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1974 DIGILAW 290 (ALL)

Daya Ram Sharma v. U. P. State

1974-07-23

D.S.MATHUR, K.B.SRIVASTAVA, ONKAR SINGH

body1974
JUDGMENT K.B. Srivastava, J. - This reference to the Full Bench raises an important question as to the interpretation of Sub-section (1) of Section 146 of the Code of Criminal Procedure, 1898 with respect to which there is some conflict of opinion. 2. The facts giving rise to the reference, may now be stated in brief: In proceedings u/s 145, after the parties had put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute, and their documents, and their own affidavits, and had adduced) by putting in affidavits, the evidence of such persons, as they relied upon in support of their claims, the Sub Divisional Magistrate, without drawing up "a statement of the facts of the Case" and without giving his reasons as to how he was "unable to decide as to which of them" was in possession on the date of the preliminary order or within two months next before that date, forwarded the record of the proceeding to the 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 preliminary order or within two months next before it, and directed he parties to appear before the Civil Court on the date fixed by him. The reference to the Civil Court was based on the following order: Case taken up today. Heard arguments. I could not reach any decision on the question of possession of the subject of dispute at the date of the preliminary order or within two months next before it. Hence the case is referred to the Court of the Munsif Magistrate Barabanki, u/s 146. Heard arguments. I could not reach any decision on the question of possession of the subject of dispute at the date of the preliminary order or within two months next before it. Hence the case is referred to the Court of the Munsif Magistrate Barabanki, u/s 146. The Petitioner Daya Ram Sharma challenged the validity of the order in a revision before the Sessions Judge on two grounds, namely, (1) that the jurisdiction of a Magistrate to make a reference to Civil Court of competent jurisdiction comes into existence when he- (i) is of opinion that none of the parties was then in such possession, or (ii) is unable to decide as to which of them was then in such possession, and (2) in case the foundation for assumption of jurisdiction is there, he must "draw up a statement of the facts of the case" before forwarding the record of the proceeding to a Civil Court of competent jurisdiction, and a failure to observe either of these two requirements, would render the reference invalid and liable to be set aside. The learned Sessions Judge over-ruled these two contentions and that gave rise to a criminal revision in this Court. 3. The revision came up for hearing before one of us and due to conflict in decisions, the matter has been placed before this Full Bench for an authoritative pronouncement. 4 The decision will turn on the interpretation of Sections 145 and 146 and, therefore, it is necessary to reproduce them in so far as they are relevant, for the solution of the controversy. (Their Lordships then reproduced Sections 145(1), (4) Proviso, (6) and 146(1) and proceeded on to observe) * * * * * 5. Section 145(1) thus provides the procedure to be followed where the Magistrate is satisfied that- (1) a dispute exists concerning any land or water or the boundaries thereof, and (2) such dispute is likely to cause to breach of the peace. Where he is so satisfied, he has to pass a preliminary order and direct the parties to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further to put in such documents, or produce, by putting in affidavit, the evidence of such persons, as they rely upon in support of such claims. The Magistrate has thereafter to make an enquiry under Sub-section (4) of Section 145. The inquiry is, however, limited to the question as to who was in possession in fact on the date of the order, irrespective of the question as to the right of the parties. A party forcibly and wrongfully dispossessed within two months next before the date of the order, may for this purpose be treated as if he had been in possession on the date of the order. The procedure to be adopted in the inquiry is also prescribed by this Sub-section itself and is limited to the perusal of (1) the written statements, (2) documents, (3) affidavits, if any, (4) hearing the parties, and (5) conclusion of the inquiry and, if possible, decision of the question whether any and which of the parties was at the date of the order in possession of the subject of dispute. If the Magistrate is able to decide that one of the disputing parties was in possession on the date of the preliminary order, should pass a final order declaring that such party is entitled to possession of the property until evicted in due course of law, and forbidding all disturbance of such possession until such eviction. The Magistrate, has not, however, any statutory obligation to decide the question. The words "if possible", occuring in Sub-section (4) clearly show that it is not mandatory on his part to formulate a decision on the question of possession if it should present insurmountable difficulties. On the happening of this, that is to say, if he 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, he may take advantage of Section 146(1), and may attach the property, and refer the dispute to 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 preliminary order or within two months next before it. Section 146 is thus a corollary to Section 145 and can be considered as a part or a compliment of it. Proceedings u/s 146(1) are thus proceedings in continuation of those u/s 145; and Section 146 can have no independent existence. 6. Section 146 is thus a corollary to Section 145 and can be considered as a part or a compliment of it. Proceedings u/s 146(1) are thus proceedings in continuation of those u/s 145; and Section 146 can have no independent existence. 6. The primary duty in relation to the decision of the question of possession u/s 145 is that of the Magistrate. The law requires him to comply with the procedure specified in Sub-section (4) and decide the question of possession himself and then proceed further and pass the final order under Sub-section (6). However if it is not possible for him to do so, in the two contingencies referred, to above, he has to draw up a statement of the facts of the case and forward the record to the Civil Court of competent jurisdiction to decide the question of possession and subsequently on the receipt of the finding and record to proceed further and dispose of the proceeding u/s 146(1-B), read with Section 145(6) in conformity with the decision of the Civil Court. He has thus the jurisdiction to decide the question himself ; he has also the jurisdiction to leave it undecided, if it is not possible for him to decide it; and he as the further necessary and consequential jurisdiction, in the latter event, to refer the matter to the Civil Court of competent jurisdiction for decision. 7. Now, as to what are the requirements of law under Sub-section (1) of Section 146 which must be fulfilled, before a Magistrate forwards the proceedings to a Civil Court of competent jurisdiction. Section 146(1) states that- (1) if the Magistrate is of opinion that none of the parties was then in such possession, or (2) if the Magistrate is unable to decide as to which of them was then in such possession, (3) he may forward the proceedings to a Civil Court of competent jurisdiction to decide the question of possession. He can thus suspend his jurisdiction temporarily but that is dependent on the existence of either of them, two topic facts. If none, of them exists, he cannot forward the proceedings to the Civil Court. He can thus suspend his jurisdiction temporarily but that is dependent on the existence of either of them, two topic facts. If none, of them exists, he cannot forward the proceedings to the Civil Court. The argument advanced by the learned Counsel for the Petitioner was that a Magistrate must make a genuine attempt to arrive at a conclusion on the question of possession himself and in case of his difficulty in arriving at any conclusion with regard to the two basic facts, he must give reasons and the omission or failure on his part to give the reasons is a fatal defect which not only vitiates the reference but all subsequent proceedings arising thereunder. He placed reliance on a large number of cases dealing with the interpretation of Sub-section (1) of Section 146, both before and after its amendment by Section 19 of the Code of Criminal Procedure (Amendment) Act, 26 of 1955. The cases prior to the amendment are Khedan Matho v. Hussaini Kalal 22 CriLJ 323, Lachmi Ojha v. Brija Misser 22 CriLJ 616 and Lakshmi Narain v. Jugeshwar AIR 1954 Pat 169 (the first two being single Judge decisions and the last a Division Bench decision of the Patna High Court), and on Ayodhya Nath v. Ganga Prasad 1953 AWR 332 , a decision of single Judge of this Court. In all these cases, the order of attachment u/s 146(1) was set aside on the ground that reasons for inability were not given. In Khedan Mahto's case it was held that in order to show the Magistrate's inability to decide the question of possession, he ought to have discussed the evidence in the case and given reason for his inability. The observation made in Lachmi Ojha's case was that the general remark that the oral evidence is not reliable, without referring to it and without giving any reasons, is not a disposal of the evidence upon the records; and it amounts to a refusal to exercise the jurisdiction vested in a Magistrate and is a remediable by the High Court in revision. In Lachmi Narain's case, the order was set aside because the Magistrate had made no real effort to analyse the evidence between the parties and determine the question of possession one way or the other. In Lachmi Narain's case, the order was set aside because the Magistrate had made no real effort to analyse the evidence between the parties and determine the question of possession one way or the other. In Ayodhya Nath's case, Beg, J. delivered himself thus: The order itself need not be long, but it should contain sufficient material to indicate to the revisional Court that the Court of enquiry had applied its mind to the case, and had made a genuine attempt to give a decision in the matter, and, inspire of it, had found itself unable to come to a definite conclusion in favour of either party.... In such a case the order should contain some reasons to indicate that the Magistrate had applied his mind to it, and had not shirked his responsibility in the matter.... The case which deal with interpretation of Section 146(1), after its amendment, may now be noticed. The cases of this Court are Kumari Om Kumari v. Srimati Lajjawati 1966 AWR 516 and Sarju Narain Vs. Lachhmi Narain, (1970) CriLJ 614 . In Om Kumari's case C.B. Kapoor, J. observed that a mere ipse dixit of a Magistrate that he is unable to arrive at definite finding on the question of possession is not a compliance with the provisions of law; and unless a Magistrate enters into a critical and detailed examination of the affidavits, he cannot arrive at a finding that a reference to the Civil Court is warranted; and it must appear from the order that he had applied his mind to the evidence. In Sarju Narain's case, H.C.P. Tripathi, J. observed thus: The impugned order...shows that he had not applied his mind to the evidence before him and had abdicated his functions in favour of the Civil Court. He has not given any reasons as to why he was not in a position to decide the question of possession.... Instead of exercising his mind, he has adopted an easy course of referring the matter to the Civil Court for deciding for him as to which of the two parties was in possession. He has not given any reasons as to why he was not in a position to decide the question of possession.... Instead of exercising his mind, he has adopted an easy course of referring the matter to the Civil Court for deciding for him as to which of the two parties was in possession. It must be remembered that proceedings u/s 145, Code of Criminal Procedure are to be primarily decided by the Magistrate...only in extreme cases where complicated questions of law and fact arise making it extremely difficult for him to arrive at a conclusion that he should take advantage of Section 145.... The reference of the question in a routine manneris not intended by the provisions of Section 146. The case of Ramjilal and Others Vs. Jawahar and Others, (1974) CriLJ 726 was decided by a Single Judge of the Rajasthan High Court, and it has taken the same view. The Patna High Court has come to the same conclusion in State of Bihar Vs. Hari Mishra and Another, AIR 1965 Patna 411 which is a Division Bench decision. In all the above cases, the order of reference was challenged before the return of the finding, and all the references were quashed for the common infirmity that the Magistrate had not applied his mind, had not discussed the evidence, and had not given his reasons for his inability. In Ayodhya Prasad Tewari Vs. Hopal Manjhi and Others, (1970) CriLJ 115 a learned single Judge of the Patna High Court went further and not only set aside the order of reference but also the finding given by the Civil Court on the ground of the incompetency of the reference. In Abdul Noor v. Ciraj Ali AIR 1963 Tri 35 it was held that reasons must be given but the order of reference made by the Magistrate was not quashed on the ground that the Civil Court had already returned its finding and the revision was not instituted at the appropriate stage, namely, when the order of reference was made and that it was too late a stage to quash it, for it had remained unchallenged and after the party had submitted to the jurisdiction of the Civil Court and had participated in the proceedings before it. 8. 8. We shall now deal with cases cited, by the learned Counsel for the opposite side for the proposition that the Magistrate need give no reasons and an order of reference cannot be considered to be incompetent on failure to give reasons. Bharosa v. State 1951 AWR 507 is a decision by Desai, J. (as he then was) and the observation is that there is no justification, statutory or otherwise, for requiring the Magistrate to give the reasons for an order passed by him u/s 146. This was a decision prior to the amendment. Reliance has also been placed on two decisions of the Patna High Court, namely, Shreedhar Thakur and Others Vs. Kesho Sao and Others, AIR 1962 Patna 468 and Kartik Sahu v. Nand Kishore 1964 (2) CriLJ 112. Kartik Sahu's case can be easily distinguished. In that case the Magistrate made the reference, after examining the respective cases of the parties and considering the materials available before him. The Civil Court, however, returned the record to the Magistrate as he found that the disputed land had not been properly described. The Magistrate then started fresh proceedings and sent back the case, but this time without giving any reasons for his inability. It is in these circumstances, that it was held that the reference was not incompetent because the second reference was not the real order of reference. In Shreedhar Thakur's case, strong disapproval was expressed on the failure of the Magistrate to give his reasons, but the remark that the reference was not incompetent, merely for that reason appears to be a casual one because the entire reference was quashed on another ground. This case was distinguished in Ayodhya Prasad Tewari's case also. The last case cited is Chandi Prasad v. Chandra Pratap 1970 AWR 259 a Division Bench decision of this Court. The order of reference made by the Magistrate is not quoted in the judgment to indicate whether he had or had not applied his mind to the evidence; and indeed, it appears that he had merely failed to say that he was unable to decide. This will appear from the observations of the Bench in the following terms: It is true that he did not, in so many words, state that he was making the reference because of his inability to determine as to which of the parties was in possession.... This will appear from the observations of the Bench in the following terms: It is true that he did not, in so many words, state that he was making the reference because of his inability to determine as to which of the parties was in possession.... Nevertheless, it is perfectly plain from the order passed by him that he found difficulty in reaching a definite conclusion as to which of them was really in possession. Under the circumstances, he was, in our opinion, perfectly justified in making a reference to the Civil Court. In judging whether the Magistrate had sufficient ground to refer the dispute to the Civil Court, what has to be seen is the substance and not the form of the order. 9. The consistent trend of decisions is that since ordinarily it is the duty of the Magistrate to decide the question of possession, he should decide it, and the extraordinary procedure of a reference u/s 146(1) should be adopted when one of the two contingencies is in existence and the Magistrate gives his reasons, after discussion of the evidence, though it is not necessary that it should be a detailed order. It may be mentioned that Section 146(1) uses two expressions, that is to say, "is of opinion" and "or is unable to decide", the former having relation to the question that none of the parties was then in such possession and the latter to the question as to which of them was then in such possession. It is apparent that an opinion can be formulated by application of mind, by the consideration of the entire evidence, oral or documentary; and likewise inability to decide can also arise only after a similar application of mind and similar consideration of the evidence. The word "unable" would mean unequal to the task or need; not able to do something specified etc. That being so, the duty of the Magistrate lies in narrating the respective cases of the parties, marshalling their respective evidence, and in expressing his difficulties in arriving at a conclusion. It should be obvious to Magistrates that by an order of reference, they suspend their jurisdiction for a short period, while the Civil Court assumes jurisdiction, and therefore, it is necessary that reasons should be given. It should be obvious to Magistrates that by an order of reference, they suspend their jurisdiction for a short period, while the Civil Court assumes jurisdiction, and therefore, it is necessary that reasons should be given. Magistrates should not adopt an easy course of shifting their own responsibility,, without giving reasons, and without even a superior Court getting to know as to the circumstances which operated in the making of the order of reference. 10. The next question is as to what is the legal effect of the failure or omission on the part of the Magistrate to give his reasons for his order forwarding the record u/s 146(1) to the Civil Court of competent jurisdiction. Now, the "existence" of jurisdiction is very different from the "exercise" of jurisdiction. The failure to comply with statutory requirements in the assumption of jurisdiction and in the exercise of that jurisdiction entails very different consequences. The authority to deal with a matter at all is what makes up jurisdiction. When there is such jurisdiction, the decision of all other questions in the matter is only an "exercise" of that jurisdiction. An error, omission, or irregularity in such exercise, which does not occasion a failure of justice, is cured by Section 537(a), Code of Criminal Procedure. That section, in so far as it is relevant, says that no order passed by a Court of competent jurisdiction shall be reversed on revision on account of any error, omission or irregularity in the order in any proceeding under the Code, unless such error, omission or irregularity has, in fact, occasioned a failure of justice. Undoubtedly, it does not authorise a subordinate Criminal Court to commit an error, omission or an irregularity which do not occasion a failure of justice for it is its duty to faithfully comply with the procedure; but where an error, omission or irregularity has been committed, and such matter comes up before the revisional Court; such error, omission, or irregularity will, in the absence of failure of justice, not be a ground which can be urged for getting the order reversed. The requirement of the section is that the failure of justice has, in fact, been occasioned, The , mere possibility or probability of a failure of justice will not be sufficient, when the law requires that the failure of justice must be established as a fact. 11. The requirement of the section is that the failure of justice has, in fact, been occasioned, The , mere possibility or probability of a failure of justice will not be sufficient, when the law requires that the failure of justice must be established as a fact. 11. The matter has thus to be judged in the light of the discussion above. The Sub-Divisional Magistrate was undoubtedly a Court of competent jurisdiction, when he assumed jurisdiction u/s 145(1). He had the jurisdiction to decide the question of possession u/s 145(4) and to pass a final order u/s 145(6). He had the alternative jurisdiction, in the case of his inability to decide the question, to forward the record to the Civil Court of competent jurisdiction. This alternative jurisdiction will be apparent from the use of the words "if possible" in Section 145(4), when they are read with the words "unable to decide" used in Section 146(1). The, learned Magistrate exercised this alternative jurisdiction when he observed: "Heard arguments. I could not reach any decision on the question of possession of the subject of dispute". He thus complied with the statutory requirements in the assumption of jurisdiction. The failure to draw up a statement of the facts of the case or give reasons for his inability, is a failure which relates to matters of procedure, or a failure in the exercise of his jurisdiction, and not in the assumption of jurisdiction. That being so, such a failure in the matter of non-compliance with mere procedure will not be fatal, unless it has occasioned a failure of justice. 12. In short, in our view, Magistrates should give reasons for an order u/s 146(1) referring a case for decision to Civil Court of competent jurisdiction; however, mere omission to give reasons will not be sufficient to invalidate the reference, unless failure of justice is, in fact, established. 13. The revision shall now go back to the learned single Judge for decision in the light of our opinion.