CHOUDHURY PRAFULLA KUMAR DAS Vs. LINGARAJ RATH

JUDGEMENT

(1.) The revision is directed against the order dated 22 -4 -1989 of the learned ' Executive Magistrate, Bhubaneswar holding the proceeding in, Crl. Misc. Case No. 813 of 1987 Under Section 145 of the Code of Criminal Procedure to be maintainable

(2.) THE short point for decision in this revision is whether in view of the pendency of civil suit and, proceeding under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short 'the Act'), the present proceeding under. Section 145, Cr. P. C. is maintainable. The property involved in the proceeding at one time was the Joint family property of the Choudhury family of Bhingarpur. A partition suit bearing O. S. No. 35 of 1931 was filed in the Court of the Subprdinate Judge, Cuttack for partition of the entire joint family property by mates and bounds. In which although preliminary decree was passed, the matter is still pending in final decree proceeding . in the meantime by virtue of the notification Under Section 3(I) of the Act, the disputed property, came under the jurisdiction of the consolidation authorities. Consolidation proceeding was started, and in the meantime the matter is pending before the Consolidation Commissioner, Bbubaneswar in revision case No. 1106 of 1986, The aforesaid factual matrix of the case is not disputed in the aforesaid premises, the question which wises for consideration is whether in view of the pendency of the civil suit as also the consolidation proceeding in competent Courts of law, a proceeding Under Section 145, Cr. P.C is maintainable,

(3.) MR . Naidu, learned counsel for the petitioners relying strongly on a decision of the Supreme Court in the case of Ram Sumer Purl Mahant v. State of U. P. and others, A. I. R. 1985 Supreme Court 472 has urged that when a civil litigation is pending for the property in. which the question of possession is involved, initiation of a parallel proceeding Under Section 145, Cr. P. C, would not be justified. It would be profitable to quote the principle of law laid down by heir Lordships in the following language : 'When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for additiating a parallel criminal proceeding under Sec 145 of the Code. 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 o should not be allowed to invoke its jurisdiction particularly when possession is being examined by the 1984 (I) OLR 111. 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 meaning less litigation. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed ....' The aforesaid principle of Jaw has also been reiterated in another recent decision of the Apex Court in the case of Jhunamal alias Devandas v. State of Madhya Pradesh and others, A. I. R. 1988 S. C. 1973. The earlier; decision of the Supreme Court referred to above was quoted with the approval in this latter case. The principle of law laid down by the Apex Court, as discussed above has also been followed in a recent decision of this Court in the case of Dhirendranath Panda alias Misra v. Niranjan Kumar Misra and others, 1989 (II) OLR 495, 68 (1989) C. L. T. 722 In the light of the foregoing discussions, I would hold that the present proceeding Under Section 145, Cr. P. C. is not maintainable. In this view of the matter, the impugned order of the learned Executive Magistrate is not sustainable.