GHANASHYAM DASS GUPTA Vs. SUB DIVISINAL MAGISTRATE

JUDGEMENT

(1.) B. P. Singh, J. The petitioners have filed this petition under Section 482 Cr, P. C. for quashihg the impugned order dated 24th December, 1990 passed by Sub-Divisional Magistrate. Mirzapur in a case under Section 145, Cr. P. C. Arvind Kumar and Anr. v. Ghanshyam Das and Ors. The petitioners and respon dents No. 2 to 4 ate members of the same family. Formerly the family of the parties was joint. Some dispute arose as a result of which the family property was partitioned by Bhishm Prasad Gupta amongst the family members. In the said family partition the property known as Thakur Engineering Works Pvt. Ltd. along with buildings and machines situate in Kachwa Bazar, district Mirzapur and house and land situate in Kachwa Bazar fell to the share of the petitioners. Plot No, 2222 situate in village Mudali, district Varanasi and some other property fell to the share of Dina Nath Gupta, respondent No. 4. The parties were put in separate possession of the said property which fell to their respective shares of the family partition. In a suit No. 447 of 1990. which was filed by Dina Nath Gupta, respondent No. 4 against Bhishm Prasad Gupta and others in the court of Civil Judge, Varanasi, Dina Nath Gupta had admitted the existence of private partition. Subsequently, respon dents conspired with each other and the said suit was withdrawn. Now respondents No. 2 to 4 are out to disregard the family settlements. They threatened to interfere in plaintiff's possession over Thakur Engineering Works situate in Kachwa Bazar, Mirzapur and they also threatened to sell the joint plot No. 2222 situate in district Varanasi. Consequently, a Suit for injunction Suit No. 752 of 1990 was filed by the petitioners against respondents No. 2 to 4 and Bhishm Prasad Gupta on 29-10-1990. On the same day an ad interim injunction was issued by the court restraining the defendants not to interfere with plaintiff's possession over the property known as Thakur Engineering Works Pvt. Ltd. , Kachwa Bazar, Mirzapur. An objection was filed by respondents No. 2 and 3 in the Court of Civil Judge, Varanasi in Suit No. 752 of 1990 to vacate the interim injunction order and one of the main grounds raised was that civil courts at Varanasi had no jurisdiction to entertain the suit as the property Thakur Engineering Works Pvt. Ltd. was situate in Mirzapur District.

(2.) WHILE proceedings were pending in the Court of Civil Judge, Varanasi between the contesting parties, an application was moved by Surendra Kumar and others in the court of S. D. M. , Sadar, Mirzapur under Section 145, Cr. P. C, in respect of property known as Thakur Engineering Works, Mirzapur. The petitioners came to know about the said application and moved an application on 17-12-1990 in the Court of S. D. M. Mirzapur intimating the conrt that Suit No. 752 of 1990 was already pending in the in the Court of Civil Judge, Varanasi in respect of property in dispute. The S. D. M. Sadar, Mirzapur had called for some report from the police. Prior to that a Challani report was submitted by S. O. , P. S. Kachwa Bazar, Mirzapur against, ihe petitioners under Section 107/116 Cr. P. C. The contention of the petitioners is that without affording them any opportunity to put up their case, learned S. D. M. on 24- 12-1990 passed the impugned order attaching the property in exercise of powers under Section 146 (1), Cr. P. C. The contention of the petitioners was that the impugned order was not only illegal, arbitrary and without jurisdiction but was also in gross violation of all norms of principles of natural justice as the same was passed in a mechanical manner without affording any opportunity to the petitioners of being heard.

(3.) IT is true that the inherent powers of the court under Section 482, Cr. P. C. are to be used in extreme cases and very sparingly when there is reason to believe that there is misuse -of process of court. Ordinarily the High Court is not expected to intervene or interfere in a criminal proceeding under Section 145, Cr. P. C. if the proceedings are at an interlocutory stage. But where the abuse of the process of court is obvious and the criminal court has acted against the settled law, the High Court is bound to intervene and interfere in the proceedings even if the said proceedings are at an interlocutory stage. In this connection I may refer to the case of Kam Sunder Puri Mahant v. State of U. P. and Ors. , AIR 1985 SC 472. The Supreme Court has observed as follows. "there is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. We accord ingly allow the appeal and quash the order of the learned Magistrate by which the proceeding under Section 145 of the Code has been initiated and the property in dispute has been attached. "