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PATNA HIGH COURT
G.N.Prasad, J.
Mithila Saran Singh
Versus
Nihora Singh
Criminal Revision No. 1649 of 1968 ;
Decided On : JANUARY 23, 1969
CRIMINAL PROCEDURE CODE - SECTION 145 - SECTION 146 - REFERENCE TO CIVIL COURT - JURISDICTION - MAGISTRATE'S JURISDICTION NOT DIVESTED BY IMPROPER REFERENCE - MAGISTRATE CAN PROCEED UNDER SECTION 145 (4) AFTER RECEIPT OF RECORDS FROM CIVIL COURT.
Fact of the Case:
In a proceeding under Section 145 of the Code of Criminal Procedure, the Magistrate made an improper reference to the Civil Court under Section 146 (1). The Civil Court returned the records to the Magistrate, holding that the reference was not in accordance with law. The Magistrate then proceeded to decide the proceeding under Section 145 (4).
Finding of the Court:
The Magistrate's jurisdiction to decide the proceeding under Section 145 (4) was not divested by the improper reference to the Civil Court. The Magistrate was entitled to proceed under Section 145 (4) after receipt of the records from the Civil Court.
Issues: Whether the Magistrate's jurisdiction to decide the proceeding under Section 145 (4) was divested by the improper reference to the Civil Court.
Ratio Decidendi: The Magistrate's jurisdiction to decide the proceeding under Section 145 (4) was not divested by the improper reference to the Civil Court. The Civil Court had no jurisdiction to make any direction to the Magistrate. The reference to the Civil Court was abortive and it wholly failed to deprive the Magistrate of his normal jurisdiction to decide the proceeding in accordance with Section 145 (4) and to transfer that jurisdiction to the Civil Court under Section 146 (1).
Final Decision: The Magistrate was entitled to proceed under Section 145 (4) after receipt of the records from the Civil Court.
G.N.Prasad, J.
1. The petitioners were the first party in a proceeding under Sec.145 of the Code of Criminal Procedure with respect to several plots of land appertaining to Khata numbers 44, 121 and 137 and situated in village Makhdumpur, Police station Bihta, district Patna. They are aggrieved by the final order passed by the learned Magistrate declaring the second party in possession over the disputed lands.
2. It is common ground that there were two brothers Triloki and Sheo Lochan. Triloki had a son, Kuar Singh who died leaving behind his widow Askueri Kuer. Kuar Singh had a son, Sundar Singh who died leaving behind his widow Dularo Kuer, opposite party No. 6. In the other branch, Hathi Ram was son of Sheo Lochan. Mithila Saran Singh, petitioner No. 1, is the son of Hathi Ram and Rajeshwar Singh, petitioner No. 2, is the surviving son of Mithila Saran Singh who had another son, Mahanand Singh who is dead. The parties are at variance with respect to the family of Rainu Singh. According to the first party, Rainu Singh was full brother of Hathi Ram (father of petitioner No. 1). But according to the second party, Rainu Singh was not the second son of Sheo Lochan but the second son of Triloki. Both the parties, however, are agreed that Rainu Singh had a daughter, Piyari Kuer, whose husband Nihora Singh is opposite party No. 1 in this Court. Opposite party No. 5, Sheo Prasad Singh, is son of Nihora Singh, Opposite party No. 1.
3. It is also undisputed in this case that Nihora Singh, opposite party No. 1, and Dwarka Singh, opposite party No. 2, are full brothers. The case of the second party is that Kuar Singh had also left behind a daughter, named, Balo Kuer and this Balo Kuer was married to Dwarka Singh, opposite party No. 2. According to the case of the first party, however, Kuar Singh had left behind no such daughter. There is, however, no dispute that Upendra Singh and Bhupendra Singh, opposite party numbers 3 and 4 respectively, are sons of Dwarka Singh, Opposite party No. 2.
4. Briefly stated the case of the first party petitioners was that after the death of Sundar Singh, there was no male member to assist the two ladies, Askueri Kuer and Dularo Kuer (opposite Party No. 6) in management of the lands left behind by Sundar Singh. Accordingly Mithila Saran Singh, petitioner No. 1, began to manage their properties and was virtually in possession over the disputed lands. However, on the 7th December, 1961, Dularo Kuer, Opposite party No. 6, executed a deed of gift in respect of the entire disputed lands in favour of the two sons of Mithila Saran Singh, namely, Rajeshwar (Petitioner No. 1) and Mahanand (since deceased). Thus, the members of the first party were in actual possession over the entire disputed lands at the time when the present proceeding was drawn up under the orders of the court, dated the 31st March, 1962.
5. The case of the second party was that Sundar Singh had predeceased his father Kuar Singh, and having none to assist him in his old age to manage his properties, he kept his son-in-law, Dwarka Singh, opposite party no, 2, with himself and thus, it was Dwarka Singh who was in possession over the lands of Kuar Singh. Kuar Singh had also surrendered his properties in favour of Dwarka Singh. Dwarka Singh, used to maintain Askueri Kuer and Dularo Kuer out of the income of the lands of Kuar Singh over which he was in possession. Somehow or the other, Dularo Kuer, opposite party No. 6 was brought in collusion of the first party who took a deed of gift from her on the 7th December, 1961 and raised a dispute as to possession, ultimately giving rise to the present proceeding.
6. It is hardly necessary to add that the learned enquiring Magistrate has accepted the claim of possession over the disputed property put forward by the second party.
7. Mr. A.K. Roy, appearing on behalf of the petitioners, has put forward the contention that the decision of the learned Magistrate is without jurisdiction and, as such, it
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