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1975 DIGILAW 22 (GAU)

SAWNA BRAHMA v. KALI BRAHMA

1975-07-21

M.C.PATHAK

body1975
JUDGEMENT Order :- This is an application under Sections 397/401 of the Code of Criminal Procedure, 1973. At the instance of the first party-opposite party, a proceeding under Section 145, Cr. P.C. of the old Code was initiated on 5-2-1973 in respect of the possession of the land in question. The learned Magistrate referred the matter to the Civil Court under Section 146 of the Old Code by his order dated 14-5-1973. The learned Munsiff, on receipt of the record, examined witnesses and also made local inspection in presence of both the parties and having considered the materials on record, came to the clear finding that the : first party was in possession of the disputed land at the relevant time. Thereafter the learned Magistrate in conformity with the decision of the Civil Court declared possession in favour of the first party and prohibited the second party from disturbing the possession of the first party as provided under Section 145 Criminal P.C. This order was passed by the learned Magistrate on 27-1-1975 and against this order the present revision petition has been filed. 2. Mr. S.K. Sen, learned counsel for the petitioner submits that the finding of the learned Munsiff regarding possession of the party is not warranted by the evidence on record. The submission of the learned counsel, however, is not tenable in law in view of the decision of this Court in Nishi Mohan's case (AIR 1971 Assam and Naga 53 : (1971 Cri LJ 589 FB). The learned counsel for the petitioner challenges the order of the learned Magistrate only on the ground that the finding of the learned Munsiff as to possession was bad in. law and he does not challenge the order of the learned Magistrate on any other ground. In Nishi Mohan's case, supra, this Court has held as follows :- "The decision in AIR 1969 Assam 81 : (1969 Cri LJ 854) is only to the effect that the revision is competent against the final order of the Magistrate passed under Section 146(IB), Criminal P.C. This decision has not held that revision is competent against the finding of the Civil Court as such. After careful consideration of the arguments advanced on both sides, we are clearly of opinion, in agreement with the decision in AIR 1969 Assam 81 : (1969 Cri LJ 854) that revision is competent against the final orders of the Magistrate passed under Section 146 (IB), Criminal P.C. xxx xxx xxx Since under Section 146(IB), the criminal Court has no other option than to pass an order in conformity with the decision of the Civil Court, it remains a decision of the Civil Court which is acted upon by the criminal Court. It will be open in criminal revision to challenge the order of the Magistrate only when it is not in conformity with the decision of the Civil Court or if there is any other illegality in the proceeding before the Magistrate. The finding of the Civil Court throughout remains at as such even after it is, being transmitted to the Magistrate and the finding cannot be challenged either before the Magistrate or in revisions under Sections 435 and 439, Criminal P.C. If the Civil Court commits any breach of fundamental principles of law or such other gross illegal ties, it would be open to the aggrieved party to move the High Court by means of an appropriate application under Article 227 of the Constitution and in exercise of the power of Superintendence the High Court may look into the matter and pass such orders as may be necessary. It will pot be open however, to challenge the finding of the Civil Court before the High Court in Criminal Revision. We are, therefore, of opinion that a revision application is competent under Sections 435 and 439, Criminal P.C. against the final orders passed by the Magistrate under Section 146(IB) Criminal P.C., but no revision to the High Court lies against the finding of a Civil Court as such." 3. The present petition is a revision petition under the Criminal Procedure Code. The petitioner has not challenged the order of the Magistrate on the ground that the Magistrate has committed any error of jurisdiction or any error of law. The learned counsel's submission is that the learned Munsiff made the local inspection which was not provided under the Code of Criminal Procedure. The submission is misconceived. The learned Munsiff was following the Civil Procedure Code where there is provision for such local inspection. The learned counsel's submission is that the learned Munsiff made the local inspection which was not provided under the Code of Criminal Procedure. The submission is misconceived. The learned Munsiff was following the Civil Procedure Code where there is provision for such local inspection. The present application is neither under Article 227 of the Constitution nor there is any material to establish a case under Article 227 of the Constitution for interference with the order of the learned Munsiff. 4. Accordingly the petition is found to have no merit and it is dismissed. The land in question shall be released from attachment. Petition dismissed.