Research › Browse › Judgment

Allahabad High Court · body

1971 DIGILAW 477 (ALL)

Amla Prasad v. State of U. P.

1971-10-29

C.D.PAREKH

body1971
JUDGMENT C.D. Parekh, J. - This revision arises out of the order dated 12th of June, 1968, passed by Shri Nathu Lal, S.D.M., Jaunpur against which order the applicants preferred revision before the Sessions Judge and by his order dated September 2, 1969 Temporary Civil and Sessions Judge, Jaunpur, dismissed the application in revision. 2. The property in dispute, as it appears, was recorded in the name of of one Smt. Nirashi, wife of Gajadhar. Smt. Nirashi died on 22nd of November, 1956, and thereafter dispute arose in respect of the properties left by Smt. Nirashi and each one of the parties to this revision claimed that they were in exclusive possession of the said properties. The learned magistrate was satisfied that there was apprehension of breach of peace but could not decide the disputed possession himself so he referred the matter to the civil court under section 146 Cr. P.C. for finding the party in possession. The reference was decided by the civil court. In between, a revenue litigation which was pending between the parties in respect of the disputed plots, was decided by the Board of Revenue, after the findings of the civil court was sent to the magistrate and before the magistrate could pass orders in conformity with the findings of the civil court as required by S. 146(1B) of the Cr.P.C. An application was filed on behalf of the applicants that the plots in dispute be released in their favour without any reference to the findings of the civil court about the possession. The application was rejected by the magistrate by his order dated December 12, 1968. Against this order the applicants preferred revision before the Sessions Judge which revision has been dismissed as aforesaid. They have now preferred this revision before this Court. 3. Learned counsel for the applicants relied on S. 146(1E) and stated that the order contemplated under this section shall be subject to the decision of a court of competent jurisdiction and thus the subject matter of dispute should have been released from attachment in favour of the applicants. According to the learned counsel the Board of Revenue had decided the matter in favour of the applicants subsequent to the finding in the reference made to the civil court. This is the only point urged before me. I do not agree with the contention raised by the learned counsel for the applicants. According to the learned counsel the Board of Revenue had decided the matter in favour of the applicants subsequent to the finding in the reference made to the civil court. This is the only point urged before me. I do not agree with the contention raised by the learned counsel for the applicants. An order under section 146 Cr.P.C. shall be subject to any subsequent decision of a court of competent jurisdiction, means that the disposal and termination of the proceedings under section 145 Cr.P.C. will be in conformity with the decision of the civil court. The word "order" in sub-S. (1E) of S. 146 Cr.P.C. indicates the order which may be passed by the magistrate and not the finding that may be given by the civil court in reference. The legislature has used the word "order" in S. 1-E Cr. P.C. which refers to the order by the magistrate. Word "decided" has been used in S. 1-A meaning thereby that the civil court can give a finding but will not pass any "order" under section 145 Cr. P.C. S. 1-D also goes to show that no appeal shall lie from any finding of the civil court given on a reference under this section. Therefore, the use of the word "order" in S. 146 (1-E) has deliberately been adopted by the legislature as distinguished from the words "the decision" or "a finding" and the word "order" has been used in different connotation in the said sub-section of S. 146 of Cr.P.C. In my opinion the word "order" in S. 1-E means the order passed by the magistrate disposing of the proceeding. According to my interpretation of S. 1-E, in this case there is no decision of a court of competent jurisdiction subsequent to the passing of the order by the magistrate. The point has, therefore, no force. 4. No other point has been urged. This revision is accordingly dismissed. Stay order dated September 22, 1969 is vacated.