PRAFULLA PRADHAN Vs. SURESH PRADHAN AND ORS.

JUDGEMENT

(1.) HEARD .

(2.) THE 1st Party in Crl. Misc. Case No. 284/95 of the Court of Sub -Divisional Magistrate, Angul (in short, 'SDM') has preferred this revision challenging legality and correctness of order dated 14.10.96. The aforesaid proceeding was initiated under Section 145, Code of Criminal Procedure and as stated at the Bar both the parties have already filed their written statements. It is the contention of the 1st party that he is the exclusive owner in possession of the suit property measuring Ac.3.70 decimals whereas the case of the 2nd party is that the suit property is the undivided Hindu Joint Family property of the parties and not in possession of the 1st party. It is the further case of the 2nd party members that a suit for partition with consequential relief is pending in the Court? Civil Judge (Sr. Division), Angul vides T.S. No. 13 of 1996. On consideration of that factum learned SDM passed the impugned order dropping the proceeding without conducting any enquiry. Learned SDM has also stated in the impugned order that he called for a report about the latest position regarding existence of apprehension of breach of peace and since no report was received from the police, he presumed that apprehension of breach of peace does not exist.

(3.) THE possibility of obtaining an order from the Civil Court cannot be a ground to restrict the jurisdiction of the Magistrate where after being factually satisfied about existence of apprehension of breach of peace preliminary order under Sub -section (1) of Section 145; Code of Criminal Procedure was passed. Law is well settled that multiplicity of litigation should not be allowed by permitting the parties to have parallel proceedings in civil and criminal Courts. Law is equally well settled that existence of apprehension of breach of peace between the parties concerning dispute over land or water or boundaries thereof is the sole requirement to initiate a proceeding under Section 145, Code of Criminal Procedure Thus, mere pendency of a case in Civil Court or any other Court of competent jurisdiction to adjudicate the right and title is not a debarring factor to the Executive Magistrate to initiate proceeding under Section 145, Code of Criminal Procedure if the Civil Court or any other Court of competent jurisdiction have not passed any order to avoid scramble for possession or to protect the property to avoid dispute and apprehension of breach of peace during the pendency of such proceeding in such Courts. See the cases of Prakash Ch. Sachadeva v. State of Anr. : AIR 1994 SC 1436; Charan Nayak and Ors. v. Kirtan Mohanty, (1998) 14 OCR 2941; Fagu Meher v. Bhama Meher and Ors., (1998) 15 OCR 620; and Ude Naik v. Gouranga Naik, (1999) 16 OCR 319. In view of that, the order of the learned Executive Magistrate in dropping the proceeding because of pendency of civil suit admittedly without any interim arrangement is ipso facto incorrect and not sustainable.