Diwakar Prasad Misra vs State of U.P.& Anr.

I. S. Mathur, J.

This petition under Section 482 Cr. P.C. is directed against the order, dated 23111992 passed by SubDivisional Magistrate, Kadipur, District Sultanpur in proceedings under Section 145 Cr. P.C.

I have heard the learned Counsel for the petitioner, learned Counsel appearing for the opposite party No. 2 and learned Standing Counsel.

The petitioner has alleged in para 7 of the petition and it has not been disputed or controverted that the opposite party No. 2 filed a civil suit for cancellation of saledeed and for injunction in the Court of Munsif North District Sultanpur on 1851989. That suit is still pending. It is also not disputed that the proceedings under Section 145 Cr. P.C. were instituted after filing of this Civil Suit. It is settled law that proceedings under Section 145 Cr. P.C. cannot be initiated or continued if a civil suit in respect of the same subjectmatter is pending. It has been so laid down in Ram Sumer Puri Mahant v. State of U.P. & Ors., AIR 1985 SC 472. The Supreme Court has observed as follows:

"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 proceedings 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 25 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the even 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."

The same view has been taken by this Court in Mushtaq Ali v. State of U.P.& Ors., 1990 LLJ 116:1990 LCr.R 161.

Accordingly, in view of the admitted facts and established legal position, the proceedings under Section 145 Cr.P.C. must be held to be incompetent and have to be quashed.

The petition is, accordingly, allowed. The proceedings under Section 145 Cr. P.C. in Case No. 91 of 1992 pending in the Court subDivisional Magistrate, Kadipur, district Sultanpur under Section 145 Cr. P.C. and orders passed under Section 146(1) Cr. P.C. or any other passed in these proceedings and relating thereto, are quashed. If the concerned party feels aggrieved he may approach the Civil Court for appropriate relief in the case already pending if he so advised. Petition allowed.