SURENDTRANADN DAS Vs. TILOTTAMA DAS AND ANR.

JUDGEMENT

(1.) THE second party in the proceeding has filed this revision petition under Section 397 read with Section 401, Code of Criminal Procedure assailing the order passed by the learned Executive Magistrate, Cuttack on 19 -6 -1990 converting the proceeding under Section 144, Code of Criminal Procedure to one under Section 145, Code of Criminal Procedure.

(2.) TO appreciate the contentions raised on behalf of the parties, it is necessary to state in short the factual backdrop of the case. The Petitioner claims to have been adopted by late Dhruba Charan Das, husband of opposite party No. 1, his adoption is seriously disputed by the latter. Indeed, the opposite party No. 1 has filed a suit (Tide Suit No. 362 of 1986) in the Court of the Subordinate Judge, First Court, Cuttack in which the Petitioner is impleaded as Defendant No. 3. The reliefs sought in the suit are inter alia, to partition the suit properties and deliver possession of her 1/3rd share therein to her and to permanently restrain the Defendant No. 3 not to enter upon the suit land and to interfere in the possession of the Plaintiff in any manner. In the said suit on the application filed by the Plaintiff seeking interim injunction an order has been passed, directing both the parties to maintain status quo. The suit is pending for trial. In the meantime on the report submitted by the local police a proceeding under Section 144, Code of Criminal Procedure was initiated on 20th of April 1990 which was converted to one under Section 145, Code of Criminal Procedure by the impugned order, a day prior to the expiry of the statutory period of sixty days.

(3.) THE position is too well settled to admit of any doubt that in a case where the parties have already approached the civil Court in respect of the dispute relating to the case land and the question of possession is being or will be considered in the suit, it is inappropriate for the criminal Court to initiate a proceeding under Section 145, Code of Criminal Procedure for consideration of the question of possession of the land. If any decision is necessary in support of the above principle, I may refer to the decision of the Apex Court in the case of Ram Sumer Puri Mahant v. State of U.P. and Ors. reported in : A.I.R. 1985 S.C. 472 and the decisions of this Court in the case of Radham Jhan Panda v. Brundaban Naik, reported in : 1986 (I) O.L.R. 586 and in the case of Keshab Das and Ors. v. Bauribandhu Behera and Ors. reported in : 1986 (II) O.L.R. 211. In all these decisions it has been stressed that since the Civil Court is the final Court competent to decide on the dispute regarding tide and possession of die disputed land, the parties are already before the said forum and it is open to them to approach the Court for appropriate interim arrangement by filing application for injunction or appointment of receiver, etc. the Criminal Court which is bound by the decision of the Civil Court in the matter should not initiate any proceeding under Section 145, Code of Criminal Procedure. That is not to say that in appropriate cases the Magistrate will have no jurisdiction to initiate any proceeding under the section.