MOHAMMAD TARIK AND ANOTHER Vs. SARDAR JASPAL SINGH

JUDGEMENT

(1.) The petitioners herein are complainants. They are aggrieved by the judgment dated 2.6.2015 passed by learned Addl. Sessions Judge (II), Shimla, in Cr. Revision No. 1-S/10/2015 whereby the Revision Petition has been dismissed and the order dated 16.12.2014, Annexure P-5 passed in an application filed with a prayer to stay pending proceedings under Sec. 145 Crimial P.C. has been dismissed by learned Sub Divisional Magistrate, Shimla (Urban).

(2.) The complaint is that the question qua title of shop No. 123/7, Lower Bazar Shimla, the subject matter of dispute in the present lis and as to which party is entitled to the possession thereof is pending disposal before a competent Civil Court having jurisdiction over the matter and as such, the proceedings under Sec. 145 Crimial P.C. pending disposal before learned Magistrate below should have been stayed. The learned Magistrate has, however, dismissed the application vide order dated 16.12.2014, Annexure P-5 erroneously and without application of mind. Likewise, the Court of Revision is also stated to have erroneously dismissed the Revision Petition without appreciation of the given facts and circumstances and also the material available on record in its right perspective vide judgment under challenge. Such an approach has resulted in mis-carriage of justice to the petitioners as according to them, parallel proceedings i.e. both criminal and civil would have not been allowed to go simultaneously and rather ends of justice would have met by staying the proceedings under Sec. 145 Crimial P.C. pending before learned Magistrate below. Said proceedings, according to the petitioners, could have been revived and disposed of after the decision of the dispute qua ownership and possession of the disputed shop by the civil Court.

(3.) It is the petitioners, who allegedly are held to be in possession of disputed shop and running business therein, therefore, the proceedings under Sections 145 & 146 Crimial P.C. were not maintainable. It is pointed out that as per the settled legal principles where the civil litigation regarding the property in dispute is pending and the question of title and possession thereof is the subject matter of dispute in that lis, the Executive Magistrate has no jurisdiction to proceed further in the complaint under Sec. 145 Cr.P.C.