ISHAR DASS Vs. GAURI LAL

JUDGEMENT

(1.) THE sole question upon which the decision of this reference turns is: is an application u/s 145 Cr. Pr. Code maintainable when the dispute in regard to possession of the land is already pending disposal before a civil court in which it has also issued a temporary injunction restraining one party from interfering with the possession of the other party over it.

(2.) THE petitioner filed an application u/s 145 Cr. Pr. Code against the respondent before Tehsildar Executive Magistrate, Bhadarwah, on 14 -7 -1979, alleging that the latter was trying to forcibly interfere with his possession over the proprietary land. On this, preliminary order was also passed on the same day. The parties filed their claim and counter claims and also supported the same by affidavits and other documentary evidence. The case was later on transferred to S. D. M. Bhadarwah. At the time of final arguments before him it was urged on behalf of the respondents that a civil court being already seized of a suit relating to the same subject matter, and the said court having also issued a temporary injunction that was still in force, proceedings u/s 145 were not maintainable. This contention having prevailed with him, the learned S.D.M. finally disposed of the application by his order dated 2 -5 -1981 in these words :

(3.) THE petitioner challenged the aforesaid order in revision before Sessions Judge, Bhadarwah, who being of the opinion that the learned S. D. m could not have dropped the proceedings except on the ground that breach of peace had ceased to exist, has made a reference to this court that the order of the S, D. M. may be set aside and he be directed to conclude the proceedings in accordance with the provisions of Section 145 giving due consideration to the evidence produced by the parties. According to the learned Sessions Judge, once proceedings u/s 145 have been commenced, the Magistrate is bound to conclude them in accordance with the procedure laid down in the section and cannot drop them midway except on the ground that the breach of peace which originally existed has ceased to exist. He cannot drop the proceedings merely because the same dispute is subjudice before a civil court in a civil suit that has been instituted prior to the commencement of those proceedings.