1. Magistrate referred a possession dispute under Section 146(1) CrPC to a civil court; District Judge subsequently transferred the reference under Section 24 CPC. (Para 1 )
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1966 Supreme(SC) 151
SUPREME COURT OF INDIA
Ram Chandra Aggarwal and another, Appellants
Versus
The State of U.P. and another, Respondents.
The Attorney-General for India Intervener.
Criminal Appeal No. 113 of 1965, dated 5-5-1966.
Advocates appeared
Mr. J. P. Goyal, Advocate, for Appellants; M/s. O. P. Rana and Atiqur Rehman, Advocates, for Respondent No. 1; M/s. S. K. Mehta and K. L. Mehta, Advocates, for Respondent No. 2; Mr. B. R. L. Iyengar, Senior Advocate, (Mr. B. R. G. K. Achar, Advocate , with him), for the Intervener.
The District Judge has jurisdiction under Section 24 of the Code of Civil Procedure to transfer a reference made by a Magistrate under Section 146 of the Code of Criminal Procedure, as the term "proceeding" in Section 24 is comprehensive and includes all matters for judicial adjudication.
Headnote:(A) Code of Civil Procedure, 1908 - Section 24 and Section 141 - Code of Criminal Procedure, 1898 - Section 145 and Section 146 - Transfer of reference from one civil court to another - Jurisdiction of District Judge - Whether a reference made by a Magistrate to a civil court for deciding possession under Section 146(1) of the Code of Criminal Procedure is a "proceeding" within the meaning of Section 24(1)(b) of the Code of Civil Procedure - Held: Yes. (Paras 3, 4, 6)
(B) Persona designata vs. Constituted Court - Where a statute refers a matter to a constituted Court and not to the presiding officer of that Court, the reference is not to a persona designata. (Para 3)
(C) Nature of proceeding - A proceeding before a civil court arising out of a reference by a Magistrate does not lose its character as a proceeding simply because it stems from a criminal matter. The term "proceeding" in Section 24(1)(b) of the Code of Civil Procedure is comprehensive and includes all matters coming up for judicial adjudication, not confined to civil proceedings alone. (Para 6)
Facts of the case:
A Magistrate, unable to determine which party was in possession of a plot of land during proceedings under Section 145 of the Code of Criminal Procedure, referred the question to a civil court under Section 146(1) of the same Code. The District Judge subsequently transferred the case from one subordinate court to another under Section 24 of the Code of Civil Procedure. The appellants challenged the validity of this transfer, contending that the reference was to a persona designata and that the proceeding was not a civil proceeding, thus making the transfer and subsequent orders a nullity.
Findings of Court:
The court found that the reference was made to a constituted court and not a persona designata. It further held that the term "proceeding" in Section 24(1)(b) of the Code of Civil Procedure is broad enough to include the reference in question, regardless of whether it is classified as a "civil proceeding" under Section 141 of the Code of Civil Procedure.
Issues: Whether the District Judge has jurisdiction under Section 24 of the Code of Civil Procedure to transfer a reference made by a Magistrate to a civil court under Section 146 of the Code of Criminal Procedure.
Ratio Decidendi: The expression "other proceeding" in Section 24(1)(b) of the Code of Civil Procedure is not a term of art and should be given a comprehensive meaning to include all matters coming up for judicial adjudication. Since the reference under Section 146(1) of the Code of Criminal Procedure involves judicial adjudication by a subordinate court, it falls within the scope of "proceeding" transferable by the District Court.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether a reference under Section 146(1) CrPC is a civil proceeding or to a persona designata, rendering transfer under Section 24 CPC impermissible. (Para 2 )
3. Reference to a constituted court is not to a persona designata; proceedings before a civil court for adjudication of rights are governed by civil procedure. (Para 3 , 4 , 5 , 6 )
4. The term proceeding in Section 24(1)(b) CPC is comprehensive, encompassing all matters for judicial adjudication, including references under Section 146(1) CrPC. (Para 6 )
5. Appeal dismissed. (Para 6 )
6. Does a reference under Section 146(1) CrPC to a civil court constitute a reference to a persona designata?
No. Section 146(1) CrPC empowers a Magistrate to refer the matter to a civil court of competent jurisdiction, not a specific presiding officer. Because it refers to a constituted court, it enlarges the court's ordinary jurisdiction rather than appointing an individual. (Para 3 )
7. Does a reference to a civil court under Section 146(1) CrPC retain the character of a criminal proceeding?
No. While the Magistrate exercises criminal jurisdiction under Section 145 CrPC, referring a question to a civil court does not confer criminal jurisdiction upon that court. When a legal right is in dispute, civil courts are governed by ordinary rules of procedure. (Para 4 )
8. Can a District Judge transfer a reference made under Section 146(1) CrPC using Section 24 CPC?
Yes. Section 24(1)(b) CPC allows the transfer of any suit, appeal, or other proceeding. The term proceeding is comprehensive and includes all matters coming up for judicial adjudication, regardless of whether they are original civil proceedings. (Para 6 )
9. Does the bar on appeals or revisions under Section 146(1-D) CrPC imply that the proceeding is not a civil proceeding?
No. The bar on appeal, review, or revision is a result of an express statutory provision and does not change the inherent nature of the proceeding before the civil court. (Para 5 )
Judgment
MUDHOLKAR, J. : The only point which falls to be decided in this appeal by certificate granted by the High Court at Allahabad is whether the District Judge has jurisdiction under S. 24 of the Code of Civil Procedure to transfer a reference made by a Magistrate to a particular civil Court under S. 146 of the Code of Criminal Procedure to another civil Court. It arises this way. Proceedings under S. 145, Cr. P. C. were initiated by a Magistrate on the basis of a report of a police officer to the effect that a dispute likely to cause a breach of the peace exists concerning a plot of land situate within the jurisdiction of the Magistrate between the parties mentioned in the report and praying for appropriate action under S. 145 of the Code of Criminal Procedure. The learned Magistrate upon being satisfied about the possibility of a breach of the peace made a preliminary order under S. 145. Cr. P. C. attached the property to which the dispute related and called upon the parties to adduce evidence in respect of their respective claims. In due course he recorded the evidence but he was unable to make up his mind as to which of the parties was in possession on the date of the preliminary order and within two months thereof. He, therefore, referred the case under S. 146 (1) of the Cr. P. C. to a civil Court for decision as to which of the parties was in possession at the material point of time and in the meanwhile directed that the attachment of the property shall continue. The reference went to the Court of the Munsiff within whose territorial jurisdiction the property was situate. But thereafter one of the parties Brij Gopal Binani, respondent No. 2 before us made an application to the District Judge under S. 24, C. P. C. for transfer of the case to some other Court. The ground given was that in the execution case out of which proceedings under S. 145, Cr. P. C. had arisen the same Munsiff had made an order against him depriving him of costs. The Munsiff having no objection to the transfer the District Judge transferred the case to the Court of another Munsiff. The opposite parties, that is, the appellants before us Ram Chandra Aggarwal and Kadar Prasad Aggarwal acquiesced in the order of transfer and did not raise any question as to the jurisdiction of the transferee Court to hear and decide the reference. Eventually evidence was led by both sides and finding given by the transferee Court. This finding was in favour of the second respondent. After receiving the finding the learned Magistrate heard the parties and held that it was the second respondent who was in possession at the relevant date and passed an order under S. 145 (6), Cr. P. C. pursuant thereto. A revision application was preferred by the appellants before the Court of Session in which the objection was taken for the first time that the decision of the civil Court was a nullity because it had no territorial jurisdiction over the subject-matter of the dispute. It was further contended that the District Judge had no jurisdiction to transfer the case and that consequently the ultimate order made by the learned Magistrate was a nullity. The learned Additional Sessions Judge who heard the revision application rejected these contentions on the ground that they were not raised earlier. The appellants then took the matter to the High Court in revision. The appellants rested their revision application on the sole ground that S. 24, C. P. C. was not available in respect of a reference under S. 146 (1), Cr. P. C. and that, therefore, the proceedings subsequent to the transfer of the reference from the Court of one Munsiff to that of another are a nullity. The High Court permitted the point to be urged. The attack was based upon two grounds; that the reference under S. 146 (1), Cr. P. C. was to a persona designata and that the provisions of S. 24, C. P. C. were not available with respect to it. The second ground was that the proceeding before the civil Court was not a civil
