In the case of Ramchandra Aggarwal v. State of Uttar Pradesh (1966), The Supreme Court considered an important question whether the District Judge has jurisdiction under s. 24 of the Code of Civil Procedure to transfer a reference made by a Magistrate to a particular civil court under s. 146 of the Code of Criminal Procedure to another civil court.
Factual Background
The case arose this way that proceedings under s. 145, Cr. P.C. were initiated by a Magistrate on the basis of a report of a police officer to the effect that a dispute likely to cause a breach of the peace exists concerning a plot of land situate within the jurisdiction of the Magistrate between the parties mentioned in the report and praying for appropriate action under S. 145 of the Code of Criminal Procedure. The learned Magistrate upon being satisfied about the possibility of a breach of the peace made a preliminary order under s. 145, Cr. P.C., attached the property to which the dispute related and called upon the parties to adduce evidence in respect of their respective claims.
In due course he recorded the evidence but he was unable to make up his mind as to which of the parties was in possession on the date of the preliminary order and within two months thereof. He, therefore, referred the case under s. 146(1) of the Cr. P. C. to a civil court for decision, as to which of the parties was in possession at the material point of time and in the meanwhile directed that the attachment of the Property shall continue. The reference went to the court of the Munson within whose territorial jurisdiction the property was situate.
But thereafter one of the parties made an application to the District Judge under S. 24, C.P.C. for transfer of the case to some other. court. The, ground given was that in the execution case out of which proceedings under s. 145, Cr.P.C. had arisen, the same Munsiff had made an order against him depriving him of costs. The Munsiff having no objection to the transfer the District Judge’ transferred the case to the court of another Munsiff.
The opposite parties acquiesced in the order of transfer and did not raise any question as to the jurisdiction of the, transferee court to hear and decide the reference. Eventually evidence was led by both sides and a finding given by the transferee court. This finding was in favour of the second respondent. After receiving the finding the I Magistrate heard the-parties and held that it was the second respondent who was in possession at the relevant date and passed an order under s. 145(6), Cr. P.C. pursuant thereto.
A revision application was preferred by the appellants before the court of Sessions in which the objection was taken for the first time that the decision of the civil court was a nullity because it had no territorial jurisdiction over the subject-matter of the dispute. It was further contended that the District Judge had no jurisdiction to transfer the case and that consequently the ultimate order made by the learned Magistrate was a nullity. The learned Additional Sessions Judge who heard the revision application rejected these contentions on the ground that they were not raised earlier.
The appellants then took the matter to the High Court in revision. The appellants rested their revision application on the sole ground that s. 24, C.P.C. was not available in respect of a reference under s. 146(1) Cr. P.C. and that, therefore, the proceedings subsequent to the transfer of the reference from the court of one Munsiff to that of another are a nullity. The High Court permitted the point to be urged. The attack was based upon two grounds:- that the reference under s. 146(1), Cr. P.C. was to a persona designata and that the provisions of s. 24, C.P.C. were not available with respect to it. The second ground was that the proceeding before the civil court was not a civil proceeding within the meaning of s. 141, C.P.C. The High Court negatived both the grounds on which the contention was based.
Before the Supreme Court
Before the Supreme Court also, the appellant reiterated both contentions. On this contention, the court said that his attack on the order of the District Judge transferring the case under s. 24, C.P.C. was based more on the ground that the reference under s. 146(1) Cr. P.C. is not a civil proceeding than on the ground that the reference was to a persona designata.
The contention on Person designata
While deliberating on the point, the court referred the case differentiating between the two. In Balakrishna Udayar v. Vasudeva Aiyar Lord Atkinson has pointed out the difference between a persona designata and a legal tribunal. The difference is in this that the “determinations of a persona designata are not to be treated as judgments of a legal tribunal”.
In the central Talkies Ltd. v. Dwarka Prasad Supreme Court has accepted the meaning given to the expression persona designata in Osborn’s Concise Law Dictionary. 4th edn. p. 263 as eta person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular characters Section 146(1) Cr. P.C. empowers a Magistrate to refer the question as to whether any, and if so, which of the parties was in possession of the subject-matter of dispute at the relevant point of time to a civil court of competent jurisdiction.
The power is not to refer the matter to the presiding Judge of a particular civil court but to a court. When a special or local law provides for an adjudication to be made by a constituted court that is, by a court not created by a special or local law but to an existing court-it in fact enlarges the ordinary jurisdiction of such a court. Thus, where a special or local statute refers to a constituted court as a court and does not refer to the presiding officer of that court the reference cannot be said to be to a persona designata.
The contention that proceeding before the civil court is not civil proceeding
The Appellant contention was that since the proceeding before the criminal court under s. 145 is a criminal proceeding any matter arising out of it, including a reference to a civil court, does not lose its initial character of a criminal proceeding. In support of his contention, he has placed strong reliance upon the observations of Jagdish Sahai J., in Sri Sheonath Prasad v. City Magistrate, Varanasi. (1959). In that case the learned Judge was called upon to consider the meaning of the expression “civil court of competent jurisdiction” occurring in s. 146(1) of the Code of Criminal Procedure. It was contended before him that the competency of the court is to be determined not merely with respect to the territorial jurisdiction of the court but also with respect to its pecuniary jurisdiction.
The question arose because it was contended by him that the finding on a question of possession was recorded by a civil court which though it had territorial jurisdiction over the subject matter of the dispute the value of the subject matter was in excess of the pecuniary jurisdiction of the court. In the course of his judgment the learned Judge has observed: –
“that a proceeding even on reference made to a civil court retains its old moorings and does not change its character from a criminal proceeding to a civil proceeding and does not become a proceeding in the suit.”
Then he went on to point out that the criminal court still retains its jurisdiction because it could withdraw the reference from the civil court at any time and also because the ultimate decision with the respect to the dispute between the parties was to be made by the Magistrate and not by the civil court. All this, according to the learned Judge, would show that the proceeding even before the civil court would not be a civil proceeding and the idea of pecuniary jurisdiction of a court being foreign to the Code of Criminal Procedure it was not necessary to ascertain whether the court to which a reference was made under s. 146(1) Cr. P.C. had pecuniary jurisdiction over the subject matter of the dispute or not.
Answering on his contention, the court said that this decision ignores the vast ‘body of authority which is to the effect that when a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable to them.
The court referred the decision of South Asia Industries (P) Ltd. v. S. B. Sarup Singh[1] it was held that where a statute confers a right of appeal from the order of a tribunal to the High Court without any limitation thereon ‘the appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court.
The Court further referred the decision of Supreme Court in Naravan Row v. Ishwarlal in which it was held that there is no reason for restricting the expression “civil proceeding” only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits.
Delegation of Power
Then, according to the counsel of the appellant, when a magistrate refers a question as to which party was in possession at the relevant date what he does is to delegate that duty, initially resting upon him, to the civil court. In performing that duty the civil court would, therefore, be acting as a criminal court just as the magistrate would be doing where he has to decide the question himself.
While rejecting the contention the court said that, no doubt, the Magistrate, while discharging his function under the Code of Criminal Procedure under s. 145(1), would be exercising his criminal jurisdiction because that is the only kind of jurisdiction which the Code confers upon the magistrates but when the magistrate refers the question to a civil court he does not confer a part of his criminal jurisdiction upon the civil court. There is no provision under which he can clothe a court or a tribunal which is not specified in the Criminal Procedure Code with criminal jurisdiction.
[1] 74 I.A. 264