ISSHAR ALI AND ORS. Vs. MD. MAHIBUDDIN AHMED

JUDGEMENT

(1.) THE jurisdiction of the criminal court in drawing a proceeding under Section 145, Code of Criminal Procedure, has been assailed by the Petitioners on the ground that a civil suit filed by the opposite party was pending at the relevant time relating to the disputed land itself, The point, therefore Which needs determination is whether a criminal court. which springs into action in such matter to prevent the breach of the peace, is to adopt an attitude of bands -off because a civil court is in seisin of the matter. According to the Petitioner, in such an event, a proceeding under Section 107, Code of Criminal Procedure, alone is viable, and not recourse to Section 145 of the Code.

(2.) TO appreciate the contention advanced by Shri Choudhury for the Petitioners in this regard, it may be stated at the threshold that the function of the criminal court is entirely different in so far as disputes relating immovable property is concerned. The criminal court is approved in this context for the maintenance of law and order, whereas the civil court determines the right of the respective parties to own or possess the property. In fact, the foundation of the jurisdiction of the criminal court under Section 145 is an apprehension of the breach of peace, and with that object, it makes a temporary order irrespective of the rights of the parties which will have to be agitated and disposed of finally by a civil court. It is because of this that the life of the order of the criminal court is coterminous with the passing of a decree by civil court and the moment a civil court passes an order the same displaces the order of the criminal court, (See Bhinka v. Charon Singh : AIR 1959 SC 960). To put it differently, Section 145, like some other sections of the Code of Criminal Procedure to with Sections 144, 147 is a preventive shield which (sic) the criminal court to pass temporary so that the (sic) of peace, if any, may be averted. These section do (sic) decide the rights of the parties except ton the limited purchase of temporarily keeping the parties at peace, as pointed out in Brojendra Kumar v. Jitendra Chandra : AIR 1960 Gau 111.

(3.) THE above view finds adequate support from various things of the different High Courts of the country. It was stated Pritam v. Durga Singh : 1976 CriL.J. 91 by the Himachal Pradesh High Court that the existence of apprehension of the breach of peace being the foundation of the jurisdiction to act under Section 145, the legality of the proceedings under this section is not affected by the pendency of the civil suit. It was opined by the learned Single Judge that, in fact, there can be no conflict between an order passed by a criminal court and that passed by a civil court as the order of the criminal court exhausts itself as soon as there is an appropriate decision of the civil court. It was, therefore, pointed out that what if required of a criminal court when a suit is pending is to approach the matter with care and caution. Similar view was expressed by a learned Single Judge of the Karntaka High, Court in P.M. Krishanamurty, (1979) CriL.J. 82).