TIKUDA Vs. STATE

JUDGEMENT

(1.) This is a reference arising out of an application in revision by one Tikuda against the order of the Additional Sessions judge, Jaipur District, dated the 15th Of October, 1959.

(2.) The facts giving rise to it are that on the 24th of June, 1959, the petitioner presented an application to the Superintendent of Police, Amber, requesting him to take proceedings against Ghasi Balai and 6 others under Section 107 of the Code of Criminal Procedure. The Superintendent of Police forwarded that application to the Station House Officer, Police Station, Govindgarh. After investigation, the Station House Officer, Govindgarh, presented a report in the court of the Sub-Divisional Magistrate, Amber, requesting him to take proceedings against Ghasi and 6 others under Section 107 of the Code of Criminal Procedure. It was stated in the said report that a field (Khasra No. 24), appertaining to what was known as Kothi Nadiawali, was in the possession and cultivation of the petitioner Tikuda since Samvat year 2009, that on the 23rd of June, 1959, the petitioner had to put in a few cart-loads of manure in the said field, that the non-petitioners Ghasi and his six companions went to the said field armed with lathies and restrained the petitioner from manuring and cultivating the field by show of force. It was, therefore, prayed that the seven non-petitioners should be bound down to keep peace under Section 107 of the Code of Criminal Procedure. It was further prayed that immediate measures were necessary for the prevention of breach of the peace and, therefore, pending the completion of the inquiry, the non-petitioners should be directed to execute bonds for keeping the peace under Section 117 of the Criminal Procedure Code. On receipt of this report on the 29th of June, 1959, the Sub-Divisional Magistrate passed an order under Section 112 of the Criminal Procedure Code and directed notices to be issued to the non-petitioners to appear on the 7th of July, 1959, and show cause why they should not be ordered to execute bonds in the amount of Rs. 500/- each with one surety for the like amount for keeping peace for a period of one year. On the 7th of July, 1959, the petitioner presented another application to the Magistrate requesting him again to pass an order under Section 117(3) of the Code of Criminal Procedure. The case was, however, adjourned five times for one reason or the other which need not be narrated here. Eventually when the case came up before the Magistrate on the 27th of July, 1959, the Prosecuting Sub-Inspector and counsel for the petitioner both pressed their request for taking immediate measures under Section 117(3) of the Code of Criminal Procedure. Counsel for the non-petitioners contested that application and suggested that the court should proceed under Section 145 of the Criminal Procedure Code, that the property should be attached under section 146 of the Code of Criminal Procedure and the case should be referred to the revenue court, where a suit for declaration and permanent injunction in respect of the disputed property filed by the petitioner was already pending. This suggestion found favour with the Magistrate and he converted the previous proceedings under Section 107 to those under Section 145 of the Code of Criminal Procedure. Then, relying on Bugga Natha v. Moona Nanda, ILR (1959) 9 Raj 381: (AIR 1959 Raj 153 (1)) he passed an order for attaching the property in dispute, appointed the Tehsildar as-a receiver and referred the case under Section 146 of the Code of Criminal Procedure to the revenue-court where a suit for declaration and permanent injunction was pending. Aggrieved by this order, the petitioner filed a revision application in the court of the Sessions Judge, Jaipur District. It was heard by the Additional Sessions Judge, Jaipur District, and dismissed-by him on the 15th of October, 1959. The petitioner then filed the present revision application-in this Court. It came for hearing before a learned Single Judge on the 25th of January, 1961. Learned Counsel for the petitioner raised twofold contentions on that date. It was urged, in the first instance, that the provisions of Section 146(1) could be applicable only after an inquiry under Section 145 of the Criminal Procedure Code, if the Magistrate was of the opinion that none of the parties was in possession of the disputed property on the date of the preliminary order or he was unable to decide as to which of the parties was in possession of the said property on that date. It was urged that in the present case the par-ties were not called upon to file their written statements, affidavits or documents, that no inquiry as contemplated by Section 145 of the Criminal Procedure Code was ever made and, therefore, the Magistrate had committed a mistake in proceeding under section 148(1), Criminal Procedure Code. The second contention was that under Section 146(1) the reference could be made only to a civil court and not to a revenue court and therefore the reference was illegal. The learned Judge thought that although the first contention was covered by a decision of a Division Bench of this Court in Rugga's case, ILR (1959) 9 Raj 381: (AIR 1959 Raj 153(1)), there was a difference of opinion about the second contention in Ghisa v. State, ILR (1959) 9 Raj 673 and State v. Kesva Sen, ILR (1960) 10 Raj 945: (AIR 1960 Raj 279). He, therefore, considered it proper to refer the matter to a Division Bench. The case then came for decision before a Divi-sion Bench on the 22nd of February, 1961. It was held by the Division Bench that the difference of views expressed by two learned Single Judges in ILR (1959) 9 Raj 673 and ILR (1960) 10 Raj 945: (AIR 1960 Raj 279) was set at rest by a Division Bench decision of this Court in Ramratan v. Madho, Criminal Ref. No. 286 of 1960 decided on 19th of January, 1961. The Division Bench approved the view taken in Ghisa's case, ILR (1959) 9 Raj 673 and dissented from the view taken in ILR (1960) 10 Raj 945: (AIR 1960 Raj 279). In other words, it was held in Ramratan's case, referred above that the term 'civil court' appearing in Section 146(1), Criminal Procedure Code, did not include a revenue court. The Court, however, found it difficult to agree with the view taken in Rugga's case, ILR (1959) 9 Raj 381: (AIR 1959 Raj 153 (1)) on the first point and therefore it considered it proper to refer the matter to a Full Bench. This is how the case has come before us.

(3.) Now the first question which arises fordetermination by this Court is, whether in a case where a dispute about a certain immovable property is pending before a revenue court, if an application under Section 145, Criminal Procedure Code, is presented by one of the parties before a Magistrate, he should not call upon the parties to file their written statements or affidavits in support of their respective possession over the disputed property and whether he should not decide the question as to which of them was in possession of the disputed property on the date of the preliminaryorder and whether the proper course in such a case for the Magistrate is just to pass an order ofattachment under Section 146(1), Criminal Procedure Code, and refer the matter to the revenue court. In Rugga's case, ILR (1959) 9 Raj 381 : (AIR1959 Raj 153(1)) a suit for permanent injunction was brought by Rugga in the court of Assistant Collector, Nawa, restraining Ratna and others from inter-fereing with his possession over certain fields. The Assistant Collector granted a temporary injunction in favour of Rugga and also confirmed it. Ratna filed an appeal to the Additional Commissioner, who stayed the operation of the temporary injunction. It may be mentioned here that eventually the Additional Commissioner dismissed the appeal and the same order was upheld by the Board of Revenue, but during the period intervening between the vacation of the temporary injunction: and the disposal of the appeal by the Additional Commissioner Ratna sought to dispossess Rugga and therefore Rugga had to file an application under Section 145, Criminal Procedure Code, in the court of the Magistrate. This application was decided by the Magistrate against him and therefore he filed a criminal revision. When the case came before a division bench of this Court it was held that since a suit in the revenue court was already proceeding about the field in dispute, the Magistrate should not have proceeded to enquire into the factum of possession and that he should have proceeded afterattaching the field as provided in the latter part of Section 146(1) of the Code of Criminal Procedure, namely, that he should have referred the matter to the revenue court for decision as a suit was already pending there in which both the questions of title and of possession were to be decided. The Magistrate was directed to attach the field again, and to appoint a receiver till the revenue suit was decided.