Chheddu and Others vs Shamsunnisa and Others

Pramod Kumar Srivastava, J—In case No. 4/2005 Chheddu and others v. Faiyaz Ali and others, under section 145 Cr.P.C. Sub-Divisional Magistrate, Bindki, Fatehpur had passed first order dated 20.5.2005 under section 145-(1) Cr.P.C. by which notice was directed to be issued to opposite parties, and on same day second order under section 146-(1) Cr.P.C. was passed for attachment of disputed property of plot No. 548, with direction to police to hand over possession of said property to any supurdgar. One opposite party of original case namely Shamsunnisa (present O.P. No. -1) had preferred two against the said two order. Criminal Revision No. 147/2005 was filed against order under section 146-(1) Cr.P.C., and another Criminal Revision No. 198/2005 was filed against order under section 145-(1) Cr.P.C. In both revisions parties were same relating to same case. Both revisions were heard together and were decided jointly by one single judgment dated 23.2.2008 of the Sessions Judge, Fatehpur. This impugned judgment dated 23.2.2008 has been challenged by Chheddu and others (first party of original case No. 4/2005). Admitted case of the parties is that civil suit No. 101/1993 Shamsunnisa v. Chheddu, is pending in the Civil Court in which rights of the parties are involved and had to be declared. In said civil suit Court had passed interim injunction order. During pendency of proceedings of said suit No. 101/1993 proceedings of case No. 4/2005 Chheddu and others v. Faiyaz Ali and others, under section 145 Cr.P.C. was started in the Court of Sub-Divisional Magistrate, Bindki, Fatehpur in which to orders under section 145-(1) Cr.P.C. for issuing notice and under section 146-(1) Cr.P.C. for attachment of property were passed. Then revisions filed against these two orders dated 20.5.2005 were allowed by impugned judgment of Sessions Court.

Learned Counsel for the revisionist contended that two orders dated 20.5.2005 under sections 145-(1) and 146(1) Cr.P.C. are merely interlocutory orders against which revision is not maintainable, therefore impugned judgment of Sessions Judge is erroneous and should be quashed.

Learned Counsel for the opposite parties No. 2 to 6 contended that proceedings under section 145 Cr.P.C. are of summary nature. If rights of parties are disputed before competent Civil Court, and right of any party is protected by the Court through interim injunction, then aggrieved party should place its grievance before the competent Civil Court and summary proceedings under section 145 Cr.P.C. are not maintainable in such cases. Parallel proceedings cannot be carried out in such cases. Since order under section 146(1) Cr.P.C. adversely affected the right of opposite parties therefore such order is not interlocutory order and revision was maintainable. There is no error or impropriety in impugned judgment. So present revision should be dismissed.

Heard learned counsels for the parties and perused records.

Settled legal position is that the recourse of section 145 Cr.P.C. can be had only when there is dispute as to possession of property only, and that too till the matter is not subjudice in the Court of competent jurisdiction. In Amresh Tiwari Vs. Lalta Prasad Dubey and Another, AIR 2000 SC 1504 : (2000) CriLJ 2226 : (2000) 4 JT 466 : (2000) 3 SCALE 206 : (2000) 4 SCC 440 : (2000) 2 UJ 1030 : (2000) AIRSCW 1467 : (2000) 4 Supreme 665 , Hon''ble Apex Court had held that:

"12. The question then is whether there is any infirmity in the order of the SDM discontinuing the proceedings under section 145 of the Criminal Procedure Code. The law on this subject-matter has been settled by the decision of this Court in the case of Ram Sumer Puri Mahant v. State of U.P. In this case it has been held as follows: (SCC pp. 428-29, para 2)

"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel Criminal proceeding under section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the Criminal Court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil Court and parties are in a position to approach the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue...."

We are unable to accept the submission that the principles laid down in Ram Sumer case would only apply if the Civil Court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumer case is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the Civil Court and parties are in a position to approach the Civil Court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue.

Reliance has been placed on the case of Jhummamal v. State of M.P. It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under section 145 of the Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under section 145 of the Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded order under section 145 of the Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An order of status quo had already been passed by the competent Civil Court. Thereafter section 145 proceedings were commenced. No final order had been passed in the proceedings under section 145. In our view on the facts of the present case the ratio laid down in Ram Sumer case fully applies. We clarify that we are not stating that in every case where a civil suit is filed, section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the Civil Court that proceedings under section 145 Cr.P.C. should not be allowed to continue. This is because the Civil Court is competent to decide the question of title as well as possession between the parties and the orders of the Civil Court would be binding on the Magistrate.

The passing of order of initiation of proceedings under section 145 Cr.P.C. is a matter that relates to dispute relating to possession only. In a circumstance when mainly title of property in question is in dispute, the same can be decided by Court or competent jurisdiction. In such a case proceeding under section 145 should not be initiated.

In present case for civil suit No. 101/1993 Shamsunnisa v. Chheddu, is pending in the Civil Court in which rights of the parties are involved and had to be declared. Therefore it is clear that both parties have dispute of ownership rights over properties, and in said civil suit Court had passed interim injunction order. In these circumstances provisions of section 145 Cr.P.C. are not applicable even if there is likelihood of breach of peace in future. For preventing likelihood of breach of peace in such cases resort can be had of provisions of sections 107 and 116 Cr.P.C., but not of section 145. Impugned judgment of learned Sessions Judge had effect of removing the illegality and impropriety committed by executive Magistrate through his order which had effect of adversely affecting the rights of opposite party and illegal interference in the judicial order of competent Civil Court, therefore the same cannot be treated as interlocutory order. Learned Sessions Judge had rightly found the proceedings under section 145 Cr.P.C. not maintainable. There appears no incorrectness, illegality or impropriety in passing the order in question. So on the basis of above discussion, findings given by learned Court below, in passing of impugned judgment appears to be justified and proper. Therefore impugned order should not be interfered with in revision. Revision therefore fails and is, accordingly, dismissed.