RAJA SINGH Vs. MAHENDRA SINGH

JUDGEMENT

(1.) The question referred to this Bench for determination is as to whether the High Court can interfere in the exercise of its supervisory jurisdictions under Article 227 of the Constitution of India, with the finding of the Civil Court recorded when a dispute, which is the subject matter of a proceeding under Section 145, Cr. P. C. cannot be decided by the Magistrate before whom it is pending, and it is referred to a civil Court for a finding. Section 146 of the Code provides that if the Magistrate in such a case is of the opinion that he is unable to decide as to which of the contesting parties was in such possession of the subject of dispute, he may attach it and draw up a statement of the case and forward the record of the proceedings to a civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject matter of dispute on the date of the order. Sub-section (1B) of Section 146 provides that at the conclusion of the enquiry the civil Court shall transmit its finding together with the record of the proceedings to the Magistrate by whom the reference was made and the Magistrate shall, on receipt thereof, proceed to dispose of the proceeding under Section 145 in conformity with the decision of the Civil Court. Sub-section (1D) provides that no appeal shall lie from any finding of the Civil Court given on a reference under this section nor shall any review or revision of any such finding be allowed. Sub-section (1E) lays down that an order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction. A decision of a Division Bench of this Court reported in Chandradip Singh v. R. B. B. Verma, 1962 BLJR 105: (1962 (2) Cri LJ 577) is to the effect that in view of the provisions of Sub-section (1D) of Section 146, Cr. P. C. the High Court is not competent to interfere with the finding of the Civil Court returned by it on a reference under Sub-section (1) of this section, but that it is competent to rectify any palpable error under Article 227 of the Constitution of India.

(2.) Accordingly, two questions arise in substance for consideration in the present reference. One is, whether Article 227 of the Constitution can, be applied and that the finding of the Civil Court in the present context can be interfered with by the High Court. Article 227 of the Constitution provides that every High Court shall have superintendence over all Courts and tribunals throughout the territory in relation to which it exercises jurisdiction. A Civil Court in the very nature of its constitution is subordinate to the High Court and as such is subject to the supervisory jurisdiction of the High Court as contemplated under this Article. It is unnecessary to refer in detail to the relevant provisions preceding the incorporation of this Article in the Constitution of India. It is enough to state that the jurisdiction to superintend was conferred upon the Supreme Court of the three Presidency towns and the same was also incorporated in Section 9 of the Indian High Courts Act, 1861. When the Government of India Act, 1915, was enacted, Sections 9 and 15 of the Indian High Courts Act, 1861, which together comprised the Superintending jurisdiction of the High Courts, came to be replaced by Section 107 of the Government of India Act, 1915. Under Section 224 of the Government of India Act 1935, the power to superintend conferred upon the High Court under Section 107 was curtailed to a certain extent so far as the judicial part of it was concerned, inasmuch as Sub-section (2) of Section 224 provided,

(3.) Mr. B. C. De has urged that If an alternative effective remedy is open, the High Court will not exercise its jurisdiction under Article 227 of the Constitution. It is true, no doubt, that the Supreme Court in the case of A. V. Venkateswaran, AIR 1961 SC 1506 and the High Court of Bombay in the case of Syed Kassam Ibrahim, AIR 1956 Bom 545 and the Calcutta High Court in the case of Haripada Dutta, AIR 1952 Cal 526 Save laid down that where an alternative remedy 5s open, the High Court will, as a rule, not interfere either under Article 226 or 227. That, in fact, is a well known consideration in determining whether the High Court should give relief by way of issuing a writ or in its power of superintendence, although the aforesaid decision of the Supreme Court makes it clear that it is not an inflexible rule and it is a matter of discretion for the High Court to be exercised on a consideration of a variety of individual facts. In the present case, Mr. B.C. De has referred to Sub-section (1E) of Section 146, Code at Criminal Procedure, which lays down that an order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction. It is true, no doubt, that an order under this section can be reopened by way of regular suit for declaration of title, but that, in itself, will be hardly a ground for the refusal by the High Court to exercise its jurisdiction under Article 227 in a suitable case. If that view were taken, even a judgment containing a flagrant violation of legal principles, or principles of natural justice, would also be upheld, which is putting the matter in the extreme form, and I am not inclined to agree with Mr. B. C. De in so far as his contention is based on Sub-section (1E) of Section 146.