HARI PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 31.3.09 passed by the Sessions Judge, Basti in criminal revision no.632/08 whereby the revision was allowed and the Judgment and order dated 24.9.08 passed by the SDM, Rudhauli, District Basti in criminal case no.12/08, under Section 145, Cr.P.C., P.S. Kotwali, District Basti was set aside and the matter was remanded back to the trial court for proceeding according to law. It appears from the record that an application dated 28.3.05 was moved by O.P. No.2 Narsingh Prasad Chaudhary before the SDM, Sadar Basti against the petitioners and his own father late Ram Deo Chaudhary for initiating the proceedings under Section 145, Cr.P.C. It was alleged by him in the application that he is serving in Indian Army and generally remains out of his native place. On 23.2.05 he was in his ancestral village and went to cut the crops which was objected by the opposite parties, hence, it was necessary to initiate the proceedings. On the above application the concerned SDM obtained a report from the concerned police station. It was reported by the police that there was dispute between the parties over partition of the land. The applicant Narsingh Prasad Chaudhary was given his share but he was not being allowed to reap the usufructs. The recommendation was made for initiating the proceedings under Section 145, Cr.P.C. On the report the Magistrate passed preliminary order under Section 145(1), Cr.P.C. on 21.7.05 and required the parties to attend his court and to file the written statements in respect of their claims. The petitioners filed written statement in which it was alleged that there was a suit for partition between the parties pending before the 1st Additional Civil Judge (S.D.), Basti numbered as O.S. No.24/02 and therefore, the proceedings under Section 145, Cr.P.C. were uncalled for. O.P. No.2 also filed written statement in which he alleged that during the life time of his father his half share was separated and he is in possession of the same, but the petitioners are not allowing him to reap the crop and making interference in his possession. The concerned SDM was of the opinion that as a civil suit concerning the property in dispute was pending before the Civil Court, hence, there was no necessity to go ahead with the proceedings under Section 145, Cr.P.C. He accordingly, recalled the preliminary order dated 21.7.05 passed under Section 145(1), Cr.P.C. and dropped the proceedings under Section 145, Cr.P.C. vide order dated 24.9.08. THIS order was challenged in revision no.632/08 and the Sessions Judge found that as the dispute between the parties to the proceedings under Section 145, Cr.P.C. was not concerning the right to possession but was with respect to the question of possession, therefore, the proceedings under Section 145, Cr.P.C. should not have been dropped. The Sessions Judge allowed the criminal revision and remanded the matter back for re- decision by the Magistrate. Heard Mr. I.N. Singh, learned counsel for the petitioners, Mr. S.N. Singh for O.P. No.2, learned AGA and perused the record. It has been argued by Mr. I.N. Singh that when a civil suit in respect of the same property was pending between the parties, the Magistrate was not empowered to initiate proceedings under Section 145, Cr.P.C. On this point reliance was placed on a ruling reported in 1985 All. CJ 240, Ram Sumer Puri Mahant Vs. State of U.P. and others in which the Apex Court has held that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceedings under Section 145, Cr.P.C. would not be justified. It was held in this ruling that parallel proceedings should not be permitted to continue and in the event of a decree of 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. The gist of the aforesaid ruling is that the criminal proceedings under Section 145, Cr.P.C. should not be allowed to continue when the appropriate relief can be had in civil litigation. The same view was expressed by the Apex Court in 2000 All. CJ. 1611, Amresh Tiwari Vs. Lalta Prasad Dubey and another. It was held in this ruling that if the relief which has been requested for in the criminal proceedings can be obtained in the pending civil litigation, then the criminal proceedings should not be allowed to continue. Now, in view of the above, we have to see as to whether the present case was of the nature where the proceedings under Section 145, Cr.P.C. should have been dropped by the Magistrate as ordered by him. In this regard, a look at the plaint of the civil suit no.24/02 would be relevant. The pleadings of this plaint show that O.P. No.2 was aggrieved by the fact that his father was trying to sell the property which could adversely affect his rights. In this case a decree of permanent injunction was sought against Ram Deo Chaudhary not to alienate the property in dispute. Thus, the pleadings and the relief claimed would indicate that it was not a suit where the plaintiff had alleged that his possession was being disturbed by anybody. It was not a suit for possession or for declaration of title and therefore, on the basis of this civil suit there could be no propriety to drop the proceedings under Section 145, Cr.P.C. which was for the relief that the petitioners should not be allowed to interfere with the present physical possession of O.P. No.2. In view of the above, I am of the view that the dropping of the proceedings by the Magistrate solely on the ground of the pendency of civil litigation between the parties was not his correct approach and was rightly set aside by the revisional court vide impugned order dated 31.3.09. There appears no impropriety in the order impugned in this petition and accordingly, this petition is liable to be dismissed. It is, hereby, dismissed.