FATEH MOHAMMAD Vs. STATE OF U P

JUDGEMENT

(1.) The applicant has moved this application Under Section 482, Cr. P. C, praying that the order of attachment dated 6-9-1979 passed by the then City Magistrate, Gorakhpur, in Case No. 61 of 1979 be quashed.

(2.) It. would appear that a civil litigation is also pending in the Court of Civil Judge, I, Gorakhpur, namely, Original Suit No. 138 of 1979, vide its order dated 24-9-1979 (Annexure "3" to the application), the Civil Judge directed that the parties are restrained from dispossessing defendant No. 5, i.e., Fateh Mohammad, from the disputed property otherwise than in due course of law. It was further observed that the possession of the defendant No. 5 cannot be disturbed with the help of criminal court's findings or direction passed in proceedings Under Section 145, Cr. P. C-, which is at present pending.

(3.) Reliance was placed upon a single Judge decision in Bipta v. Dwarka 1961 All LJ 873. In that case there was a recent decree of the civil court declaring one party to be in possession and it was held that the matter cannot be re-agitated Under Section 145, Cr. P. C. There its, however, a latter Division Bench pronouncement in Kalap Din v. State 1970 All LJ 873. In this later pronouncement, the entire case law on the point has been considered. It has been held that the decision of civil court does not oust the jurisdiction of the Magistrate Under Section 145, Cr. P. C., nor such decision is binding upon him. It has also been held that once a proceeding Under Section 145, Cr. P. C., has been initiated and preliminary order has been passed, such proceedings cannot be dropped and has to continue. It. would appear that earlier conflicting views were expressed by the pronouncement of the Hon'ble single Judge and in that background a Division Bench was constituted and the matter was referred to the Division Bench. In earlier Division Bench case Hosnaki v. State AIR 1056 All 81: 1956 Cri LJ 168 has also been referred in the aforesaid pronouncement laying down that the Magistrate is not concerned '... whether a dispute has been decided recently by a court of competent jurisdiction'. The sole criteria is whether any apprehension of breach of peace exist and if the Magistrate is satisfied on the point and the dispute centred round any property, he has to proceed Under Section 145, Cr. P. C. without referring to the other rulings, which have been considered, I may quote the following observations in the Division Bench (supra): 26. We have, therefore, no hesitation in concluding that if a Magistrate is satisfied that a dispute in relation to immovable property giving rise to an apprehension of breach of peace exists between the parties, he should initiate proceedings Under Section 145, Cr. P. C., and that the existence of any decision of a civil or revenue court in favour of any of the disputants cannot bar the initiation of proceedings Under Section 145, Cr. P. C." In this Division Bench it has also been observed that if the judgment of civil or revenue court is produced before the Magistrate, it should be considered by him only as evidence in the case and neither such decision bars the jurisdiction of the Magistrate nor it is binding upon the Magistrate, and the Magistrate has to come to its own findings as to which of the parties were in possession on the material date.