Chakrapani Mukhi and Another vs Dhruba Charan Mukhi and Another

R.K. Das, J.—This is a petition by a 1st party in a proceeding u/s 145, Cr. P. C. The parties come from the same family and the dispute

relates to some plots in respect of three Khatas in mouza Saheba Nagar in the district of Puri.

On 16-12-64, the 2nd party filed a petition before the Subdivisional Magistrate, Bhubaneswar requesting him to take action u/s 145 Cr. P. C.,

as there was apprehension of breach of the peace concerning possession of the aforesaid disputed property. Shortly thereafter i.e. on 6-1-65, they

also filed O. S. 3 of 1965 in the court of Munsif, Bhubaneswar in respect of the same property. In the said suit, they asked for a declaration of title

and for confirmation of possession or in the alternative for recovery of possession. On 17-2-65, however, the Magistrate in pursuance of the

petition of the 2nd party dated 16-12-64 passed a preliminary order u/s 145, Cr. P. C. and attached the property. The 2nd party who are the

plaintiffs in the civil suit prayed for an ad interim injunction for restraining the defendant-petitioners from entering upon the disputed property.

Ad interim injunction was granted, but it was later on vacated after the petitioners filed objections before the civil court. The 1st party-petitioners

filed a petition before the Magistrate to drop the proceeding u/s 145, Cr. P. C. The Magistrate, however, refused to drop the proceeding,

obviously because the property was not attached by the civil court and the apprehension of breach of the peace in respect or possession of the

said property was still there. Both parties filed written statements and affidavits in support of their respective possession. The learned Magistrate

held that the 2nd party was in possession of the disputed land on the date of the preliminary order and was entitled to remain in possession of the

same until evicted in due course of law. It is against this order, the 1st party has filed this revision petition.

The main contention of Mr. Roy, learned counsel for the petitioners is that the proceeding u/s 145, Cr. P. C. should be quashed, in view of the

pendency of the civil suit between the same parties in respect of the same property.

He relied upon the decision of this Court reported in Panua Bhoi and Others Vs. Mahanta Jagannath Ramanuj Das and Others, : Dula Dei Vs.

Krupasindhu Patnaik, . The case reported in Panua Bhoi and Others Vs. Mahanta Jagannath Ramanuj Das and Others, Das was relied upon in

support of the view that the Magistrate has no jurisdiction to proceed u/s 145, Cr. P. C. where the dispute between the parties have already been

taken before the civil Court. This decision has been explained by the learned Judge himself in a subsequent decision of his reported in (1960) 26

CLT 298 in Mst. Surja Kanti Sarafani v. Rajib Lochan Saraf.

His Lordship has explained the position saying that all that was pointed out in that decision was that a final order u/s 145, Cr. P. C. is itself subject

to the decision of the Revenue Officer in an appropriate proceeding where the parties are related as landlord and tenant and there is no point in

allowing a proceeding u/s 145, Cr. P C. to continue when the parties have already approached the Revenue Officer. The question is one of

propriety and not one of jurisdiction. In a subsequent decision reported in (1956) 22 CLT 273. Sankudia Singh v. Gadadhar Jena, the position

was further explained and it was pointed out that in exceptional cases, the Magistrate where a breach of the peace is apprehended, may also start

a proceeding even after the termination of the proceeding under the Orissa Tenants Relief Act, though such oases must be rare.

In the case reported in (1959) 25 CLT 557, Champabati Dibya v. State, a regular partition suit in respect of the disputed property was pending

between the same parties. It was held that once the parties have moved the Civil Court for adjudication of their rights there is no point in starting a

proceeding u/s 145, Cr. P. C. If either party wants interim relief during the pendency of the civil suit, the civil court itself has jurisdiction to pass

interlocutory orders either under Order 39 or Order 40, C. P. C. for interim injunction or for appointment of a Receiver as may be necessary, but

the initiation of the proceeding u/s 145, Cr. P. C. after the commencement of the civil litigation is clearly misconceived. In the present case, as has

already been seen, the 2nd party filed a petition for taking action u/s 145, Cr. P. C. on 16-12-64 before the civil suit was filed and thereafter the

Magistrate passed the preliminary order on the ground that there was apprehension of breach of the peace concerning possession of the disputed

property.

Further, the ad interim injunction granted at the first stage was vacated on the objection of the 1st party. If the court would have appointed a

Receiver and given him possession of the suit property, there would have been no further apprehension of breach of the peace concerning

possession of that property, between the parties and the position would have been different. In that event, the Magistrate would have no

justification to hold that there would be any further apprehension of breach of the peace which is the foundation of his jurisdiction. But here, no

such steps were taken and in spite of the civil suit, the apprehension of breach of the peace was still there concerning possession or the property.

In the case reported in (1963) 29 CLT 111, Dhaneswar Singh v. Bandia Singh, the subject-matter of dispute in the 143 proceeding was also the

subject-matter in a suit for partition. After the passing of the preliminary decree in the partition suit, one Dhaneswar was appointed as Receiver on

1-12-59 and was directed to take possession of the property. Subsequently however, a petition was filed by Bandia Singh u/s 145, Cr. P. C.

against the Receiver on 18-11-60 on the ground that he is a bhag chasi and his possession should not be disturbed. The consent of the

Subordinate Judge was not taken to implead the Receiver as a party in that proceeding u/s 145, Cr. P. C. That matter ultimately came up before

the High Court where it was held that the entire proceeding u/s 145 is misconceived and the Receiver appointed by the civil court cannot be made

a party in a proceeding u/s 145 Cr. P. C. without the sanction of the court. It is on that ground, the proceeding u/s 145 was quashed.

In the case reported in Dula Dei Vs. Krupasindhu Patnaik, , the Magistrate did not himself go into the affidavits filed by the parties nor examined

the merits of the respective contentions to find out as to which of the parties was in actual possession. He merely relied upon a decree of the civil

court and directed delivery of possession in favour of the opposite party. Under such circumstances, the case was remanded to the trial court for

disposal according to law. This decision is clearly distinguishable and is of no assistance to the petitioners.

The primary object of a proceeding u/s 145, Cr. P. C. is the prevention of a breach of the peace arising in respect of a dispute relating to the

possession of certain immovable property. The order in a proceeding u/s 145, is interim in nature and is passed with a view to achieve one object,

i.e. to avoid a breach of the peace arising out of a dispute relating to such possession. The sole object of the inquiry is to find out as to who was in

possession of the disputed property on the date of the preliminary order and in case such a party was forcibly and wrongfully dispossessed by the

other party within two months next before the preliminary order, the Magistrate should treat the party so dispossessed as if he had been in

possession at such date and restore such party to possession under Sub-section (6) of Section 145. The criminal court has nothing to do with the

merits of the claim of the respective parties but is primarily concerned with the question of possession. The effect of the final order u/s 145 is that

the party whose possession was declared by the Magistrate shall be entitled to such possession until evicted therefrom in due course of law.

Evicted"" means nothing more than dispossessed. Thus, the successful party shall be entitled to remain in possession until dispossessed in due

course of law.

Any court whether civil or revenue or any statutory authority competent to pass an order for eviction may by such order dispossesss the party

found to te in possession by a Magistrate u/s 145, Cr. P. C.

The question, however, is if a dispute relating to the possession of the very same property is pending in a civil or revenue court or any such

statutory authority, would the criminal court still have the jurisdiction to initiate or continue the proceeding u/s 145, Cr. P. C. A Magistrate can

exercise jurisdiction u/s 145, Cr. P. C. only under exceptional circumstances, i.e., where there is likelihood of a breach of the peace concerning

any land or water. Thus, the only test is if there is existence of any breach of the peace concerning any land or water irrespective of the fact

whether a case is pending before a competent court or authority. The mere fact that a civil suit is pending is no bar to action being taken by a

Magistrate u/s 145, Cr. P. C. . The position, however, may be different if a civil or revenue court appoints a Receiver and the property remains in

the custody of the court. In that event, no question of apprehension of breach of the peace may possibly arise and in any event that court itself may

pass such order as may be necessary for the preservation of property and put the parties to term. Here, as we have seen, none of the parties chose

to take any steps before the civil court for appointment of a Receiver so as to leave the property in charge of the court, but chose to fight out their

litigation in the forum of a criminal court. Under such a situation, the contention that the proceeding u/s 145, Cr. P. C. is incompetent cannot be

accepted.

The other grievance of Mr. Roy was that the civil court might be influenced by the decision of the criminal court. This contention cannot have

any force. It is well settled by authorities that the decision in a criminal case even though relates to the same subject-matter cannot be binding upon

a civil court. In Harihar Prasad Singh and Others Vs. Mt. Janak Dulari Kuer and Others, their Lordships held that in a civil suit, the court would

not be justified in relying upon a decision given in a criminal case even though it relates to the same subject-matter. In a case reported in Ramadhar

Chaudhary and Others Vs. Janki Chaudhary, their Lordships observed that a judgment in a criminal case is admissible to prove only who the

parties to the dispute were and what order was passed. The findings of the criminal court are not admissible and the civil court is bound to find

facts for itself.

In a case reported in ilr (1902) Cal. 187, Dinomoni Choudhrani v. Brojomohini Choudhrani, the question was to what extent an order passed u/s

145, Cr. P. C. is admissible in a subsequent civil suit instituted to set aside the order passed u/s 145. Their Lordships held that such orders are

admissible in evidence on general principle as well as u/s 13 of the Evidence Act to show the fact that such orders were made. They are evidence

of the fact as to who were the parties to the dispute what the land in dispute was and who were declared entitled to retain possession. For this

purpose and to -that extent such orders are admissible.

In a decision of the Supreme Court reported in Anil Behari Ghosh Vs. Smt. Latika Bala Dassi and Others, the question in a probate case was to

what extent the finding of the criminal Court that the son of the testator murdered him is evidence in the probate proceedings. Their Lordships held

that the judgment of the criminal court is relevant only to show that there was such a trial resulting in the conviction and sentence of the son. It is not

evidence of the fact that the son was the murderer of the testator. That question has to be decided by the probate court on the basis of the

evidence before him. In view of the legal position, there cannot be any dispute that the findings of the criminal court are not binding on the civil

court which has to come to its own findings on the merits of the evidence.

There is thus no merit in the revision which is accordingly dismissed.