1. Dispute over possession under Section 145, CrPC — Reference to civil court under Section 146(1), CrPC — Transfer of reference by District Judge under Section 24, CPC. (Para 1 )
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1966 Supreme(SC) 150
Supreme Court Of India
RAM CHANDRA AGGARWAL
Versus
State of Uttar Pradesh
Decided On : May 5, 1966
A reference made by a Magistrate to a civil court under Section 146(1) of the Code of Criminal Procedure is a "proceeding" within the meaning of Section 24 of the Code of Civil Procedure, granting the District Judge jurisdiction to transfer such a reference.
Headnote:(A) Code of Civil Procedure, 1908 - Section 24 and Section 141 - Code of Criminal Procedure, 1973 - Section 145 and Section 146(1) - Transfer of reference from one civil court to another - Whether a District Judge has jurisdiction under Section 24 of the Code of Civil Procedure to transfer a reference made by a Magistrate under Section 146(1) of the Code of Criminal Procedure - A reference made to a "civil Court of competent jurisdiction" is a reference to a constituted court and not to a persona designata; determinations of a persona designata are not treated as judgments of a legal tribunal (Para 3).
(B) Nature of Proceedings - A proceeding before a civil court arising out of a reference by a Magistrate does not lose its character as a civil proceeding merely because it stems from a criminal matter - The expression "civil proceeding" is not restricted to those arising out of civil suits (Para 4).
(C) Code of Civil Procedure, 1908 - Section 24(1)(b) - Scope of "other proceeding" - The term "proceeding" in the context of transferring cases is not a term of art but has a comprehensive meaning including all matters coming up for judicial adjudication other than a suit or an appeal - A reference under Section 146(1) of the Code of Criminal Procedure falls within the ambit of "other proceeding" and is thus transferable by the High Court or District Court (Para 6).
Facts of the case:
Proceedings were initiated by a Magistrate regarding a land dispute likely to cause a breach of peace. Unable to determine which party was in possession, the Magistrate referred the matter to a civil court under the Code of Criminal Procedure. One of the parties applied to the District Judge for the transfer of the case to another civil court, citing bias. The District Judge transferred the case, and the transferee court subsequently recorded a finding. This finding was used by the Magistrate to pass a final order. The appellants challenged the transfer, arguing that the District Judge lacked jurisdiction under the Code of Civil Procedure to transfer a reference made under the Code of Criminal Procedure.
Findings of Court:
The District Judge possesses the jurisdiction under Section 24 of the Code of Civil Procedure to transfer a reference made by a Magistrate under Section 146(1) of the Code of Criminal Procedure to another civil court.
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 particular civil court under Section 146 of the Code of Criminal Procedure to another civil court.
Ratio Decidendi: The court held that a reference under Section 146(1) of the Code of Criminal Procedure is made to a constituted court and not to a persona designata. Such a proceeding, while originating from a criminal matter, constitutes a judicial adjudication of a dispute. The term "other proceeding" in Section 24(1)(b) of the Code of Civil Procedure is comprehensive and includes all matters coming up for judicial adjudication, regardless of whether they are original civil suits. Therefore, the power to withdraw and transfer proceedings extends to such references.
Result: Appeal dismissed.
Judgement Key Points
Certainly. Based on the provided legal document, here are the key points:
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The primary issue addressed is whether a District Judge has the jurisdiction under Section 24 of the Civil Procedure Code to transfer a reference made by a Magistrate under Section 146 of the Criminal Procedure Code to another civil Court (!) .
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The case involves proceedings initiated under Section 145 of the Criminal Procedure Code, where a Magistrate made a preliminary order due to a dispute over land, and subsequently referred the case to a civil Court under Section 146(1) of the Criminal Procedure Code to determine possession at a specific time (!) .
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The reference was initially made to a civil Court (a Munsiff), but later, upon an application by one party, the District Judge transferred the case to another civil Court. The transfer was based on a procedural ground related to the conduct of the parties in a related proceeding, with the consent of the involved parties (!) .
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The appellants challenged the validity of the transfer and subsequent proceedings, arguing that the civil Court lacked territorial jurisdiction and that the District Judge lacked authority under Section 24 of the Civil Procedure Code to transfer the case (!) .
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The legal contention also included whether the reference under Section 146(1) of the Criminal Procedure Code constitutes a civil proceeding within the meaning of Section 141 of the Civil Procedure Code, and whether the proceedings before the civil Court are subject to the Civil Procedure Code's rules, including appeals and revisions (!) (!) .
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The court clarified that a reference under Section 146(1) is to a constituted Court rather than a persona designata, and such proceedings are considered civil in nature, thus attracting the applicability of the Civil Procedure Code (!) .
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It was emphasized that the proceedings initiated under Section 146(1) of the Criminal Procedure Code are akin to civil proceedings, and the provisions of the Civil Procedure Code, including those related to arbitration and jurisdiction, are applicable unless explicitly barred (!) .
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The court rejected the argument that proceedings under Section 146(1) are not civil proceedings, citing relevant legal principles and previous judgments that support the view that such proceedings are within the scope of civil judicial processes (!) .
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The court also noted that the term "proceeding" used in Section 24 of the Civil Procedure Code is broad and includes all matters coming up for judicial adjudication, not limited solely to suits or appeals. Therefore, the transfer of the case by the District Judge was within his authority, provided the proceedings are considered civil (!) (!) .
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The decision underscores that the procedural rules applicable to civil cases, including transfer and jurisdiction, are applicable to proceedings arising from references under Section 146(1) of the Criminal Procedure Code, and the transfer was valid under the law (!) .
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2. Whether a reference under Section 146(1), CrPC is to a persona designata or a civil proceeding, and whether Section 24, CPC permits its transfer. (Para 2 )
3. Reference to a civil court under Section 146(1), CrPC is to a constituted court, not a persona designata, and constitutes a judicial proceeding. (Para 3 , 4 , 5 , 6 )
4. Section 24, CPC allows transfer of any proceeding pending in a subordinate court, including references made by a Magistrate 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. Because Section 146(1), CrPC empowers a Magistrate to refer the question to a civil court of competent jurisdiction rather than a specific presiding officer, it is a reference to a constituted court, not a persona designata. (Para 3 )
7. Does a proceeding before a civil court arising from a criminal reference under Section 146(1), CrPC retain the character of a criminal proceeding?
No. When a Magistrate refers a question of possession to a civil court, the civil court does not exercise criminal jurisdiction. It is a judicial proceeding where ordinary rules of procedure apply, regardless of its origin in a criminal matter. (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 pending in a subordinate court. The term proceeding is comprehensive and includes all matters coming up for judicial adjudication, including references under Section 146(1), CrPC. (Para 6 )
Judgment
( 1 ) 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
