Fateh Mohammad vs State of U.P. and Others

M. Wahajuddin, J.—The applicant has moved this application u/s 482, Code of Criminal Procedure, paying that the order of attachment dated 6-9-1979 passed by the then City Magistrate, Gorakhpur, in case No. 61 of 1979, be quashed.

It would appear that a civil litigation is also pending in the court of Civil Judge, I, Gorakhpur, namely, original Suit No. 138 of 1979. Vide its order dated 24-9-1979 (Annexure "3" to the application); the Civil Judge directed that the parties are restrained from dispossessing Defendant No. 5, i.e., Fates Mohammad, from the disputed (?) otherwise than in due course of law. It was further observed that the possession of the Defendant No. 5 cannot be disturbed with the help of criminal court''s findings or direction passed in proceedings u/s 145, Code of Criminal Procedure, which is at present pending.

Reliance was placed upon a Single Judge decision in Bipta v. Dwarka 1961 AWR 658. In that case there was a recent decree of the civil court declaring one party to be in possession and it was held that the matter cannot be repaginated u/s 145, Code of Criminal Procedure. There is, however, a latter Division Bench pronouncement in Kalap Din v. State 1970 AWR 410. In this later pronouncement, the entire case law on the point has been considered. It has been held that the decision of civil court does not oust the jurisdiction of the Magistrate u/s 145, Code of Criminal Procedure, nor such decision is binding upon him. It has also been held that once a proceeding u/s 145, Code of Criminal Procedure, has been initiated and preliminary order has been passed, such proceedings cannot be dropped and has to continue. It would appear that earlier conflicting views were expressed by the pronouncement of the Hon''ble Single Judges and in that background a Division Bench was constituted and the matter was referred to the Division Bench. In earlier Division Bench case Mst. Hosanki v. State 1956 AWR 654 has also been referred in the aforesaid pronouncement laying down that the Magistrate is not concerned ''...whether a dispute has been decided recently by a court of competent jurisdiction''. The sole criteria is whether any apprehension of breach of peace exist and if the Magistrate is satisfied on the point and the dispute centered round any property, he has to proceed u/s 145, Code of Criminal Procedure. Without referring to the other rulings, which have been considered, I may quote the following observations in the Division Bench (supra):

We have, therefore, no hesitation in concluding that if a Magistrate is satisfied that a dispute in relation to immovable property giving rise to an apprehension of breach of peace exists between the parties, he should initiate proceedings u/s 145, Code of Criminal Procedure, and that the existence of any decision of a civil or revenue court in favor of any of the disputants cannot bar the initiation of proceedings u/s 145, Code of Criminal Procedure.

In this Division Bench it has also been observed that if the judgment of civil or revenue court is produced before the Magistrate, it should be considered by him only as evidence in the case and neither such decision bars the jurisdiction of the Magistrate nor it is binding upon the Magistrate, and the Magistrate has to come to its own findings as to which of the parties were in possession on the material date.

It is noteworthy that the Magistrate passed the order of attachment on 6-9-1979 (Annexure "5" to the application). An order from the civil court was obtained much later. The civil court could not interfere with the jurisdiction of the criminal court as to give any directions concerning any proceedings u/s 145, Code of Criminal Procedure. In fact, such a direction given by the civil court would be contrary to the law laid down in the case of Kalap Din (supra). The Magistrate is also not bound by such directions at all, which should not have been given by the civil court.

I have gone through the attachment order of the Magistrate. He has neither committed any irregularity nor illegality. The civil court''s injunction order even did not exist up to that date. When that is the position, the hands of the Magistrate in proceedings u/s 145, Code of Criminal Procedure, were not tied on account of any subsequent orders passed by the civil court; and as the primary object is to prevent the apprehension of breach of peace, the Magistrate is fully competent and has also the jurisdiction to give effect to his order of attachment, which is of earlier date. It would, however, be open to the Magistrate to consider the provisions of Section 146(1), Code of Criminal Procedure. There are alternative ways in which the Magistrate can act after attachment and one of the alternatives is that the Magistrate may after attachment simply directs that the attachment will continue until the dispute is determined by a competent court. By this observation I do not mean that this is the only course open to the Magistrate. The Magistrate has to exercise its own discretion as to which of the courses he should adopt.

The application u/s 482, Code of Criminal Procedure, is hereby rejected.