HITLAL MAHTON Vs. BHIKHARI MAHTON

JUDGEMENT

(1.) A proceeding under Section 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 defendant's 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.