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Madhya Pradesh High Court · body

1970 DIGILAW 25 (MP)

Banmali v. Kanahiya

1970-02-23

S.M.N.RAINA

body1970
ORDER S.M.N. Raina, J. This revision petition is directed against an order passed by the Sub-Divisional Magistrate under section 145 read with sub-section (1B) of section 146 of the Code of Criminal Procedure. The petitioner (hereinafter referred to as the applicant) had filed an application in the Court of the Sub-Divisional Magistrate, Seondha, under section 145, Criminal Procedure Code against the non-applicants in respect of the land in dispute. The learned Sub-Divisional Magistrate attached the land as there was an apprehension of breach of the peace. Thereafter, he being unable to decide as to which of the two parties was in possession of the land referred the matter to the Civil Judge Class II, Datia, under section 146(1), Criminal Procedure Code. The Civil Judge found that the non-applicants were in possession of the disputed land. On the basis of this finding the Sub-Divisional Magistrate passed an order in favour of the non-applicants directing that the possession of the land be handed over to the non-applicants. The applicant thereupon filed a revision petition which was dismissed by the Sessions Judge, Shivpuri. Being aggrieved thereby he has come up in revision before this Court. The main contention of the learned counsel for the applicant is that the finding of the civil Court is erroneous and, therefore, the order of the learned Sub-Divisional Magistrate which is based on the finding is liable to be set aside. It is not, however, open to the applicant to question the finding of the civil Court in this petition in view of sub-section (1D) of section 146 of the Code which reads as under: No appeal shall lie from any findings of the civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed. The contention of the learned counsel, for the applicant is that although this provision bars an appeal, revision or review of the finding by the civil Court, it is open to challenge in a revision under the Code of Criminal Procedure. In support of his contention he relied upon the ruling of the Assam High Court in Ramlakhan v. Raghunath AIR 1969 Nag 31. In support of his contention he relied upon the ruling of the Assam High Court in Ramlakhan v. Raghunath AIR 1969 Nag 31. It was held in that case in paragraph 4 that section 146(ID) in terms bars appeal, review or revision of the finding of the civil Court in the hierarchy of civil Courts but there is no bar against a revision application under section 435 or 439 of the Code of Criminal Procedure. The learned Judge in that case relied upon a Full Bench decision of the Patna High Court in Rajasingh v. Mahendrasingh AIR 1963 Pat. 243 . In that case the view of the majority of the Judges constituting the Bench was that sub-section (1D) of section 146 must be narrowly construed so as not to bar interference with the finding under section 435, or section 439, Criminal Procedure Code Sahai J. however, expressed a contrary view, It appears from the observations made in paragraph 4 of the majority judgment that the learned Judges were mainly influenced by the consideration that sub-section (1D) of section 146, could not be so construed as to take away the revisional jurisdiction of the High Court in respect of the order passed by a Magistrate under section 145 Criminal Procedure Code read with sub-section (18) of section 146 thereof. With great respect I am unable to agree with the aforesaid view. There can be no doubt that the High Court is competent to entertain a revision petition against an order passed by the Sub-Divisional Magistrate under subsection (18) of section 146 Criminal Procedure Code, but such an order can be challenged only if it is not in accordance with the finding of the civil Court. In my opinion the expression "any revision or review of any such finding" in sub-section (1D) of section 146 are wide enough to cover a revision of such a finding even under the Code of Criminal Procedure. There appears to be no justification for construing this expression narrowly so as to confine it to revision under the Code of Civil Procedure particularly because the object of sections 145 and 146 is to settle a dispute as to possession expeditiously in the interests of public peace. It is significant that the orders passed under the said section are only of an interim nature until the matter is decided by a Court of competent jurisdiction. It is significant that the orders passed under the said section are only of an interim nature until the matter is decided by a Court of competent jurisdiction. This has been amply made clear by sub section (1E) of section 146 of the Code of Criminal Procedure. I, therefore, hold that although a revision petition against an order of the Magistrate under section 146(1B) is maintainable under section 439 of the Code of Criminal Procedure it is not open to this Court to interfere with the finding of the civil Court as to possession in view of sub-section (1D) of section 146 of the Code. The order of the Magistrate can be questioned only if it is not in accordance with the finding of the civil Court or is otherwise improper or illegal. A similar view was expressed in Bijoyananda Das v. Sirish Chandra Das AIR 1966 Ori 119 . Since in this case the Magistrate has passed an order in favour of the non-applicants on the basis of the finding of the civil Court there can be no interference in revision as the finding can not be challenged in these proceedings. No other point was pressed before me. The petition, therefore, fails and is hereby summarily dismissed.