KESHAB DAS Vs. BAURIBANDHU BEHERA

JUDGEMENT

(1.) Second party members in a proceeding under section 145 of the Code of Criminal Procedure, are the petitioners and have challenged the order of the Additional Sessions Judge who in revision has set aside the order of the Magistrate dropping the criminal proceedings.

(2.) Opposite parties who are first party members initiated a proceeding under section 144 of the Code of Criminal Procedure in respect of the disputed properties and, on that application, the learned Magistrate restrained the petitioners from going upon the land by order dated 26 3.1983. After hearing the petitioners and on perusal of the show cause filed by them, the learned Magistrate came to the conclusion that there existed apprehension of breach of peace pertaining to the possession of the land in question and, therefore; he converted the proceeding to one under section 145 of the Code of Criminal Procedure. In the said proceeding, it was asserted by the petitioners that the said proceeding was misconceived since a civil litigation between the parties in respect of the self-same land was already pending before the Sub-ordinate Judge, being numbered as T.S. No. 214 of 1983 and, therefore, the competent court to deal with the property in question would be the Civil Court. The learned Magistrate accepted the aforesaid contention raised on behalf of the petitioners and ultimately by order dated 6/6/1983 dropped the said proceeding. The learned Magistrate also took into account the police report submitted on 13/4/1983 which indicated that there was no apprehension of breach of peace. Against the aforesaid order, the first duty members carried a revision and the learned Additional Sessions Judge disposed of the said criminal revision by the impugned order, dated 12.9.1984. The learned Additional Sessions Judge came to the conclusion that mere pendency of a civil suit would not take away the jurisdiction of the learned Executive Magistrate to continue the proceeding under section 145 of the Code of Criminal Procedure and further there was no material to show that in respect of the same property the civil suit is pending between the parties. On the aforesaid conclusion, the learned Additional Sessions Judge vacated the order of the Magistrate dated 66.1983 and directed the Magistrate to decide the case in accordance with law.

(3.) Mr. Misra, the learned counsel for the petitioners contends that the learned Additional Sessions Judge has not taken a proper view of the legal position and in the facts and circumstances of the present case, continuance of a proceeding under section 145 is wholly misconceived. There is no dispute between the parties that in respect of the self-same properties a title suit is pending between the parties in the Court of the Subordinate Judge being numbered as T.S. No. 214 of 1983. Further, it is also not disputed that in the said civil suit, present opposite party No. 3 filed an application against some of the petitioners and others for an order of injunction under order 39, Rule 1. Code of Civil Procedure, and the learned Subordinate Judge by order dated 17.9.1984 dismissed the said application. It is also further admitted by the counsel appearing for the parties that the said order of injunction has been appealed against and is pending before the appellate court. The question for consideration, therefore, would be whether in the aforesaid circumstances, a parallel criminal proceeding under section 145 of the Code of Criminal Procedure can be permitted to be continued. This matter has been considered by the Supreme Court in a recent case of Ram Sumer Pun Mahant v. State of U.P. and others. It has been held by their Lordships in the aforesaid case: 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 initiating a parallel criminal proceeding under section 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 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 (underlining is mine) In this particular case, parties did approach the Civil Court for interim order of injunction and having become unsuccessful there the matter is carried in appeal and is pending before the appellate court. In this view of the matter the law laid down by the Supreme Court in the aforesaid case applies with full force to the present case. That apart, the police report referred to by the learned Magistrate indicates that there was no existence of apprehension of breach of peace. Consequently, the learned Additional Sessions Judge was in error to direct the Magistrate to continue the proceeding under section 145 of the Code of Criminal Procedure.