BINAYA KUMAR ROUT Vs. ULLI BEWA

JUDGEMENT

(1.) First party member in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') is the petitioner. On the basis of a report submitted by the Officer -in -charge, Jagatisinghpur Police Station, the learned Magistrate on being satisfied that a dispute exists in relation to possession of a piece of land and there is apprehension of breach of peace, passed a preliminary order under Sub -section (1) of Section 145 of the Code by order dated 20.11.1984 and on the same date attached the land under Section 146 and appointed the Revenue Inspector, Redhua, as receiver. On receiving the notice from the learned Magistrate the second party members appeared in the proceeding and filed an application to drop the same inter alias on the ground that civil suit between the parties in respect of the self -same land is pending and the Civil Court would be fully competent to protect the property as well as to prevent breach of peace. The learned Magistrate, however, by order dated 10.1.1985 dismissed the application filed by the second party members and directed that the proceedings under Section 145 of the Code to continue. Against the said order of the learned Magistrate, the second party members carried a revision to the learned Sessions judge in Criminal Revision No. 8 of 1985. The learned Sessions judge by the impugned order allowed the revision and set aside the preliminary order under Section 145 of the Code as well as the order of attachment of the land and appointment of receiver. The learned Sessions judge took into consideration the fact of pendency of a civil suit between the parties as well as the orders of injunction passed against Binaya Kumar Rout from alienating the land till disposal of the suit as well as rejection of the prayer of said Binaya Kumar Rout for appointment of a receiver.

(2.) THE learned counsel for the petitioner in this revision seriously challenges the correctness of the decision of the learned Sessions judge mainly on the ground that initiation of a civil suit will not oust the jurisdiction of a Magistrate under the provisions of the Criminal Procedure Code and when the Magistrate was satisfied as to the existence of breach of peace in respect of the land in question, the proceeding under Section 145 of the Code must be permitted to be continued. In support of his submission he places reliance on the decision of this Court in the case of Brajamohan Nath v. Smt. Kesi Tripathy and Anr., 57(1984) C.L.T. 145. In the said case, it was held by a learned Single judge of this Court : '... The primary object of Section 145(1), Cr.P.C, is the prevention of breach of peace arising in respect of and relating to immovable property and not to determine the right and title of the parties. The Civil Court has got jurisdiction to decide the questions relating to title and matters incidental thereto. Thus, the jurisdictions of the Civil Court and the Criminal Court operate in different fields and the institution of any action in one does not take away the jurisdiction of the other, though for keeping harmony in the exercise of such jurisdiction by both, guidelines have been indicated in several judicial decisions. It is well -settled in law that mere institution of a civil suit does not take away the jurisdiction of a Magistrate to initiate a proceeding under Section 145, Cr. P. C, unless an interim arrangement has been made by the Civil Court in the matter of possession by an order of injunction or appointment of a Receiver. ...' The learned counsel for the opposite parties, on the other hand, relies upon the decision of this Court in the case of Ashok Kumar Agarwalla and Anr. v. Sankarlal Choudhury, 1974 CLR 259, where another learned single Judge of this Court held : 'The very purpose of an order under Section 145, Cr. P. C, is to prevent the breach of public peace at the instance of the parties and to compel them to have their rights adjudicated by a competent Civil Court and not to take the law into their own hands. When the parties have already approached the Civil Court and the Civil Court has made an order of temporary injunction, there is no necessity of taking recourse to Section 145, Cr. P. C ...' In my opinion, there is no conflict between the aforesaid two decisions of this Court. While on the one hand mere institution of a civil suit does not take away the jurisdiction of a Magistrate to initiate and continue a proceeding under Section 145 of the Code if the Magistrate is satisfied as to the existence of imminent breach of peace, on the other, the Magistrate may not continue the proceeding initiated by him under Section 145 of the Code and drop the same when he becomes aware of the fact that the land in question has been a subject -matter of a prior civil litigation and parties have already approached the competent Civil Court for interim relief by way of appointment of receiver or injunction, as the case may be. It would, therefore, be a discretion of the Magistrate and the said descretion should be judicially exercised depending upon the facts and circumstances of the case. In a recent decision of the Supreme Court in the case of Ram Sumer Puri Mohant v. State of U. P. and Ors., A. I. R. 1985 Supreme Court, 472, it was held : '...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 to 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. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. ...' In view of the aforesaid authoritative pronouncement and in view of the findings of the learned Sessions Judge that Title Suit No, 13 of 1983 is pending in the Civil Court and in the said civil litigation, prayer of Binaya Kumar Rout (first party member in the present proceeding) for appointment of receiver was considered and rejected and further on the prayer of the present second party members, said Binaya Kumar Rout has been injuncted from alienating the suit land in the said suit, the conclusion becomes irresistible that the parties have approached the competent Civil Court for necessary interim orders to protect the property in question and in fact orders have been passed in the said civil litigation. Consequently, the order of the learned Sessions Judge dropping the proceedings under Section 145 of the Code is, unassailable.