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Brahma Nath v. Sundar Nath

Allahabad High Court

Feb 4, 1919

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Factual and Procedural Background

This is an application for criminal revision, filed in this Court on 21 December 1918, challenging proceedings said to have been taken under Section 145 of the Code of Criminal Procedure (Cr PC) concerning immovable property belonging to a math called Asthan Gorakhnath in the District of Gorakhpur. The applicant sought quashing of the proceedings on several grounds, principally that the proceedings were without jurisdiction, improper because a civil court had already determined the right to possession, and that the criminal court's attachment order dated 23 July 1918 exceeded its competence.

The property in dispute lay partly in Tahsil Sadar and largely in Tahsil Maharajganj. There had been prior disputes that resulted in criminal cases; two civil suits (cross suits) were also instituted and were decided by the Subordinate Judge of Gorakhpur on 15 June 1918. While the civil suits were pending, much of the property had been under magisterial attachment. The civil court's judgment held that Baba Brahma Nath was entitled to possession and ordered the attachments to be withdrawn; the Tahsil Sadar subsequently released attached property within its jurisdiction.

On 1 July 1918, Baba Brahma Nath applied to the Sub-divisional Magistrate of Maharajganj to similarly release the portion of the property within that jurisdiction. The Sub-divisional Magistrate of Maharajganj consulted the District Magistrate, and on 20 July 1918 the District Magistrate directed that "proceedings under Section 146, 145 of the Cr PC, be taken" in respect of the property, and ordered that the proceedings in respect of the whole property be taken by a particular Deputy Magistrate.

Legal Issues Presented

Whether the proceedings purportedly initiated under Section 145 Cr PC were valid and within jurisdiction given the prior decision of a competent civil court awarding possession to Baba Brahma Nath.
Whether the District Magistrate could lawfully direct unified proceedings in respect of property lying across more than one subdivision and whether he could validly select and transfer such proceedings to a subordinate Magistrate (issue raised in relation to Section 192 Cr PC).
Whether the formal and procedural requirements for initiating proceedings under Chapter XII (Sections 145 et seq.) of the Cr PC were complied with—specifically whether the required satisfaction (that a dispute likely to cause a breach of the peace exists), the recording of grounds, notices to parties, and requirements for written statements were made.
What is the correct interplay between civil court orders concerning possession of immovable property and criminal proceedings under Section 145, and whether protective relief should be sought in the civil forum instead of by these criminal proceedings.

Arguments of the Parties

Baba Sundar Nath's Arguments

He contended that the earlier criminal cases represented serious offences under the Penal Code, including repeated riots and damage to property.
His counsel argued that the District Magistrate was competent to pass the order of 20 July 1918 under Section 192 Cr PC (the power to transfer a case to any subordinate Magistrate).

Baba Brahma Nath's Position (as represented in the record)

Baba Brahma Nath applied to the Sub-divisional Magistrate of Sadar and asserted that the civil judgment had held him entitled to possession of the property, prompting releases of attachment and further applications for release in Maharajganj.
The record shows Brahma Nath relied on the civil court's judgment ordering withdrawal of attachment and entitlement to possession, and he sought administrative/magisterial action to effect that outcome across jurisdictions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jhingai Singh v. Ram Pratap	That proceedings under Section 145 must be in intention, in form, and in fact proceedings under Chapter XII, Code of Criminal Procedure, by a Magistrate duly empowered to act under that Chapter.	The Court relied on this principle to require strict compliance with Chapter XII formalities and to assess whether the impugned proceedings met those requirements; non-compliance supported setting aside the proceedings.
Sayseda Khatun v. Lal Singh	Same proposition as above — that Section 145 proceedings must conform to Chapter XII and be conducted by a Magistrate duly empowered.	Reinforced the Court's position that the proceedings must be proper in substance and form; used to justify interference where proceedings did not meet Chapter XII requirements.
Ganga Saran Singh v. Bhagwat Prasad	Example of a case in which an initial order under Chapter XII was defective (failed to set out grounds) but this Court declined in revision to interfere — treated as an exceptional decision.	The Court distinguished that exceptional past refusal to interfere and explained that it would not follow that approach in the present matter; accordingly the present defective proceedings were set aside.

Court's Reasoning and Analysis

The Court proceeded by assessing both jurisdictional and procedural irregularities, and by considering the proper forum for protecting property possession rights once a civil court had adjudicated them.

On the District Magistrate's order of 20 July: the Court questioned whether the District Magistrate could be said to have "taken cognizance" in the sense required to operate under Section 192 Cr PC and whether Section 192 applied to proceedings under Chapter XII (Sections 145 et seq.). The Court emphasised that Chapter XII uses the language of "disputes" and "proceedings", not "cases", raising doubt over the applicability of a transfer power framed for "cases".
The Court examined the statutory steps required where a Magistrate is satisfied that a dispute likely to cause a breach of the peace exists. Those steps include recording written grounds for satisfaction, requiring attendance of parties in person or by pleader, and calling for written statements of the parties' respective claims to actual possession. The District Magistrate's written order of 20 July recorded none of these steps.
The Sub-divisional Magistrate of Maharajganj issued a notice (23 July) stating he was satisfied a dispute likely to cause a breach of the peace existed, but he "sheltered himself behind" the District Magistrate's order and did not state the grounds of his satisfaction. The Court viewed this as a failure to comply with the mandatory procedural requirements for proceedings under Chapter XII.
Relying on established precedents (Jhingai Singh v. Ram Pratap and Sayseda Khatun v. Lal Singh), the Court reiterated that Section 145 proceedings must be proceedings under Chapter XII in intention, form and fact and must be conducted by a Magistrate duly empowered to act under that Chapter. The Court observed that although in Ganga Saran Singh v. Bhagwat Prasad it had once declined to interfere despite a defective initial order, that was an exceptional instance and did not govern the present decision.
The Court also considered the substantive posture: a civil court (whose competence was not attacked) had adjudicated entitlement to possession in favour of Baba Brahma Nath and ordered withdrawal of attachments. The Court noted that the Code of Civil Procedure provides remedies to protect property at risk of misappropriation or waste and that criminal procedures (e.g., binding over under Section 107 Cr PC) could be used to prevent breaches of the peace without undermining civil orders.
Balancing these considerations — procedural defects in the magistracy's exercise of Chapter XII powers and the existence of a civil adjudication on possession — the Court found it "expedient to exercise" its revisional powers in this matter and to set aside the impugned proceedings taken by the Sub-divisional Magistrate of Maharajganj.

Holding and Implications

Holding: The Court SET ASIDE the proceedings held by the Sub-divisional Magistrate of Maharajganj (i.e., the Section 145 proceedings there) and ordered that the record be returned. The parties were to revert to the status immediately preceding the institution of those proceedings.

Implications:

The direct effect is that the Section 145 proceedings conducted by the Sub-divisional Magistrate of Maharajganj are annulled and the record is returned to the authority from which it came.
The court emphasised that civil remedies under the Code of Civil Procedure are available to protect property and that criminal remedies such as orders under Section 107 Cr PC (binding over to keep the peace) may be applied where appropriate; the Court therefore signalled that invoking Section 145 was not appropriate in the face of a civil court order and where Chapter XII formalities were not observed.
The opinion does not announce or claim to establish a new legal principle beyond applying existing authorities; it applies established precedent requiring strict conformity with Chapter XII procedures and treats the previously cited exceptional refusal to interfere (Ganga Saran Singh) as not determinative in the present case.

Order: "The proceedings are entirely set aside and the parties will revert to the status immediately preceding the institution of these proceedings. Let the record be returned." (Record returned.)

V.B/R.K

Show all summary ...

1. This is an application for criminal revision of certain proceedings connected with property within the District of Gorakhpur. The proceedings are proceedings purporting to have been taken under Section 145 of the Cr PC. The application in this Court was filed-on 21st December 1918. The applicant prayed that this Court might be pleased to call for the record and quash all proceedings, on the following grounds: (1) Because the proceedings are absolutely without jurisdiction and are illegal. (2) Because the right and title to possession having been just decided by a competent Court, fresh proceedings, ostensibly under Section 145 of the Cr PC, cannot be started with the object of continuing the attachment of the property. (3) Because the order, dated 23rd July 1918, attaching the property is under the circumstances beyond the competence of the criminal Court. (4) Because the jurisdiction of the criminal Courts has ceased with the decision of the civil Court. The application was admitted on the grounds stated therein and in consequence the record is now on the table before me. The property in dispute is said to be property attached to a math called Asthan Gorakhnath. Part of it is situate somewhere, I am told, in Tahsil Sadar and the greater part of it in Tahsil Maharajganj. It apparently is conceded on both sides that there have been various disputes regarding this property and those disputes have resulted in cases instituted in criminal Courts of Gorakhpur.

2. It is contended on behalf of Baba Sunder Nath that those cases represent cases of serious offences in the Penal Code. According to him riots have multiplied and there has been damage to property. On the other hand looking to the result of the cases and the orders issued upon them, either these cases were not of the serious nature alleged, or they have been grappled with by punishments which would lead to an inference that the proceedings were not so serious as has been alleged. Be that as it may, two cross suits in the civil Courts had been instituted and both of these were decided by the Subordinate Judge of Gorakhpur, and that as recently as 15th of June 1918. While these civil suits were pending, a considerable portion of the property in dispute, partly situate in Tahsil Sadar and partly situate in Tahsil Maharajganj, was under attachment by the Magisterial authorities. It appears that as soon as the Subordinate Judge of Gorakhpur decided the cases before him, an application was made by Baba Brahma Nath to the Sub-divisional Magistrate, Sadar, stating that he, Brahma Nath, had been held in the judgment of the civil Court to be in possession. The judgment needs careful perusal, for the civil Court held that though Brahma Nath had failed to prove that Baba Sundar Nath was deposed and that Brahma Nath was made Mahant, yet it held Brahma Nath entitled to possession of the property and ordered him to explain the accounts to Sundar Nath. As I say, there is more in the judgment, but for the purposes of the proceedings-before me I do not think it necessary to recapitulate all that has been stated, but to go at once to the order of the civil Court which is to the effect that the attachment made of any property of the temple should be withdrawn in all cases. Brahma Nath was held by the civil Court entitled to possession and all the property attached was now to pass into the possession of Brahma Nath, who was liable to explain the accounts to Sundar Nath. The Tahsil Sadar acting upon this order released all the property attached within the jurisdiction of the Sub, divisional Magistrate of Sadar.

3. On 1st July 1918 Baba Brahma Nath applied to the Sub-divisional Magistrate of Maharajganj asking that the village Ubrichak situate within his jurisdiction should be similarly released. The Sub-divisional Magistrate of Maharajganj, therefore addressed the District Magistrate of Gorakhpur stating that he agreed with the Sub-divisional Magistrate of Sadar and asking for an order from the District Magistrate. The opinion of both these officers is said to have been that a fresh case under Section 145 of the Cr PC, should be started in respect to all the immovable property belonging to the math of Gorakhnath Asthan situate within Tahsil Sadar as well as within Tahsil Maharajganj and asking that some particular Magistrate might be ordered to try and dispose of the case in respect to the entire property. This points to the matters before the Sub-divisional Magistrates being proceedings and not cases. If they were cases, this communication between the Sub-divisional Magistrates and the District Magistrate was entirely out of order. On 20th July the District Magistrate recorded the following order:

“It having been brought to my notice that there has been a dispute regarding the title to the management of the immovable property of the Asthan of Gorakh Nath, and that this dispute is likely to be the occasion of a breach of the peace, I direct that proceedings under Section 146, 145 of the Cr PC, be taken in respect of this property. The property not being all situate in one sub-division, I direct that the proceedings in respect of the whole property be taken by Pandit Badri Narain Misra, Deputy Magistrate 1st Class.”

4. It is claimed by the learned counsel for Baba Sundar Nath that the District Magistrate was competent to pass this order under Section 192 of the Cr PC. S. 192 authorizes a District Magistrate to transfer a case of which he has taken cognizance for inquiry or trial, to any Magistrate subordinate to him. It may be open to question whether by passing this order of 20th July, the District Magistrate can be said to have taken cognizance of the case and further it they be questioned whether S. 192 has any reference whatever to proceedings under Section 145 of the Cr PC. Ch. 12, in which S. 145 and the following sections are to be found, very carefully avoids mentioning the word case at all. It talks of disputes and of proceedings, but nowhere of cases; and a third difficulty arises whether if transfer was authorized under S. 192, the transfer was to a Magistrate competent under the Code. The Magistrate selected by the District Magistrate of Gorakhpur was directed to pass orders in connexion with property part of which was not within the local limits of the jurisdiction of Sub-division Maharajganj. Further the District Magistrate, it he took cognizance of the case, had to be satisfied that a dispute likely to cause a breach of the peace existed concerning land within his jurisdiction. He had to make an order in writing, stating the grounds of his being so satisfied. He had to require the parties concerned in such dispute to attend his Court in person or by pleader within a time to be fixed by him and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. The District Magistrate in his order of 20th July puts on record not one of these steps. If we pass on to the order passed by the Sub-divisional Magistrate of Maharajganj, we shall find a notice issued on 23rd July 1918. In this notice the Sub-divisions Magistrate of Maharajganj does set out that he is satisfied that a dispute likely to cause a breach of the peace exists concerning immovable property. He then goes on to shelter himself behind an order of the District Magistrate, but he nowhere states the grounds of his being satisfied that such a dispute, does exist.

5. It may seem to use a proverbial expression, that this is dotting i's and crossing t's with a vengeance;” but it has been held over and over again by this Court, for example, in Jhingai Singh v. Ram Pratap (1), that proceedings under S. 145 must be in intention, in form, and in fact proceedings under Ch. 12, Code of Criminal Procedure, by a Magistrate duly empowered to act under that chapter. The same has been held by a Divisional Bench of this Court in Sayseda Khatun v. Lal Singh (2). It is true that in Ganga Saran Singh v. Bhagwat Prasad (3) to which I was a party (a case in which the initial order was defective, in that it did not set forth the grounds for the Magistrate being satisfied with the existence of a dispute likely to cause a breach of the peace), this Court declined in revision to interfere with the Magistrate's order but that was an exceptional case and we rightly or wrongly did dot deem it expedient to exercise our power in revision.

6. In the present case I deem it expedient to exercise my power in revision and I set aside the proceedings held by the Sub-divisional Magistrate of Maharajganj.

7. A great deal was addressed to me upon the fact that there is a dispute likely to cause a breach of the peace, that the property in dispute will be in danger of being badly administered, that the math of Gorakhnath is in danger of being misused if not misappropriated, but all this is really irrelevant to the matter before me. I cannot overlook the fact that a civil Court whose competence has been nowhere attacked in the course of the argument, has passed an order directing possession to be given to Brahma Nath over the property in dispute. That order can be taken before, and I believe at the present moment is being taken before a competent civil Court in appeal. The Code of Civil Procedure gives ample power over property which can be shown to be in danger of being misappropriated or wasted being protected without having resort to a criminal Court to pass orders contrary to civil Court orders which up to the present have not been disturbed. The criminal Court also had ample jurisdiction provided the facts had been properly stated to it of binding the parties over to keep the peace. Orders under S. 107 can be so framed as to make it not worth while for either party to attempt a breach of the peace, and for these reasons I do not deem it expedient that action should be taken under S. 145, especially since orders have been passed by a Magistrate whose jurisdiction is open to doubt and which are not in intention, form or fact, proceedings under Ch. 12, Code of Criminal Procedure. The proceedings are entirely set aside and the parties will revert to the status immediately preceding the institution of these proceedings. Let the record be returned.