RAM RAJ Vs. STATE OF U P

JUDGEMENT

(1.) B. S. Chanhan, J. This revision has ben filed before this Court against the judgment and order of the Sessions Judge, Fatehpur, dated 9-9-1991 passed in criminal revision No. 122 of 1991 which has been find against the preliminary order of the Sub-Divisional Magistrate, dated 2-8-1991 passed under Section 145 (1), Crpc and dated 7-8-1991 attaching the property under Section 146 (1), Crpc criminal case No. 42 of 1991 Ram Raj v. Arun Kumar under Section 145, Crpc. By the impugned judgment and order dated 9-9-1991 learned Sessions Judge allowed the revision and quashed the preliminary order dated 2-8-1991 and attachment order dated 7-8-1991. Being aggrieved and dissatisfied the revisionists Ram Raj and others filed the present revision. At the time of hearing it is admitted by Shri S. S. Rathore, learned counsel appearing foe the revisionists, that in respect the said property civil proceedings are pending and the matter is being adjudicated upon by the competent civil court. If it is so, then there is no scope of interference by this court in its revisional jurisdiction as the matter is purely of civil nature.

(2.) THE learned Sessions Judge has made the following observations : "a civil suit is pending in the civil court. THE learned Munsif has exercised jurisdiction in granting injunction. It is settled principles of law that when a suit proceeding in the civil court, that too for declaration, a suit for injunction and declaration, a criminal proceeding under Section 145, Crpc shall not lie. Even if the suit may not be for injunction invariably amounts to a suit for declaration and without deciding the right and title of the parties the learned Munsif might not grab the injunction. THE learned Munsif has proceeded to pass injection order. In utter disregard of his order the learn ed Magistrate cannot pass orders to attach the property and divest both the parties or any particular party and to throw the property in the hands of the third person and therefore, also the order is totally illegal and without jurisdiction and a revision shall lie. It has been held in the ruling reported in 1990 ACC page 224- -Ram/7 Bind v. State of U. P. , that in view of suit pending before the civil court in view of the ruling reported in AIR 1985 SO page 472 Rom Sumer's case and AIR 1988 SC page 1978 Jhunemal's case the proceeding under Section 145, Crpc cannot continue but the learned Magistrate must record a clear cut finding on three points firstly whether the subject-matter in the proceedings is the same in proceedings under Section 145, Crpc and in the suit. It is admitted in this case that proceeding in both the case is in respect of the same property. Secondly without the proceeding before the Magistrate will amount to parallel proceedings. Definitely it shall amount to parallel proceedings because to grant injection, the learned Munsif has found out who was in possession on the date of suit and the same finding is to be recorded in the proceeding under Section 145, Crpc. THE third point is whether the con cerned party can or should approach civil court for appropriate remedy. In this case also a civil suit is filed and in that case the first party will very well get its possession decided. It has been held in this ruling that the Magistrate has to decide it as a prelimi nary issue. THE Magistrate did not decide although application has been moved for dropping the proceedings under Section 145, Crpc shall not lie. In the rulings reported in 1988 Crlj 977 Suresh Kumar v. Vijay Kumar it has been held that existence of an order of injunction of civil court creates a complete bar to the passing of any order under Section 145, Crpc".