MADIVALA THIMMIAH Vs. SIVARUDRIAH

JUDGEMENT

(1.) The First Magistrate of Bangalore having started certain proceedings Under Section 145 of the Code of Criminal Procedure made a reference to the Munsiff at Doddaballapur Under Section 146 (1) of the same Code. Thereafter when one Ramaiah made an application to the Magistrate for being added as a party to the proceedings on the ground that he was in possession of one of the items of land in dispute, the Magistrate referred him to the court of the Munsiff. The Munsiff thought that his powers were confined to the reference and rejected the application. On a revision petition filed by the said Ramaiah before the learned Sessions Judge, Bangalore Division, he has made this reference exorcising an opinion that the Munsiff's view as to his competence to entertain the application of Ramaiah is wrong in law and recommending that the said application be granted and he be added as a party to the proceedings.

(2.) The basis of the learned Munsif's view appears to be that he is not competent to entertain the application of Ramaiah for the reason that his powers are limited by the reference made to him by the Magistrate. If this view is correct, a Civil Court to which reference is made by the Magistrate Under Section 146(1) would be in the position of a mere delegate or agent of the Magistrate. Such a view appears to me to be unacceptable. The power which the Civil Court exercises on a reference being made to it as aforesaid is a statutory power conferred upon it directly by the Statute itself. The civil court does not derive its power from the order of the Magistrate. That is also the view taken by Ramachandra Iyer, J, of the Madras High Court in Kochadai Naidu v. Nagayasami Naidu AIR1961 Mad 247 , 1961 CriLJ821 , with which I respectfully agree. His' Lordship further points out that the jurisdiction conferred on the Civil Court Under Section 146 of the Code of Criminal Procedure is in the nature of a special jurisdiction and the statute conferring that jurisdiction not having prescribed any special procedure for the exercise of that jurisdiction, the Civil Court in respect of that special jurisdiction may follow its own ordinary procedure, that is to say, the procedure as prescribed by the Code' of Civil Procedure, except to the extent to which ths provisions relating to its ordinary procedure are inconsistent with any of the provisions of the statute conferring that special jurisdiction. Now Section 146 of the Code of Criminal Procedure does not require the Civil Court to follow any particular procedure. The provision of Sub-section (i-A) in regard to the taking of further evidence by the Civil Court is not suggestive of any limitation or restriction placed upon the powers of the civil court. On the contrary, it actually suggests that the civil court is not limited to the evidence recorded by the Magistrate. The only provision of Section 146 of the Code of Criminal Procedure which may be said to be inconsistent with the ordinary procedure followed by civil courts is that contained in Sub-section (i-D), according to which no appeal shall lie from any finding of the civil court given on a reference under that Section nor shall any review or revision of any such finding be allowed. The obvious purpose of this provision is that the final order is to be passed by the Magistrate whereafter the parties have substantial remedy by way of suit to establish their rights.

(3.) In the decision of the Madras High Court referred to above, the question was whether a reference received by a Civil Court Under Section 146 (1) of the Code of Criminal Procedure is amenable to powers of transfer Under Section 24 of the Code of Civil Procedure. His Lordship held that it was a civil proceeding within the meaning of Section 24 of the Code of Civil Procedure and therefore capable of being transferred by an order made under that section.