RAM KISHAN AND ANR. Vs. HUKUM CHAND

JUDGEMENT

(1.) THIS reference has been made by the Sessions Judge, Hamirpur, recommending thereby that the order, dated July 24, 1973, passed by the Sub -divisional Magistrate, Una, under the provisions of Section 147 of the Code of Criminal Procedure (shortly called the Code) restraining Ram Kishan and another from obstructing the flow of water till they get an order from the competent Court of law to the contrary and also directing them to show cause by appearing before him on 30 -7 -73 at 10 a.m. in his Court at Una, be quashed.

(2.) HUKAM Chand who is a Respondent before this Court had filed a complaint before the Sub -divisional Magistrate, Una, against Ram Kishan and another, the present Petitioners, alleging therein that the abadi of the parties adjoin each other and that the rain water as also the water from the kitchen of Hukam Chand used to pass through the court -yard of the present Petitioners by means of a drain since time immemorial and that Hukam Chand had acquired a right of easement and also easement of necessity to pass the water of his abadi and court -yard through the land and court -yard of Ram Kishan and another, but they were alleged to have built abadis on the land through which the water flowed and there by caused damage to the abadi of the Petitioner and to his other property. Since there was mischief on the part of the present Petitioners, the complainant brought a civil suit in t tie Court of Sub -judge Una, on 27 -6 -1973 and the said Court on the application of the Plaintiff -complainant issued an interim injunction restraining them from obstructing the flow of water through their court -yard or from raising the construction. That injunction order was served on the present Petitioners on the same day and it was only thereafter when the civil Court had closed for summer vacation that they inspite of the injunction order committed that mischief and there was apprehension of breach of peace. This complaint was filed on 20 -7 -1973. It appears that the learned Magistrate recorded the statements of the complainant and two other witnesses on 23 -7 -1973 and ordered the issue of a notice by preparation of a preliminary order. The learned Sessions Judge has while recommending the case observed that the order passed by the learned Magistrate is in the nature of absolute direction, which could not be made without conducting the enquiry contemplated by Sub -section (2) of Section 147 of the Code in the presence of both the parties and therefore the order was clearly without jurisdiction. Secondly, the Respondent, i.e. the complainant had in his petition under Section 147 per paragraph No. 5 admitted that he had approached the civil Court by a regular suit earlier on 27 -6 -1973 and obtained an interim injunction restraining the second party from obstructing the flow of water and from raising new construction. In such a situation when the civil Court was seized of the matter, proceedings before the criminal Court by way of preventive action with a view to maintaining peace became not only redundant but the criminal Courts are functus -officio and cannot carry on parallel proceedings. He has based his observation on the latter point on three authorities and he has, therefore, recommended for quashing the order as being without jurisdiction.

(3.) IN the present case it would appear that the present Respondent had averred in his petition that he had brought a suit in the Court of Sub - Judge and that an interim injunction had also been issued restraining the present Petitioners from obstructing the flow of water through their Courtyard and from raising new construction. The learned Counsel for the Respondent contends on the basis of Pritam and Anr. v. Durga Singh and Ors. : 1976 CriLJ 91 that pendency of civil suit is no bar to proceedings under the provisions. Likelihood of breach of the peace is the criterion to exercise jurisdiction under Section 145. But this case has got no application to the facts of the present case, inasmuch as in that case although a civil suit had been filed by one of the parties but not interim injunction had been obtained and when the Defendant took unlawful possession of the property then one of the parties went under Section 145 of the Code to the Court. But in the instant case there is already an interim injunction issued by the Court, the disobedience or the non -compliance of which could be punished by the civil Court.