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Citation Codes
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Case Number
Attorney(S)
  • Kameshwari Nandan Singh
Judges
  • Anant Singh
  • G.N Prasad, JJ.
Acts
  • sections 145 and 146 of the Code of Criminal Procedure.
  • section 146(1) of the Code of Criminal Procedure
  • sub-section (1B) of section 146,
  • sub-section (4) of section 145;
  • provisions of section 116(1)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Kameshwari Nandan Singh
Judges
  • Anant Singh
  • G.N Prasad, JJ.
Acts
  • sections 145 and 146 of the Code of Criminal Procedure.
  • section 146(1) of the Code of Criminal Procedure
  • sub-section (1B) of section 146,
  • sub-section (4) of section 145;
  • provisions of section 116(1)
See more information ...
Smart Summary

Summarized Opinion (Anant Singh, J.) — Reference under Sections 145/146 CrPC

Factual and Procedural Background

This matter originated as a reference made by the Sub-divisional Magistrate (S.D.M.), Mr. S.N. Varma of Araria, by an order dated 15-2-1960. The S.D.M. had drawn up a direction that the lands in dispute, attached under section 146 of the Code of Criminal Procedure (CrPC), be sent to the Munsif of Araria for needful, and directed the parties to appear before the Munsif on 1-3-60. The S.D.M.'s order stated that a title suit was pending between the parties and referred to Rugga Natha v. Moona Nanda (AIR 1959 Raj 153) in support of his view.

Before the Munsif, the first party objected that the reference by the S.D.M. was not made in accordance with Section 146(1) CrPC. The Munsif found the objection to appear valid and consequently framed three questions for determination: whether a Magistrate may refer a case under section 146(1) to a civil court without drawing up a statement of facts and expressing inability to decide possession; whether a civil court may return such a reference if not in accordance with law; and whether a civil court may decide possession on such a reference.

The present opinion records the High Court's review of statutory provisions in Sections 145 and 146 CrPC, consideration of earlier case law cited, and concludes by quashing the S.D.M.'s order of reference dated 15-2-1960 and directing the magistrate to proceed to dispose of the Section 145 proceeding according to law (or to stay it pending the title suit if he deems fit). The learned Munsif was directed to send back the records to the Magistrate.

Legal Issues Presented

  1. Whether it is open for a Magistrate to refer a case under section 146(1) of the CrPC to a Civil Court without drawing up a 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 CrPC.
  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.

Arguments of the Parties

First Party's Arguments

  • The first party objected before the Munsif that the reference made by the Sub-divisional Magistrate was not proper because it had not been made in accordance with the provisions of Section 146(1) CrPC (i.e., the magistrate had not complied with the statutory requirements for making a valid reference).

Second Party's Position

  • The record indicates that the second party did not file anything in the Magistrate's proceedings and therefore no detailed counterarguments by the second party are recorded in the opinion.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Rugga Natha v. Moona Nanda, AIR 1959 Raj 153 Relied upon by the Magistrate (per his order) to justify referring the matter to the Civil Court where a title suit between the parties was pending. The Court noted that the Magistrate invoked this Rajasthan decision but declined to accept the Magistrate's interpretation: the pendency of a title suit does not absolve the Magistrate from complying with Sections 145 and 146 CrPC (the Court considered the Rajasthan decision distinguishable and not binding for the proposition that a pending title suit automatically requires referral).
Shreedhar Thakur v. Kesho Sao, 1962 B.L.J.R. 267 at 272 (AIR 1962 Pat 468 at p. 471) Established that a Magistrate cannot refer under section 146(1) merely to shift responsibility; referral is permissible only when the contingencies mentioned in the subsection arise. The Court relied on this Division Bench statement to support the proposition that the Magistrate must try to form his own independent opinion on possession and cannot refer merely to avoid deciding; the opinion is quoted and adopted to hold the present reference incompetent.
Unspecified decision of the Rajasthan High Court (referred to by the learned Magistrate) Cited by the learned Magistrate to justify referral because a title suit was pending between the parties. The Munsif attempted to distinguish its facts and treated the opinion as obiter; the High Court in this opinion stated it was not inclined to follow the view that pending title suit alone justifies referral and therefore did not accept that decision as a controlling authority here.

Court's Reasoning and Analysis

The Court's reasoning proceeds from a close reading of the statutory scheme in Sections 145 and 146 of the Code of Criminal Procedure:

  1. Section 145 procedure: The Court recites that under Section 145(1) parties are required to place documents or affidavits and that the Magistrate, under Section 145(4), must peruse statements, documents and affidavits, hear parties and conclude the inquiry and, if possible, decide which party was in possession at the relevant date.
  2. Section 146 requisites: The Court cites Section 146(1) and (1A), emphasizing that a Magistrate may attach and refer the matter to a Civil Court only when the Magistrate, after consideration of evidence, is of the opinion that none of the parties was in possession or he is unable to decide which party was in possession; and that upon making such a reference the Magistrate must draw up a statement of facts and forward the record.
  3. Obligation on the Magistrate to apply his mind: The Court holds it is obligatory for the Magistrate to form his independent opinion on possession after taking evidence (affidavits/documents) before making a reference. The Magistrate cannot make a reference simply to shift responsibility or because a title suit is pending.
  4. Application to the present facts: The Court found the present case worse than a previously criticized case because here there was no evidence placed on the record before the Magistrate and no statement of facts was drawn up. The Magistrate's order shows he made the reference after the first party filed a written statement seeking time to file affidavits and the second party filed nothing, and because he noted a title suit pending between the parties.
  5. Pendency of title suit: The Court analysed and rejected the contention that a pending title suit absolves the Magistrate of the duty to follow Sections 145 and 146. It held that the pendency of a title suit does not justify a Magistrate referring a Section 145 proceeding to a Civil Court without first complying with statutory requirements; the two proceedings (civil title suit and quasi-criminal Section 145) are different and decisions in one are not binding on the other except in limited circumstances.
  6. Competence of Civil Court to review the reference: The Court held that the Civil Court is not a court of appeal over the Magistrate and has no jurisdiction to pronounce on the propriety of a Magistrate's reference; that question is for a higher court having appropriate jurisdiction. However the Civil Court may communicate to the Magistrate its opinion by letter and the Magistrate may recall the reference if he accepts the Civil Court's view.
  7. Practical disposition: Given the procedural failures (no evidence taken, no statement of facts drawn up), the Court concluded the Magistrate's reference was incompetent. Therefore any decision by the Civil Court on such a reference, even if it took fresh evidence, would be without jurisdiction.
  8. Procedural recourse: The Court noted that this matter appropriately came to the High Court (and can be considered under Section 435 CrPC) and took steps to quash the incompetent reference.

Holding and Implications

Holding:

The order of reference dated 15-2-1960 made by the learned Sub-divisional Magistrate is set aside and quashed.

Immediate consequences and directions:

  • The Magistrate is directed to proceed to dispose of the Section 145 CrPC proceeding according to law, unless he chooses to stay that proceeding until the disposal of any pre-existing title suit between the same parties and relating to the same property.
  • The learned Munsif is directed to send back the records of the case to the learned Magistrate.
  • The Court made clear that a civil court lacks jurisdiction to decide the propriety of a Magistrate's reference under Section 146(1) CrPC; that jurisdiction belongs to a higher court. Nevertheless, a civil court may communicate its view to the Magistrate by letter, and the Magistrate may recall the reference if he accepts that opinion.

The opinion confines itself to setting aside the specific order of reference and directing the magistrate to proceed in accordance with statutory procedure. The judgment does not purport to state that it is laying down a broad new precedent beyond the application of Sections 145 and 146 CrPC to the facts before the Court.

Show full summary ...

    State Of Bihar v. Hari Mishra And Another Opposite Party.

    Anant Singh, J.:— 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 Cr PC. 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 files 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 fortified in this view by Rugga Natha v. Moona Nanda, AIR 1959 Raj 153 (1). The lands in dispute are attached under section 146 of the Cr PC. Send the record to the Munsif Araria for needful Parties directed to appear before him on 1-3-60”.

    2. 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) of the Cr PC. 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 PC 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 PC.

    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”.

    3. Section 145 of the Cr PC lays down the procedure how the proceeding is to be conducted. As provided in sub-s. (1), the parties are required to put in their documents or to adduce, by putting 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 parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any so put 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……

    4. 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 a date to be fixed by him.

    (1A) On receipt of any such reference, the Civil Court shall peruse the evidence on record and lake 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.

    5. 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 sub-section (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 lake 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”

    6. 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 lie incompetent. The instant case is worse, in that as the learned Munsif has pointed out, I here was no evidence put on the record whatsoever. The learned Magistrate has no I drawn up even a statement of the facts of the case. As will appear from the relevant order of the teamed magistrate, himself, it was only after the first party filed its written statement and wanted time to file affidavits and second party 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.

    7. The fact that any title suit was pending, although it is disputed that 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 of the Cr PC, 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 Cr PC would not affect the decision in the subsequent proceeding under Section 145 of the Cr PC, if the decision in such a proceeding came later than the decision in the title suit.

    8. In such a contingency, technically speaking, the decision in the subsequent proceeding under Section 145 of the Cr PC 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 I 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 Cr PC.

    9. The decision in a proceeding under section 145 of the Cr PC, is a decision only about possession and gas 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 116(1) of the Cr PC, is incompetent, even though a title suit between the same parties and with regard to the same mailer might be pending from before. As to the case of the Rajasthan High Court, which was relied upon by the 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 of the Cr PC, the Magistrate should refer the matter to a Civil Court.

    10. 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.

    11. 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 Cr PC, 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.

    12. 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.

    13. 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. 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 Cr PC involving apprehension of breach of peace, drawn up in December 1959, has ever since remained pending.

    G.N Prasad, J.:— I agree.

    GH/VRB/RGD

    14. Order set aside.

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    Comments

    State Of Bihar v. Hari Mishra And Another Opposite Party.
    (May 8, 1964)