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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

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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

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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.

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    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

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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

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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,

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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