SANA BARAL Vs. S B MOHANTY

JUDGEMENT

(1.) IN this revision application the petitioners have challenged the order dated 31.12.2002 passed by the learned Executive Magistrate, Nimapara in Criminal Misc. Case No. 187/01 holding that the proceedings under Section 145 of the Code of Criminal Procedure (in short, "the Cr PC") initiated on the basis of Non -FIR No. 49/2001 of Konark Police Station is maintainable.

(2.) OPPOSITE party No. 1 initiated a proceedings under Section 144, Cr PC, on the basis of a report submitted by IIC Konark Police Station and issued notice to the petitioners to appear and file show -cause. In response, the petitioners filed their show -cause alleging the maintainability of the proceedings on the ground that the lands in question are joint family properties and preliminary decree has been passed by the competent civil Court in T.S. No. 11/121 of 1988/83 declaring that opposite party No. 2 is entitled to 1/3 share of the suit properties and final decree proceeding is pending for carving out the shares. Opposite party No. 1, however, rejected this plea of the petitioners and held that in spite of the order of the civil Court and in spite of pendency of final decree proceeding, the proceeding under Section 145, Cr PC, is maintainable. Aggrieved by the said order, the petitioners have filed this revision.

(3.) THE issue as to whether a proceeding under Section 145, Cr PC, can be maintained when civil litigation is pending between the parties for the self -same property was analysed by the Supreme Court in the cases of Ram Sumer Purl Mahant v. State of U.P. and Ors. , Amresh Tiwari v. Lalta Prasad Dubey and Anr., AIR 2000 SC 1504 :, 2000 (2) ECr C 667 (SC), Ranbir Singh v. Dalbir Singh and Ors. , and by this Court in the cases of Arjun Ch. Samal and Ors. v. Ananta Ch. Dash and Ors. , Radhamohan Panda and Ors. v. Brundaban. , Basanta Kr. Sahoo and Anr. v. Ruksen Sahoo, 1989 (II) OLR 308, Dhirendranath v. Niranjan, 1989 (II) OLR 495, Choudhury Prafulla Kumar Das and Anr. v. Lingaraj Rath and Anr. , and several other cases. In all these cases the uniform Observation is that when dispute relating to property is pending in civil Court involving question of title and possession and the parties can approach the civil Court for any interim relief like injunction, appointment of receiver, continuation of a proceedings under Section 145, Cr PC, for the self -same property is improper. In the case of Amresh Tiwari (supra) the Division Bench of the Apex Court clarified the position stating thus : -