision made to challenge the final order of the Magistrate based on the finding of the civil court. Similar observation was made in Muthu Sethurayar v. Louduswami Odayar A.I.R 1959 Mad. 111..
6. If this Court now goes into the propriety of the order of the Magistrate passed in Aug. 1962, it shall permit the party to challenge an order to which he had submitted at the time the order was passed. No one can be permitted to blow hot and cold at the same time. In the circumstances, the Magistrate's order passed in August 1962 cannot allowed to be challenged in the present Revision after a lapse of six months. Further, this Court shall ??? be justified to interfere with the Magistrate's order where he finds himself unable to record a finding ??? possession.
7. A consideration of the provisions of Secs. 145 and 146, Cr. P.C makes it clear that the final order ??? be passed by the Magistrate is one ??? one party or the other to have been in possession or to be ??? to have been in possession ??? the date of the preliminary order and to direct the delivery of possession to him. At the same time it ??? to be ordered that his possession ??? not be disturbed until evicted ??? in due course of law. ??? the Magistrate is able to ??? as to which of the parties was ??? possession on the material date, ??? can pass an order as contemplated by sub-Sec. (6) of Sec. 145, Cr. P.C after recording a finding on possession. But where he is unable to decide the question of possession, he makes a reference to the civil court which has to give a finding on the possession of the rival parties. It is expected that the civil court would be able to come to a decision and be able to say as to which of the contending parties was, in the eye of law, in possession on the date of the preliminary order. On receipt of such a finding the Magistrate passes an order which he would have passed had he himself been in a position to decide that question. Naturally, therefore, the attachment cannot continue for an indefinite period. It continues till the passing of an order contemplated by sub-Sec. (6) of Sec. 145, Cr. P.C
8. However, in the instant case complication has arisen on account of the civil court not being able to say as to which of the parties was in possession and its finding being final not subject to appeal, review or revision. Mere release of the attachment shall not serve any purpose. There cannot be a vacuum, Possession has to be given to one party or the other. Further, release of the attached property without any further order can still cause breach of the peace as the two parties, and may be others also, may try to take forcible possession thereof.
9. Inherent power can be exercised in cases not covered by the law, i.e to do justice in the case. As the legislature did not contemplate a situation of the present nature, no provision to meet such a situation was made in the Code of Criminal Procedure; and when there is no provision in the Code, Courts of law can pass an equitable order in the exercise of the inherent jurisdiction.
10. The Magistrate dropped the present proceeding which was permissible only if there was no likelihood of the breach of peace. The Magistrate nowhere says that though there existed a dispute which was likely to cause breach of the peace, no such dispute existed at the time of the final order. Continuity of existing conditions can be assumed unless proved to the contrary and, consequently, when there did exist a dispute in the past, the Courts of law shall have to act on the assumption that the dispute continues unless it is clear from the evidence of the parties that the dispute had ceased to exist. The proceeding could not, therefore, be dropped and it was necessary to pass some final order with regard to possession which, in the special circumstances of the case, would include continued attachment of the plots.
11. By the plots remaining under attachment none of the parties shall be prejudiced. This observation is being made on the assumption that the finding of the civil court is proper and none of the parties were in possession of the land. He is the person in possession on the date of the preliminary order who can suffer a loss by the continued attachment. The most suitable order to be passed in the circumstances of the case, therefore, is that the attachment of the plots shall continue till the Magistrate is in a position to pass a suitable order, or the question of title or possession is decided by a competent court.
12. The Magistrate shall also be able to pass further order if in an appropriate proceeding the finding of the civil court is quashed and it is directed to submit a fresh finding in accordance with the law.
13. Then the Magistrate can pass an order as contemplated by Sec. 146, Cr. P.C, but for so long as the finding of the civil court stands, the Magistrate cannot pass any further order though he shall be in a position to deal with the attached property after the decision of the dispute by a competent court.
14. The Revision application is hereby allowed and the impugned order dated 11-10-1962 of the Sub-Divisional Magistrate, Gyanpur, is set aside. The property in dispute shall remain under attachment and if already released shall be attached again. It shall be open to the parties to seek such other remedy as they may be advised, and the Magistrate can in due course pass further orders in accordance with the law keeping the observations made above in mind.
15. Revision allowed.
Alert