Case No: Civil Appeal No. 6 of 1986
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: Mr. Golam Rabbani,Mr. Mozzammal Huq,,
Citation: 40 DLR (AD) (1988) 196
Appellant: Haji Golam Hossain
Respondent: Abdur Rahman Munshi
Subject: Constitutional Law,
Delivery Date: 1986-03-17
F.K.M.A. Munim, CJ.
Badrul Haider Chowdhury, J.
Shahabuddin Ahmed, J.
M.H. Rahman, J.
A.T.M. Afzal, J.
Haji Golam Hossain
Abdur Rahman Munshi and others
March 17, 1986.
The Code of Criminal procedure (V of 1898),
Sections 439(4) and 439A(2)
The Constitution of Bangladesh, 1972
No second revision lies in view of the law in Sections 439A (2) and 439(4) of the Code of Criminal Procedure. The constitutional mandate is that a writ jurisdiction can be invoked if the High Court Division is satisfied "that no other equally efficacious remedy is provided by law." In this view of the matter there is no hesitation in saying that the appellant had another remedy e.g. by instituting a suit in the competent court, the writ petition was inappropriate. The appeal is dismissed ……………..(6, 7 & 13)
Cases Referred to-
Shahjahan Sheikh and others Vs. The Sessions Judge, Pirojpur (Criminal Appeal Nos. 48 and 49 of 1985) 38 DLR (AD) 246, Malkarjun Vs. Narahari and another, 25 (Bom) 337 P.C., Raja Indrajit Pratap Bahadur Sahi Vs. Amar Singh and others, AIR 1923 (P.C.) 128.
Golam Rabbani, Advocate instructed by Sharifuddin Chaklader, Advocate-on-Record.- For the Petitioner.
Mozzammal Huq, Bhuiyan, Advocate instructed by Md. Aftab Hossain, Advocatc-on-Record. -- For Respondents No. 1-50.
Not Represented. - For Respondent No. 11.
Civil Appeal No.6 of 1986
(From the judgment and order dated 25.11.1985 passed by the High Court Division, Dhaka in Writ Petition No. 435 of 1985.)
Badrul Haider Chowdhury J.
This appeal by special leave is directed raglans the order of the High Court Division in Writ Petition 435 of 1985.
2. Leave was granted to consider the question whether the High Court Division was justified in rejecting the petition under Article 102 of the Constitution and thereby denying any remedy to the appellant.
3. Facts arc as follows: The appellant was the first party in a proceeding under section 145 Cr.P.C. The respondents were second parties. The learned Magistrate was of the opinion that there was an apprehension of the breach of peace, so he drew up an order under section 144 Cr.P.C. on 26.11.79. Subsequently this proceeding was converted into proceeding under 145 Cr.P.C. and the disputed property was attached and the Circle Officer was appointed as receiver. Both the parties adduced their respective evidence and the learned Magistrate by order dated 27.2.82 found the appellant in possession and accordingly vacated the order of attachment etc. As against this order, the respondents filed Criminal Motion No. 9 of 1984 under section 439A of the Code of Criminal Procedure. The learned Assistant Sessions Judge, who was deemed to be an Additional Sessions Judge, after hearing the parties, set aside the judgment and order of the Magistrate by judgment and order dated 18.9.85.
4. Being aggrieved by this order, the appellant filed Writ Petition No. 435 of 1985 and the learned Judges of the High Court Division dismissed the writ petition summarily on the ground of maintainability by order dated 25. 11.85. The learned Judges, it seems, took the view that the appellant had another remedy by way of revision and the ratio of the decision in 35 DLR (AD) 127 has no manner of application. It was observed:
Leave was granted to consider the correctness of the proposition mentioned above and the dismissal of the writ petition summarily.
5. Mr. Golam Rabbani, learned Counsel for the appellant, contended that the High Court Division apparently took the view that a second revision lies whereas the decision of this Court in 35 DLR (AD) 127 in authoritative pronouncement has settled the law and there is no scope for filing second revision. The second branch of the argument was that, in that view of the matter the High Court Division ought to have entertained the writ petition on merit and not dismissing it summarily.
6. The first contention of Mr. Golam Rabbani is correct. This Court has in clear terms laid down the law that no second revision lies in view of the law in sections 439A (2) and 439(4) of the Code of Criminal Procedure. The purported distinction sought to be drawn by the learned Judge of the High Court Division was misconceived and the obiter was unwarranted.
7. Now the second branch of the argument, whether the writ petition lies against the decision of the Sessions Judge under Section 439A of the Code of Criminal Procedure. A litigant has no inherent right in procedural remedy, but appeal or revision must be given expressly by law. Since this Court has observed in 35 DLR that there is no scope for second revision, the matter ends there. That does not mean that of necessity a writ jurisdiction may be invoked. The constitutional mandate is that a writ jurisdiction can be invoked if the High Court Division is satisfied "that no other equally efficacious remedy is provided by law." What is the nature of the proceeding in the instant case. It was a proceeding under section 145 Cr.P.C. In the case of Shahjahan Sheikh and others Vs. The Sessions Judge, Pirojpur (Criminal Appeal Nos. 48 and 49 of 1985) 38 DLR (AD) 246, this Court has explained the nature and scope of the proceeding under section 145 Cr.P.C. and at what stage revisional jurisdiction would be attracted. In the present case the learned Magistrate found the possession of the first party, the appellant, whereas the re-visional court set aside the order of the learned Magistrate, The appellant invoked the writ jurisdiction but the High Court Division dismissed the petition summarily. Mr. Rabbani canvassed that the 1st party is now left without remedy.
8. This argument is misconceived, inasmuch as, the purport of the proceeding under section 145 Cr.P.C. is to find the possession of the properly and section 146(1) clearly lays down that in case he decides that none of the party was then in such possession or is unable to satisfy as to which of them was in possession, he may attach the land "until a competent court has determined the rights of the parties thereof or the person entitled to possession thereof" and in sub-section (2) if the civil court appoints any receiver "possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereby be discharged The law has brought in sharp focus the civil court to determine the rights of the parties or even possession. Since it is a question of fact that has to be adjudicated on evidence and the writ jurisdiction is not appropriate for seeking relief.
9. The Magistrate found possession in favour of the appellant. So, the appellant has no grievance. The revisional court reversed the judgment of the and the appellant consequently felt aggrieved and he filed the writ petition. As it has been observed that he had alternative efficacious remedy; and even assuming for arguments' sake that remedy is not "equally efficacious" could the appellant press his writ application and, if so, for what relief. He could not ask for a writ in the nature of mandamus that has been given under Article 102(2) (a) Clause-(I), inasmuch as, it could not be argued that the learned Sessions Judge was not permitted by law to do what he did. The learned Sessions Judge was given power under section 439A Cr.P.C.
10. Next, could the appellant invoke clause (ii) "declaring that any act done, has been done or taken without lawful authority and is of no legal effect". This clause is also not attracted in view of the conferment of jurisdiction by a court. A court in exercise of its jurisdiction can decide wrongly as well as rightly. In Malkarjun V. Narahari and another reported in 25 (Bom) 337 P.C. it was pointed by the Judicial Committee that the judicial sale was not a nullity and could not be treated as invalid notwithstanding any irregularity even though a material one, for the jurisdiction of the Court to execute had been completed throughout. "It has not been lost by the reason of the above error, mid had empowered the Court to decide wrongly as well as rightly." The aggrieved party, it was pointed out, could bring suit to impugn such sale within one year as provided by Article 12 of the Limitation Act. Their Lordships pointed out that the aggrieved party had another remedy, namely, by suit.
11. It is common knowledge in a proceeding under section 145 Cr.P.C. the Court deals only with the limited scope of finding possession and if any party is aggrieved by such finding he can take resort to the civil court for the re-dress of his grievance. In this view of the matter, there is no hesitation in saying that the High Court Division had correctly refused the writ petition summarily. But that does not mean that the appellant had been left without any remedy.
12. Mr. Rabbani could not cite any decision from any jurisdiction of the sub-continent to show that the writ jurisdiction was invoked in a 145 proceeding. The remedy for the unsuccessful party is to file a civil suit. See Flimuddin Sarkar vs. Umed Ali Bepari and others reported in AIR 1936 (Cal) 659. It was observed:
The onus is on the unsuccessful party to show that he has a better title to the property than the persons whose possession had been found by the criminal court.
13. In the case of Raja Indrajit Pratap Bahadur Sahi Vs. Amar Singh and others reported in AIR 1923 (P.C) 128 of the Privy Council noticed that in the proceeding under section 145 Cr.P.C. the defendant was found in possession. In that context it was observed:
In this view of the matter, there is no hesitation in saying the appellant had another remedy e.g. by suit and the writ petition was inappropriate.
In the result, therefore, this appeal is dismissed. No order as to costs.