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Attorney(S)
  • Bindeshwari Prasad Sinha
  • Guneshwar Prasad
  • for Oppo. parties
Judges
  • Ahmad
  • Misra, JJ.
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  • Bindeshwari Prasad Sinha
  • Guneshwar Prasad
  • for Oppo. parties
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  • Ahmad
  • Misra, JJ.
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Smart Summary

Judgment Summary — Competency of Civil Court for Reference under Section 146 of the CrPC

Factual and Procedural Background

This application arises from proceedings under Section 145 of the Criminal Procedure Code (CrPC). The central dispute concerned the competency of the Civil Court to which a Magistrate had referred a question of possession under Section 146(1) CrPC.

The order under revision shows that the value of the property in dispute was perhaps more than Rs. 4,000/-. The Magistrate made a reference, under Section 146, to a Munsif whose admitted pecuniary jurisdiction extended only up to Rs. 1,000/-. A preliminary objection was raised in the Munsif's Court that because the value exceeded Rs. 1,000/-, that Court lacked jurisdiction to hear the reference.

The Munsif, after hearing parties, held that the word "competent" in Section 146 meant the court of competent territorial jurisdiction and that Section 6 of the Code of Civil Procedure (CPC) applied to suits and not to a proceeding of this nature; accordingly the objection was held not tenable. The present petition challenges that order.

Legal Issues Presented

  1. Whether the expression "Civil Court of competent jurisdiction" in Section 146(1) CrPC refers to territorial jurisdiction alone, or includes pecuniary jurisdiction as well.
  2. Given the above, whether the Munsif (whose pecuniary jurisdiction was limited to Rs. 1,000) was competent to hear the reference made under Section 146(1) CrPC concerning property apparently valued at more than Rs. 4,000.

Arguments of the Parties

Petitioner's Arguments

  • The learned Munsif was not competent to hear the reference because the value of the property exceeded the pecuniary jurisdiction of that Court (value > Rs. 4,000; Munsif's pecuniary limit Rs. 1,000).
  • The petitioner relied on earlier decisions (enumerated in the opinion) purporting to show that competency of a Civil Court includes pecuniary limits as contemplated by Section 6 CPC.

Respondent / Munsif's Position (as recorded)

  • The Munsif held that the term "competent" in Section 146 meant a court of competent territorial jurisdiction and that Section 6 CPC, dealing with pecuniary limits, applies to suits and not to a proceeding of this character.
  • Accordingly, the preliminary objection based on pecuniary jurisdiction was held not tenable and the Munsif proceeded to hear the reference.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Thakur Prasad v. Fakir Ullah, 22 Ind App 44 (PC) Interpretation of S.141 CPC — that S.141 covers original matters in the nature of suits (matters originating in themselves), not those arising from other proceedings. The court relied on this interpretation to distinguish references under S.146 CrPC (which are not suits/original matters) from S.141 matters; thus S.141 jurisprudence was not directly applicable to the S.146 reference.
Sarat Krishna Bose v. Bisweswar Mitra, AIR 1927 Cal 534 Support for the interpretation of S.141 described above (matters of the nature of suits). Used to reinforce that a reference under S.146 CrPC is not within the class of matters contemplated by S.141 and hence is not subject to the same CPC-based pecuniary constraints.
Shamsunder Saha v. Anath Bandhu Saha, ILR 37 Cal 574 Decisions dealing with pecuniary jurisdiction where a decree is transferred for execution (or similar provisions) and the scope of "suit" under Section 6 CPC. The court held this and similar cases concerned execution/transfer matters and the application of Section 6 CPC to suits and execution proceedings; they were found not applicable to references under S.146 CrPC.
Gokul Kristo Chundar v. Aukil Chunder Chatterjee, ILR 16 Cal 457 Same general category as above — pecuniary jurisdiction in execution/transfer contexts. Not applied: treated as decisions about transferred decrees/execution where Section 6 CPC considerations operate; therefore not relevant to S.146 references.
Amrit Lal v. Muriidhar, AIR 1922 Pat 188 Again, related to pecuniary jurisdiction in the context of execution or similar civil processes. Held inapplicable for the present point because it relates to transfer/execution of decrees rather than the limited inquiry ordered under S.146 CrPC.
Firm Ganeshdas Badrinarain v. Amuluk Chanel, AIR 1940 Cal 161 Also concerned with the application of pecuniary jurisdiction principles to civil proceedings connected with suits or their execution. Deemed not of assistance; decision based on principles about suits/execution and not on the limited reference mechanism in S.146 CrPC.
Basant Lal… v. Chiranji… , AIR 1934 All 86 Reference made by a revenue Court; examined whether CPC procedure applied — addressed whether such a reference was of the character contemplated by S.141 CPC. The court noted this case involved S.141-type proceedings (so CPC procedure applied); it was not a decision about pecuniary jurisdiction under S.146 CrPC and thus did not directly resolve the present question.
Rameshwar Singh v. Raghunath Singh, ILR 35 Cal 571 Reference under Section 55 of the Land Registration Act; the District Judge's transfer to Munsif raised a pecuniary jurisdiction objection and the High Court discussion suggested pecuniary objection might be valid. The court observed the discussion in that case was scanty and did not engage the question whether Section 6 CPC applied to a reference like that; accordingly it did not provide decisive guidance for the present S.146 CrPC issue.

Court's Reasoning and Analysis

The court proceeded by first setting out the relevant statutory provisions: S.145(6), S.146(1) and sub-clause (1B) of Section 146. From the language of these provisions the court drew a number of legal conclusions:

  1. Nature of the reference: The court found that a reference under Section 146(1) CrPC is for a limited purpose — to obtain from a Civil Court a finding as to which party was in possession of the subject of dispute at the date of the Magistrate's order. The reference does not transfer the whole criminal proceeding to the Civil Court.
  2. Retention of criminal character: Even when a reference is made, the original criminal proceeding remains with the Magistrate. The Civil Court's finding is transmitted back to the Magistrate, who must then dispose of the Section 145 proceeding in conformity with that finding. Thus the criminal Court retains final seisin and control of the overall proceeding.
  3. Discretion of the Magistrate: The Magistrate retains discretion under the proviso to Section 146(1) to drop the criminal proceeding and withdraw any attachment even while the reference is pending, reinforcing that the reference does not convert the criminal proceeding into a civil suit.
  4. Limited reach of Section 6 CPC: Section 6 CPC (which limits a civil court's jurisdiction by pecuniary value) applies "in so far as is otherwise expressly provided" and is primarily engaged in the context of suits or proceedings that are in continuation of suits (for example, execution). The court reasoned that Section 6's pecuniary restriction is directed to suits and proceedings arising from suits, not to a reference of the type envisaged by Section 146 CrPC.
  5. Distinguishing precedents: The court examined earlier cases relied upon by the petitioner and concluded most of them concerned (a) the pecuniary jurisdiction of courts to which decrees were transferred for execution, or (b) references of the S.141 type or revenue/land-registration references where CPC procedure was held applicable. Since a S.146 CrPC reference is not a suit, nor a proceeding of the S.141 character, those precedents were held not to govern the present question.
  6. Practical and policy considerations: The court noted practical difficulties that would follow if pecuniary jurisdiction were required to be ascertained for S.146 references (e.g., referring Magistrate being compelled to fix value, recording fresh evidence, potential collateral challenges, the civil court possibly having to remit because of pecuniary incapacity). These considerations supported construing "competent" as referring to territorial competence only.
  7. Concurrent territorial jurisdiction among civil courts: The court recognized a potential lacuna where civil courts of different grades share territorial jurisdiction; it concluded that under the present statutory language such courts have concurrent jurisdiction for purposes of S.146 references and a Magistrate may validly refer to any of them, though by practice the Magistrate should normally refer to the lowest grade appropriate to avoid over-burdening higher Courts.
  8. Concurrence: The concurring judge (Misra, J.) emphasized that Section 145/146 CrPC are exclusively concerned with territorial jurisdiction, described the Civil Court's role as a "friendly Tribunal" or amicus assisting the Criminal Court for a limited purpose, and highlighted the legislature's exclusion of appeal/review/revision against the civil court's finding under sub-s.1(c) as reinforcing the limited character of the referral mechanism.

Holding and Implications

Holding: The application is dismissed. The Court held that the expression "Civil Court of competent jurisdiction" in Section 146(1) CrPC refers to competence in territorial terms and does not include pecuniary jurisdiction limitations under Section 6 CPC for the purpose of such references. Consequently, the Munsif in this case was competent to hear the reference despite his limited pecuniary jurisdiction.

Implications:

  • The direct effect is that the petitioner's objection to the Munsif's competency on pecuniary grounds was rejected and the petition was dismissed; there was no order as to costs.
  • The Court clarified that references under Section 146(1) CrPC are of a limited character (a civil court gives a finding on possession) and do not convert the criminal proceeding into a civil suit — the criminal Court retains final disposal powers.
  • The opinion indicates that multiple Civil Courts of different grades within the same territory will, under the current language, be treated as having concurrent territorial jurisdiction for the purposes of S.146 references; a referring Magistrate may choose any such Court (although, as a matter of administrative prudence, the Magistrate should usually refer to the lowest grade Court appropriate).
  • The Court observed a legislative lacuna concerning choice among civil courts of different grades sharing territorial jurisdiction and suggested that the Legislature might address that point; however, no change in law was effected by the Court itself.
  • No new broad precedent changing the law of civil pecuniary jurisdiction in suits was created; the decision confines itself to the interpretation of "competent jurisdiction" in the limited context of S.146(1) CrPC references.

Disposition: Petition dismissed. (Per Ahmad, J.; concurrence by Misra, J.)

Show full summary ...

    Bodh Narain Prasad v. Deo Narain Singh And Others Opposite Parties.

    Ahmad, J.:— This application arises out of a proceeding under Section 145 of the Cr PC, and the point raised is whether the competency of a Civil Court, as provided in Section 146 of the Cr PC consists in; its territorial jurisdiction alone or also in its pecuniary jurisdiction.

    2. The facts, as stated in the order under revision, show that the value of the property in dispute was perhaps more than Rs. 4,000/- and the reference, as provided under Section 146 of the Cr PC, had been made by the Magistrate, before whom the proceeding under Section 145 of the Cr PC was originally pending, to a munsif whose pecuniary jurisdiction., admittedly extended only up to Rs. 1000/- in those circumstances a preliminary objection was raised in the Court of the Munsif that as the value of the property involved in the reference was more than Rs. 1,000/- that court had no jurisdiction to hear the reference. The Munsif, however, on hearing the parties came to the view that “the word ‘competent’ means the competent court of territorial jurisdiction and Section 6 of the CPC will apply to suits and not to a proceeding” and accordingly held that the objection was not tenable in law. And it is against this order that the present rule has been issued.

    3. Before however, I enter into the discussion of the question raised, I think it is necessary to set out the relevant provisions of the Code of Criminal Procedure bearing on the subject. Clause (6) of Section 145 of the Cr PC provides:

    “145(6) If the Magistrate decides that one of the parties was or should under the second proviso to sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the second proviso to sub-section (4) may restore to possession the party forcibly and wrongfully dispossessed.”

    4. Thereafter S. 146(1), so far as is relevant for the purpose of this case, states:

    “146(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 proceedings 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 S. 145, and he shall direct the parties to appear before the Civil Court on a date to be fixed by him.”

    5. And finally sub-clause (IB) of that section directs that on the conclusion of the inquiry the Civil Court will “transmit its finding together with the record of the proceeding to the Magistrate by whom the reference was made; and the Magistrate shall, on receipt thereof, proceed to dispose of the proceeding under section 145 in conformity with the decision of the Civil Court.” These provisions, in my opinion, make it clear that notwithstanding the reference, if any, made to the Civil Court, for a finding on the point of possession, the proceeding itself at no stage is ever transferred as a whole to the civil Court, so much so that on receipt of the opinion from the Civil Court, it is again the criminal Court which finally disposes of that application.

    6. Further, even while it is pending there it lies within the discretion of the criminal Court, if it so likes as is provided in the proviso to section 146(1) of the Cr PC, to drop the proceeding finally and to withdraw the attachment. That means, the proceeding even on reference made to the Civil Court on the point of possession retains its old moorings and does not change its character from a criminal proceeding to a civil proceeding and is as such all along kept in the seizin of the criminal Court for its final conclusion.

    7. If that is so then what is referred to a I Civil Court under section 146(1) of the Cr PC is neither a suit, as contemplated under the Code of Civil Procedure, nor a proceeding as provided in its S. 141, for S. 141, as interpreted by their Lordships of the Privy Council in Thakur Prasad v. Fakir Ullah, 22 Ind App 44 (PC) (A), is meant to include original matters in the nature of suits, namely, matters which originate in themselves and not those which spring up from a suit or from some other proceeding or arise in connection therewith Sarat Krishna Bose v. Bisweswar Mitra, AIR 1927 Cal 534 (B). Therefore, in coming to a true decision on the point raised here what has to be considered is whether in a proceeding like the one stated above the jurisdiction of a Civil Court rests exclusively on territorial consideration or both on territorial and pecuniary.

    8. Generally speaking, no doubt, it is true that the competency of a Civil Court under the Code of Civil Procedure cannot be determined irrespective of its pecuniary jurisdiction. But the language of S. 6 whereunder the Code of Civil Procedure deals with the pecuniary jurisdiction of Civil Court is rather limited in its scope. It says:

    “6. Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suite the amount or value of the subject matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.”

    9. This shows that the consideration of pecuniary jurisdiction in the case of jurisdiction of a Civil Court arises in the case of suits alone or at best for that reason in the case of those proceedings which are in continuation of suits or arise therefrom but in no case in the case of those which are neither suits nor arise there from or are connected therewith. Therefore, in my opinion, a reference made under Section 146(1) of the Cr PC to a Civil Court not being either a suit or a proceeding, as held above, cannot be put to any limitation of pecuniary jurisdiction nor there is any indication either in that section or in Section 6 of the CPC in support of any construction like that. That being so, the contention, raised in this case on behalf of the petitioner that the learned Munsif to whom the reference was made is not competent to hear it fails. As for the decisions relied upon in support of that contention, namely, those in Shamsunder Saha v. Anath Bandhu Saha, ILR 37 Cal 574 (C); Gokul Kristo Chundar v. Aukil Chunder Chatterjee, ILR 16 Cal 457 (D); Amrit Lal v. Muriidhar, AIR 1922 Pat 188 (E); Firm Ganeshdas Badrinarain v. Amuluk Chanel, AIR 1940 Cal 161 (F); Basant Lal…(Defendant); v. Chiranji…(Plaintiff).*, AIR 1934 All 86 (G) and Rameshwar Singh v. Raghunath Singh, ILR 35 Cal 571 (H) it is enough to say that they do not apply to the facts of this case. The first four cases deal with the pecuniary jurisdiction of a Court to which a decree is transferred for execution either under Section 39 of the CPC or some such similar provision provided in other Acts and the decision in those cases is broadly speaking based on the principle that the word ‘suit’ as contemplated in Section 6 of the CPC is not limited only to the proceedings in cause up to the passing of the decree but on the other hand covers all its proceedings including those in execution. Therefore, they are not of any assistance in disposing of the present case. In the case reported in AIR 1934 All 86 (G), the reference made to the Civil Court was by a revenue Court, and in those circumstances the question raised was whether the provision of the Code of Civil Procedure applied to that proceeding. In answer thereto the learned Judges held that it was a proceeding of a character as contemplated under S. 141 and therefore the procedure laid down in the Code of Civil Procedure did apply to it. So the decision in that case is not based on the consideration of jurisdiction. In the last case, namely, the one reported in ILR 35 Cal 571 (H), the reference was under Section 55 of the Land Registration Act and originally the Land Registration Court had referred it to the District Judge. The District Judge in his own turn, however, transferred it to the Court of the Munsif whose pecuniary jurisdiction was less than Rs. 2000/-. But as the value of the property involved in the proceeding was more than Rs. 2,000/- an objection was taken in that Court that it was not competent to hear the reference. The objector having failed there brought that question to High Court. But unfortunately by the time the case came up for decision in the High Court, the Civil Court became functus officio in that matter and so the proceeding in the High Court had to be finally disposed of without any relief to the objector. Yet in the course of discussion, their Lordships expressed the view that the objection taken on the ground of pecuniary jurisdiction was a valid one. But the discussion on this point is rather scanty and is based on the general proposition that the competency of a Court consists both in territorial and pecuniary jurisdiction without any detailed discussion on the consideration as to whether the provisions of Section 6 of the CPC did at all apply to a case like that. Therefore, these cases do not throw any light on the point raised here.

    10. Lastly, our attention has also been drawn by the petitioners to the difficulties, which may arise in cases where Civil Courts of different grades having the same territorial jurisdiction are found situated in the same area. In that case no doubt a ticklish question may arise as to which of the different Courts a reference under Section 146 of the Cr PC will have to be made. The section, as it stands, is silent, on that point and this certainly may give rise to some unnecessary controversy. Therefore, perhaps it is better if the Legislature removes this lacuna as early as possible. But on the language as it stands at present, it has to be held that in such cases all these Courts will have concurrent jurisdiction and in law the reference to any of them shall be a valid reference. So it will be open to the referring Magistrate to choose either of them for the matter of reference. Generally, however, I think it would be better if the Magistrate in making the reference avoid in over-crowding the Courts of higher grade with unnecessary burdens. That means, in cases of proceedings under Section 145 of the Cr PC it would be better if the reference to the Civil Court be as a rule, made to a Court of the lowest grade unless otherwise the Magistrate is of opinion that the reference to a Court of higher grade is necessary in the circumstances of the case.

    11. For the reasons stated above, I think it has to be held that this application is one without substance. It is accordingly dismissed but in the circumstances of the case there will be no order as to costs.

    12. Misra, J.:— I agree. In my opinion, the question of pecuniary jurisdiction of a Civil Court in order to make it a Civil Court of competent jurisdiction within the meaning of Section 146(1) of the Cr PC cannot reasonably arise. It is plain that pecuniary jurisdiction is out of place under S. 145 and for that matter under Section 146 of the Cr PC which is exclusively concerned with territorial jurisdiction. The legislature while amending the Code of Criminal Procedure under the 1955 Act and introducing these words has not defined ‘competent jurisdiction’. It has no doubt introduced some ambiguity. But to import the notion of pecuniary jurisdiction along with territorial in construing the scope of this expression is not warranted. The cases relied upon by learned counsel for the petitioner are all of them of a character which could be finally disposed of by the Civil Court to which they were referred either for execution or under the Bengal Land Registration Act of 1876 or under the Revenue Law. My learned brother has already pointed out that it is not so in respect of the reference under Section 146(1) of the Cr PC. A finding by the Civil Court on the dispute as to which party-is in possession is again sent back to the Criminal Court which has to pass the final order.

    13. The Legislature appears to have adopted this procedure in view of the fact that a Civil Court is in a better position to record a finding in such contentions disputes than the Criminal Court. The Civil Court acts thus for a limited purpose in aid of the Criminal Court as a friendly Tribunal, as an amicus curiae, of that Court. This conclusion is further fortified by the fact that the legislature has carefully excluded any right of appeal, review or revision to the aggrieved party against the finding of a Civil Court on such reference under sub-s. 1(c) of that section. There is yet another pertinent question of practical value. If this expression ‘Civil Court of competent jurisdiction’ were to include pecuniary jurisdiction as well, the referring Magistrate in every case will have to determine the value of the subject matter in dispute before him which may necessitate the recording of fresh evidence. It will, in any case, give rise to a new proceeding of an incidental character which may be open to challenge in a superior Court. If the Civil Court to which the reference is made has to determine the issue, the position, is worse still as that Court after recording evidence on the point may have to transmit back the record to the Magistrate making the reference if it finds that it is beyond its pecuniary jurisdiction. In my opinion, therefore, any consideration of pecuniary jurisdiction which is relevant when the Civil Court after the case is transferred to it for execution of a decree or for other matters to record a final decision disposing of the rights of the parties in so far as it is concerned does not arise in the reference under Section 146(1) of the Cr PC.

    K.S.B

    14. Petition dismissed.

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    Comments

    Bodh Narain Prasad v. Deo Narain Singh And Others Opposite Parties.
    (Nov 29, 1957)