M C PALLY Vs. B KAMBIL

JUDGEMENT

(1.) Two questions of law are raised in this revision petition by the counsel of the petitioner who is one of the members of the B Party in a proceeding under S.147 of the Code of Criminal Procedure. The first is whether the dispute in question relating to a right to have separate services conducted in a church by the B Party comes within the purview of S.147 to call for action by the magistrate. The counsel argues that the alleged dispute likely to cause a breach of the peace in the present case does not relate to a right of user of any land or water, so that S.147 is inapplicable to the case. I do not think there is any force in this contention: and it has been uniformly held by almost all the High Courts in India that such a dispute relating to a right to perform service in a place of public worship like a church falls within S.147 of the Code of Criminal Procedure. I do not propose to discuss this question at any length, because the decision of this Court in Kunhammad Makkaru v. Abdul Rahiman ( 1961 KLT 329 ) has considered the question in detail referring to the several decided cases; and I am in agreement with the view expressed by Govinda Menon J. in the said case.

(2.) The nest and the more important question raised is whether the pendency of a civil suit is a bar for action under S.147 by the criminal court. On this question, the counsel of the petitioner has relied on a decision of the Mysore High Court by Narayana Pai J. The decision is Mallappa v. Padmama (AIR 1959 Mys. 122). The learned Judge has said that the provisions of S.145 should not be invoked when a civil litigation about the identical subject matter is pending; and that when there is a choice between S.145 and 107 of the Code before a magistrate by reason of the pendency of the civil litigation, the magistrate must choose S.107 and not S.145. In the course of the judgment Narayana Pai J. has observed that the very purpose of S.145 is to prevent the breach of public peace at the instance of parties, who should, like law abiding citizens, place their dispute before a civil court and not take the law into their own hands.

(3.) The counsel has also placed the old decision of a Division Bench of the Bombay High Court in Ariya Shidya Patil In re (AIR 1927 Bom. 654), where Fawcett J. has stated that if the matter which is in dispute under S.147 has actually been adjudicated upon by a civil court, then a magistrate has no jurisdiction to enquire into a claim which is entirely contrary to that court's decree. In this Bombay case, it may be pointed out, there was a decree of 1915; and the proceedings under S.147 were started over 10 years thereafter, the subject matter of the proceedings being the subject matter of the decree itself, I Fawcett J. appears to have made a distinction between S.145 and 147 of the Code and also appears to say that under S.145 the magistrate has to make an enquiry as to possession, which may be quite contrary to title supported by a decree of a civil court, whereas if the matter falls within S.147 and has been adjudicated upon by a civil court, then the magistrate has no jurisdiction to enquire into a claim which is entirely contrary to that court's decree.