PETITIONER:
CHANDRASEKHAR SINGH & ORS.
Vs.
RESPONDENT:
SIYA RAM SINGH & ORS.
DATE OF JUDGMENT26/09/1978
BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
SINGH, JASWANT
KOSHAL, A.D.
CITATION:
1979 AIR 1 1979 SCR (1) 947
1979 SCC (3) 118
ACT:
Code of Criminal Procedure, 1898-Section 146-The
finding of the Civil Court under this Section as to
possession is final.
Code of Criminal Procedure, 1898, Sections 435 & 439-
Revisional powers of the High Court-High Court cannot
interfere with the findings of fact of the Civil Court in a
proceeding under s. 146 Criminal P.C.-Constitution of India,
1950 Art. 227-Power of superintendence of the High Court is
limited.
HEADNOTE:
In the 145 proceedings converted from the 144
proceedings on a police report dated 29-2-1968, both the
appellants-second parties and the respondents first parties
claimed title as well as possession of the disputed land
with them and filed in support documents and several
affidavits. The magistrate referred he matte to the Civil
Court for a finding on the issue. On a consideration of he
materials placed before him, the munsif by an order dated
22-12-1975 found that the appellants-second parties were in
possession. The magistrate passed an order dated 7-4-1976 in
accordance with the findings on the issue as to possession
by the munsif holding that the appellants-second parties
were in possession. The High Court in revision under
sections 435 and 439 of the Criminal Procedure Code, 1898,
was of the view that the finding as to possession on the
basis of documents alone without applying the mind to the
affidavits cannot be sustained and set aside the orders
passed by the magistrate.
Allowing the appeal by special leave, the Court.
^
HELD : (1) The finding of the Civil Court given under
s. 146(1B) of the 1898 Code regarding possession is final
and cannot be challenged by way of appeal, review or
revision, though the Civil Court acting under section 146
(IA) and (IB) of the Criminal Procedure Code has not ceased
to be a Civil Court. Neither an appeal nor a revision lies
against the finding of the Civil Court in the reference
because of the express provision in section 146(1D) and not
because the proceeding before the Civil Court is not a civil
proceeding [951C-D, E]
State of U.P. v. Ramachandra Aggarwal [1966] Supp. SCR
393 followed.
(2) An order passed by the magistrate in conformity
with the decision of the Civil Court cannot be challenged
under sections 435 and 439 of the code. Sub-section (1B)
requires the magistrate on receipt of the findings by the
Civil Court to proceed and dispose of the proceedings under
s. 145 in conformity with the decision of the Civil Court.
If the order of the magistrate is in conformity with the
decision of the Civil Court, the magistrate will be
complying with the requirements of section 146 (1B) and the
order thus passed cannot be challenged. It will of course be
open to the High Court to interfere if the order of the
magistrate is not in conformity with the finding of the
Civil Court. When the order of the magistrate is in
conformity with the finding of the Civil Court, the High
Court has no jurisdiction to interfere under sections 435
and 439 of
948
the Criminal Procedure Code. When there is an express
provision namely, sub-section (1D) in the Code against the
challenge of the finding of the Civil Court, other
provisions of the Criminal Procedure Code cannot be relied
on for doing what is expressly prohibited. [952A-D]
(3) The powers conferred on the High Court under Art.
227 of the Constitution cannot in any way be curtailed by
the provisions of the Criminal Procedure Code. Therefore the
powers of the High Court under Art. 227 of the Constitution
can be invoked in spite of the restrictions placed under s.
146 (TD) of the Criminal Procedure Code. [952D-E]
But the scope of interference by the High Court under
Art. 227 is restricted to seeing that the tribunal functions
within its limits of authority. The power of superintendence
cannot be invoked to correct the error of fact which only a
superior Court can do in exercise of its statutory power as
the Court of appeal and that the High Court cannot in
exercise of its jurisdiction under Art. 227 convert itself
into a Court of appeal. [952F, G, 953A]
Waryam Singh v. Amar Nath [1954] SCR 56; Nagendra Nath
Bora & Anr. v. Commissioner of Hills Division, and Appeals,
Assam & Ors., [1958] SCR 1240; Babhutmal Raichand Oswal v.
Laxmibai R. Tarts, AIR 1975 SC 1297 reiterated.
Raja Singh v. Mahendra Singh, AIR 1963 Patna 243;
Dewani Choudhary & Ors. v. Chaturi Manjhi & Ors. 1971
B.L.J.R. 116; Farzand Ali v. Shaukat Ali & Ors., AIR 1971
All. 12; discussed.
In the instant case, the Civil Court has taken into
account the affidavits filed on behalf of the parties and
rejected them on finding that no weight could be given to
the affidavits having been sworn by persons who were
interested and belonged to one party or the other. [953D-E]
OBSERVATION :
[In view of the coming into force of the Cr. P.C. 1973
(Act II of 1974) and the amendment of Art. 227 of the
Constitution by the 42nd Amendment, the question as
dealt with in the Judgment will not any longer arise.]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
148 of 1977.
Appeal by Special Leave from the Judgment and Order
dated 10-1-77 of the Patna High Court in Criminal Revision
No. 765 of 1976.
R. K. Jain, R. L. Singh, R. P. Singh and Rajeev Datta
for the Appellants.
Lal Narayan Sinha and M. P. Jha for the Respondent.
The Judgment of the Court was delivered by
KAILASAM, J. This appeal is by special leave by the
second party in Section 145 of the Criminal Procedure Code
proceedings against the judgment of the Patna High Court in
Criminal Revision No. 765 of 1976.
949
On receipt of a Police Report dated 29-2-1968,
proceedings under Section 144 of the Criminal Procedure Code
were started on 18-3-1968. The appellants in this Court are
the Second Party and the respondents the First Party. The
proceedings were converted into one under Section 145,
Criminal Procedure Code and the lands in dispute were
attached on 14-5-1968. Both the parties claimed title as
well as possession of the disputed land with them. The First
Party, respondents, filed their documents and nine
affidavits in support of their claims while the appellants,
Second Party, filed several documents and 12 affidavits in
support of their case. The Magistrate on a consideration of
the material placed before him found himself unable to
decide as to which of the parties had been in possession of
the disputed land, and referred the matter to the civil
court for a finding on the issue. On a consideration of the
materials placed before him the Munsif by an order dated 22-
12-1975 found that the appellants, Second Party, were in
possession and sent back the records to the Magistrate for
disposal according to law. The Magistrate passed an order
dated 7-4-1976 in accordance with the finding on the issue
as to possession by the Munsif, holding that the appellants,
Second Party were in possession.
Aggrieved by the order of the Magistrate, the First
Party filed a Revision Petition to the High Court. The High
Court found that the Munsif had failed to consider the
affidavit of either party but decided the question of
possession only on the documents. As the Munsif failed to
consider the affidavits, the High Court was of the view that
the finding as to possession on the basis of documents alone
without applying its mind to the affidavits, cannot be
sustained. The appellants, Second Party, being aggrieved by
the order has come up to this Court by special leave.
The questions that arise for consideration in this
appeal are (1) whether the finding of Civil Court under
section 146 (1B) can be challenged by way of an appeal or by
review or revision, (2) whether an order which is passed by
the Magistrate on the receipt of the finding of the Civil
Court, in conformity with the decision of the Civil Court,
can be challenged before the High Court under Sections 435
and 439 of the Criminal Procedure Code, and (3) whether an
order passed by the Magistrate under Section 146 (1B) can be
interfered with by the High Court in exercise of its powers
under Article 227 of the Constitution of India.
There is conflict of views between various High Courts
regarding the points raised. We would content ourselves by
referring to three full bench decisions wherein the
decisions of all the High Courts are referred to. The two
full Bench decisions of the Patna High Court
950
are reported in A.I.R. 1963 Patna 243 (Raja Singh v.
Mahendra Singh), Dewani Choudhary and Ors. v. Chaturi Manjhi
and Ors. (1971 B.L.J.R. p. 116). The full Bench decision of
the Allahabad High Court is reported in A.I.R. 1971
Allahabad p. 12 (Farzand Ali v. Shaukat Ali & Ors.
In Raja Singh v. Mahendra Singh (supra), the Full Bench
of the Patna High Court by a majority of 2 to 1 held that in
exercise of its revisional powers under Sections 435 and 439
of the Code of Criminal Procedure, the High Court can, in
suitable cases, interfere with the decision of the Civil
Court given by it under sub-Section (1-A) upon a reference
made to it under sub-Section (1) of Section 146 of the Code
after the referring Magistrate has disposed of the
proceeding under Section 145 under sub-Section (1-B), and
that the bar as to appeal, review and revision imposed by
sub-Section (1-D) operates only so long as the Magistrate
has not passed his order under sub-section (1-B) of Section
146. The majority view on the other hand, is that the bar of
sub-Section (1-D) continues even after the Magistrate has
disposed of the proceeding under sub-Section (1D). All the
three learned Judges constituting the Full Bench however,
agreed that nothing in sub-Section (1-D) affects the power
of superintendence which the High Court enjoys under Article
227 of the Constitution. The correctness of this decision
was considered by a full Bench of five Judges in the Dewani
Choudhary’s case (supra). The Full Bench upheld the
unanimous view in Raja Singh’s case (supra) that sub-Section
(1-D) does not take away the power of judicial interference
which the High Court possesses under Article 227 of the
Constitution with the decision of the Civil Court given
under sub-Section (1A) of Section 146 of the Criminal
Procedure Code in cases involving flagrant violation of
legal principles or principles of natural justice.
The second question that was considered in Choudhary’s
case was whether the High Court was competent to interfere
with the findings of the Civil Court under Section (1A) of
Section 146 in the exercise of its powers of criminal
revision; the Full Bench held that there is no scope for
interference with the findings of the Civil Court in
exercise of the criminal revisional jurisdiction of the High
Court, not by reason of the bar enacted in sub-Sec. (1D) of
Section 146. but upon the express term of Sections 435 and
439 of the Code. The power of the High Court is confined
against the final order which the Magistrate is enjoined to
pass in conformity with the decision of the Civil Court. In
doing so, the High Court can examine whether the Magistrate
passed the final order in conformity with the decision of
the Civil Court or not. But it cannot embark upon an enquiry
as to the legality or
951
propriety of the decision of the Civil Court which is the
basis of the Magistrate’s final order. On this question the
full Bench did not accept the majority view in Raja Singh’s
case (supra).
The Allahabad High Court (AIR 1971 All. 12 FB-Supra)
considering the question whether the bar contemplated under
Section 146 (1B) is a bar against the finding being
interfered with in revision even against the order of the
Magistrate who decides the proceeding before him in
accordance with the finding of the Civil Court, held that
even in revision from the ultimate order which disposes of
the proceedings in accordance with the findings of the Civil
Court, the finding of the Civil Court cannot be interfered
with.
An examination of the provisions of Section 146 of
Criminal Procedure Code of 1898 would show that the finding
of the Civil Court on a reference by the Magistrate
regarding possession cannot be appealed against or
challenged by way of review or revision. Though the Civil
Court acting under Section 146 (1A) and (1B) of Criminal
Procedure Code, has not ceased to be a Civil Court, the
finding regarding possession given by the Civil Court cannot
be challenged by an appeal, revision or review. In other
words, the finding given by the Civil Court is final. This
Court in State of U.P. & Anr. v. Ramchandra Aggarwal and
Anr.(1) held that neither an appeal nor a revision lies
against the finding of the Civil Court in the reference
because of the express provision in Section 146 (1D) and not
because the proceeding before the Civil Court is not a civil
proceeding. The wording of Section 146 (1D) puts the matter
beyond any controversy. Sub-Section (1D) reads as follows:-
“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 any such finding be allowed”.
The sub-Section makes it clear that the finding of the Civil
Court cannot be questioned by way of an appeal. It also
prohibits any challenge to the finding by way of review or
revision. The answer therefore to the first question is that
the finding of the civil court given under Section 146 (1B)
regarding possession is final and cannot be challenged by
way of appeal, review or revision.
The second question that arises is whether when the
Magistrate passes an order on receipt of a finding, from the
civil court that order can be challenged by way of revision
before the High Court. The plea that was put forward was the
bar to the challenge of the finding of the civil court is
lifted when the Magistrate passes his order after
952
the receipt of the finding of the civil court. Sub-section
(1B) requires the Magistrate on receipt of the findings by
the civil court to proceed and dispose of the proceedings
under Section 145 in conformity with the decision of the
civil court. If the order of the Magistrate is in conformity
with the decision of the civil court, the Magistrate will be
complying with the requirements of Section 146 (1B) and the
order thus passed cannot be challenged. It will of course be
open to the High Court to interfere if the order of the
Magistrate is not in conformity with the finding of the
civil court. When the order of the Magistrate is in
conformity with the finding of the civil court, the High
Court has no jurisdiction to interfere under Sections 435
and 439 of the Criminal Procedure Code. When there is an
express provision sub-Section (1D) in the Code against the
challenge of the finding of the civil court other provisions
of the Criminal Procedure Code cannot be relied on for doing
what is expressly prohibited. The answer therefore to the
second question is that an order passed by the Magistrate
under Section 146 (1B) in conformity with the decision of
the civil court cannot be challenged under Sections 435 and
439.
The only other question that remains to be considered
is whether an order under Section 146 (1B) can be interfered
with by the High Court in the exercise of its powers under
Article 227 of the Constitution. It is admitted that the
powers conferred on the High Court under Art. 227 of the
Constitution cannot in any way be curtailed by the
provisions of the Criminal Procedure Code. Therefore, the
powers of the High Court under Art. 227 of the Constitution
can be invoked in spite of the restrictions placed under
Section 146(1D) of the Criminal Procedure Code. But the
scope of interference by the High Court under Art. 227 is
restricted. This Court has repeatedly held that “the power
of superintendence conferred by Article 227 is to be
exercised most sparingly and only in appropriate cases in
order to keep the subordinate courts within the bounds of
their authority and not for correcting mere errors vide 1954
S.C.R. 565 (Waryam Singh v. Amar Nath). In a later decision,
(Nagendra Nath Bora and another v. The Commissioner of Hills
Division, and Appeals, Assam and Others(1), the view was
reiterated and it was held that the power of judicial
interference under Article 227 of the Constitution are not
greater than the power under Article 226 of the
Constitution, and that under Art. 227 of the Constitution,
the power of interference is limited to seeing that the
tribunal functions within the limits of its authority. In a
recent decision, (Babhutmal Raichand Oswal v. Laxmibai R.
Tarts(2) this Court reiterated the view stated in the
953
earlier decisions referred to and held that the power of
superintendence under Article 227 of the Constitution cannot
be invoked to correct an error of fact which only a superior
court can do in exercise of its statutory power as the Court
of appeal and that the High Court cannot in exercise of its
jurisdiction under Art. 227 convert itself into a court of
appeal.
The High Court has interfered with the order of the
Magistrate which is in conformity with the finding of the
civil court regarding possession on the ground that the
civil court has failed to consider the affidavits filed by
the parties. The High Court on a reading of a passage in the
judgment of the civil court came to the conclusion that the
Munsif failed to consider the affidavits. In dealing with
the affidavits, the civil court observed that as persons who
had sworn to the affidavits, are highly interested persons,
undue importance cannot be attached upon their oath. After
referring to the person on both sides, who had sworn to the
affidavits, the civil court stated that “I do not think that
these affidavits and counter-affidavits will be of any help
to either party”. We find that the civil court has taken
into account the affidavits filed on behalf of the parties
but as the persons who had sworn to the affidavits were
interested and belonged to one party or the other, it found
that no weight can be given to the affidavits. We do not
agree that the rejection of the affidavits under the
circumstances can be termed as failure to consider the
affidavits. Apart from finding that the reason given by the
High Court is not convincing, we are of opinion that the
High Court has no power under Sections 435 and 439 of the
Criminal Procedure Code to interfere with the findings of
the civil court regarding possession in a reference under
Section 146 of the Criminal Procedure Code. In the result we
hold that the High Court was in error in invoking Sections
435 and 439 for interfering with the finding of the civil
court. In fact, Mr. Lal Narain Sinha, learned counsel
appearing for the respondent, with his usual fairness
conceded that he cannot contend that the High Court can in
exercise of its power under Sections 435 and 439 interfere
with the finding of the civil court regarding possession.
But Mr. Lal Narain Sinha submitted that the order of
the High Court could be sustained as the power of the High
Court under Art. 227 cannot be questioned. While there could
be no dispute that the power of the High Court under Art.
227 cannot be curtailed under Section 146 of the Criminal
Procedure Code, we do not think that the facts of the case
would justify the High Court to interfere under Art. 227.
954
Before concluding the judgment, we may point out that
Section 146 of the Code of Criminal Procedure 1898, is no
longer in force having been replaced by the Code of Criminal
Procedure of 1973 (Act 2 of 1974). Under the new Section,
146(1), if the Magistrate is unable to satisfy himself as to
which of the parties was in possession of the subject of
dispute he may attach the subject of dispute until a
competent Court has determined the rights of the parties
thereto with regard to the person entitled to the possession
thereof. Art. 227 has also been since amended by 42nd
Amendment further restricting the powers of the High Court
to interfere under Art. 227. The question thus dealt with by
us can no longer arise after the coming into force of the
Code of Criminal Procedure (Act 2 of 1974). In the result
the appeal is allowed and the order of the High Court is set
aside and that of the Magistrate is restored.
S.R. Appeal allowed.
955