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1951 Supreme(Pat) 144
PATNA HIGH COURT
Shearer, J.
Hitlal Mahton
Versus
Bhikhari Mahton
Criminal Reference No. 68 of 1951 ;
Decided On : DECEMBER 06, 1951
A proceeding under Sec.147 of the Code of Criminal Procedure is a quasi civil proceeding, and the jurisdiction of the trying Magistrate is limited if the question at issue has already been the subject of a suit in the civil Court.
Headnote:
Sec.147 - Quasi Civil Proceeding - The court held that a proceeding under Sec.147 of the Code of Criminal Procedure is a quasi civil proceeding. If the question at issue has already been the subject of a suit in the civil Court, the trying Magistrate has no jurisdiction to institute the proceeding.
Fact of the Case:
The question at issue between the parties had already been the subject of a suit in the civil Court, and the trying Magistrate had no jurisdiction to institute the proceeding.
Finding of the Court:
The court set aside the order of the trial Court and remanded the case to the trying Magistrate to determine whether the decision of the civil Court operates as res judicata.
Issues: Jurisdiction of the trying Magistrate to institute the proceeding under Sec.147 of the Code of Criminal Procedure.
Ratio Decidendi: A proceeding under Sec.147 is a quasi civil proceeding, and the trying Magistrate has no jurisdiction if the question at issue has already been the subject of a suit in the civil Court.
Final Decision: The order of the trial Court was set aside, and the case was remanded to the trying Magistrate for further determination.
Shearer, J.
1. A proceeding under Sec.147 of the Code of Criminal Procedure is a quasi civil proceeding. If, therefore, the question at issue between the parties has already been the subject- matter of a suit in the civil Court, the learned trying Magistrate had no jurisdiction to institute this proceeding; and the course which he took was the correct one. (Vide In Re: ANYA SHIDHYA PATIL, 28 Cri L J 578 (Bom,)). The plaint and written statement in the suit are not on the record, and it may be, as has been contended by the learned Advocate for the opposite party, that in the plaint it was asserted in the alternative that the plaintiff had a right of way across the defendants land, and that this plea was not taken at the trial and was by implication, negatived. The reference will be accepted, the order of the trial Court will be set aside, and the case will be remanded. It will be for the learned trying Magistrate to decide whether the decision of the civil Court operates as res judicata. If it does he will not proceed further. If, on the other hand, it does not so operate, he will continue the proceeding and dispose of it according to law.
