MAHADEI Vs. BENI PRASAD

JUDGEMENT

(1.) This is an application in revision which has been referred to a Bench of two Judges for orders. As I am particularly anxious that I should not be quoted as having decided anything beyond what I think it necessary to decide in order to dispose of this matter, I would state what seem to me to be the essential facts now before us. A magistrate received information that a dispute likely to cause a breach of the peace existed con-corning certain immovable property, namely, a house, within his jurisdiction. He took proceedings in due form under Section 145 of the Code of Criminal Procedure and came to the decision that possession over the entire house was with the present applicant Musammat Mahadei and that she was entitled to be maintained in that possession unless and until a competent court otherwise decided. In so far as he passed an order to the above effect, the case is altogether outside the revisional jurisdiction of this Court. It appears, however, that when he was preparing to pass final orders in the case the attention of the magistrate was drawn to the fact that, over and above the dispute about the house, there was a dispute between the parties with regard to certain moveables contained in the house itself. During the inquiries which had preceded the magistrate s decision, some police officer, presumably acting under Section 149 of the Code of Criminal Procedure, had ordered that the two rooms which contained this movable property should be fastened on the outside with two locks, the keys of which were to be in the possession, one of one party and one of the other. The magistrate was asked to pass some order or issue some direction about this matter, It is I think worth while to quote in detail from the record before us the order which he did pass. Now remains the question of the movable property locked up in kothris with two looks, one of each party, by the police, i. e., to whom they should be given. As regards this I am of opinion that the movable property can have nothing to do with this case under Section 145 of the Code of Criminal Procedure, because Section 145 relates only to immovables. In this case the question for determination was only possession of the house in question. As regards movable properties, the parties are at liberty to have their rights adjudicated by the Civil Court and until the decision of the Civil Court, the kothri should as heretofore remain looked up.

(2.) Following upon these words comes the formal order of the court embodying its decision in the proceedings under Section 145 of the Code of Criminal Procedure. The magistrate adds: It is further ordered that the kothris locked up by the poll with the ocks of both parties do remain looked up as heretofore unless the rights of the parties are determined by the Civil Court. The parties are at liberty to have their rights regarding the movables locked up in the kothris adjudicated by the Civil Court an to which person is entitled to get and how much.

(3.) Musammat Mahadei applies to this Court on the ground, firstly, that the orders above quoted are without jurisdiction and, secondly, that they were inconsistent with the decision in the proceedings under Section 145 of the Code of Criminal Procedure, according to which she was entitled to receive, and was ordered to receive, possession over the entire house and not over the entire house less two rooms in it. If it were merely a matter of inconsistency in the magistrate s order, or if it were possible to regard the magistrate as having, however irregularly, kept these two rooms under attachment by an order under Section 146 of the Code of Criminal Procedure, while awarding the rest of the house to the applicant, I should have thought that it was outside the jurisdiction of this Court to interfere. As the case stands the magistrate himself has expressly said that the orders which he proceeds to pass about the movables are no part of his proceedings under Section 145 of the Code of Criminal Procedure and have nothing to do with the case under that section, Nor has it been sought before us to defend the order upon the merits. If the magistrate had jurisdiction to pass this order at all it could only be under Section 517 of the Code of Criminal Procedure. It has not been supported before us as a good order under that section. It is either a bad order under that section, or it is an order which the magistrate in his judicial capacity had no jurisdiction to pass. The difficulty raised before us on behalf of the party opposing the application is based upon Section 435, Clause (3), of the Code of Criminal Procedure. The contention is that the order in question is part of a proceeding under Chapter XII of the Code of Criminal Procedure, and therefore is embodied in a record which this Court has no jurisdiction to call for. If it were necessary to determine the case upon this ground alone I should be content to say that the record has, whether rightly or wrongly, been called for by the order of a learned Judge of this Court, who was competent to decide the question of his jurisdiction to do so; and that under Section 439 of the same Code the jurisdiction of this Court is not limited to proceedings the record of which has been called for by its order, or which have been reported for orders, but extends also to oases which otherwise come to its knowledge. I should have been prepared to deal with this matter as a case which had " otherwise come to the knowledge" of this Bench, In the present case, however, I think there is no serious difficulty and I do not believe it to be covered by any of the rulings which have been cited to us. The magistrate himself expressly says that the order with which we are concerned has nothing to do with the case under Section 145 of the Code of Criminal Procedure, It is, therefore, as much apart from it as if the magistrate, in the course of his inquiry under section. 145 aforesaid, had found reason to believe from the evidence that one of the parties before him had committed an offence, such for instance as the offence of causing hurt, or of criminal intimidation, of which it behaved him at once to take cognizance, and had there and then recorded a proceeding convicting certain parties before him of such offence and sentenced them to a term of imprisonment. If he had in this irregular manner incorporated in the middle of his proceedings under Section 145 of the Code of Criminal Procedure, a proceeding which he himself quite understood to be of a wholly different nature, I am clearly of opinion that nothing in Section 435, Clause (3), of the Code of Criminal Procedure would stand in the way of this Court calling for the entire record in which the irregular proceeding was embodied, merely for the purpose of examining the said irregular proceeding and Satisfying itself as to the correctness and legality of any sentence or order therein recorded or passed. I am quite satisfied that we have jurisdiction to deal with this matter under Section 439 (1) of the Code of Criminal Procedure and, under that section read with Section 423 (c) of the same Code, I would set aside so much of the order of the magistrate as is embodied in the passages above quoted. Walsh, J.