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Judgment
Shah, J.—The above noted Revision Petitions are placed before us on a reference made by his Lordship the Chief Justice for disposal of the
questions raised by a learned Judge of this Court on the controversy of the scope of proceedings under Section 145 of the Code of Criminal
Procedure during the pendency of a Civil Suit
In Criminal Revision No. 78 of 1984, the proceedings were militated before learned Judicial Magistrate, Ramban on an application filed by
respondents Gani Joo and three others against the petitioners on March 26, 1984 under Section 145 of the Code of Criminal Procedure; The
matter was taken tap by the learned Judicial Magistrate for consideration on March 27, 1984, who after satisfying himself on taking into
consideration the affidavits and the documents filed by the respondents found that there is imminent apprehension of breach of peace on spot over
the question of possession of the disputed house. He, therefore, passed the preliminary order on the date calling upon the other side to file their
objections and further called upon the parties to file their documents and affidavits in respect of their claims in regard to the question of possession
regarding the disputed house. He also considered the petition under Section 145, subsection (4) of the Code of Criminal Procedure separately
filed by the respondents praying for attachment of subject of dispute, of which the learned Magistrate also took cognizance and issued notice to the
other side returnable by 3rd of April, 1984. The application was contested by the petitioners/respondents. Inter alia a preliminary objection was
also raised against the maintainability of the petition under Section 145 of the Code of Criminal Procedure alleging that a civil suit relating to the
same premises was also pending in the Court of SubJudge in the Original Suit passed an interim order requiring the parties to maintain the status
quo and denied that there was any .such incident denoting any apprehension of the breach of peace, hence prayed for the dismissal of the petition.
The learned Chief Judicial Magistrate by his order dated August 24, 1984 disposed of the petition under Section 145 of the Code of Criminal
Procedure holding on the basis of the documents produced before him that he was convinced that the device made by the non applicant by forcible
entering into the house and procuring the status quo order will not frustrate the object of making an order of attachment, which is vented in a
Criminal court under subsection (4) of Section 145 of the Code of Criminal Procedure to prevent likelihood of the breach of peace on the spot.
On his satisfaction, he found that there is strong apprehension of breach of peace likely to be caused by the existing dispute as to the property. He,
therefore, directed that the first floor of the house described in his order disputed in the present proceedings be attached forthwith and be kept
under lock and key. Police Station, Ramban was directed for the compliance of the order of attachment and handingover the key to the Nazir of
the Additional Sessions Judge, Rambanu The, petitioners Ghulam Mohiuddin and another being aggrieved against the said order of the Magistrate
filed this Revision Petition under Section 439 read with Section 561A of the Code of Criminal Procedure for the quashment of the order.
In Criminal Revision No. 90 of 1982, proceedings were initiated before Chief Judicial Magistrate, Jammu under Section 145 of the Code of
Criminal Procedure on the application of the Dharam Chand (Respondent in the present petition) filed on February 3, 1982 raising a dispute over
possession of House No. 143 situated at Mohalla Rehari, Jammu, with which there was a likelihood of the breach of peace. It was contended in
the petition that he was in possession of the two rooms of the house and rented out the other rooms to the tenants. There was litigation with regard
to one room and kitchen which was [forcibly occupied by the petitioner in 1979, who filed a suit for ejectment against the respondent in the Court
of SubJudge (C. J. M.), Jammu, in which the evidence was being recorded. During the progress of the. suit, the petitionerOm Parkash threatened
the respondent to dispossess him and forcibly occupied one room and one kitchen in the first floor of the house, which was vacated by one S
Himat Singh the tenant. It is further alleged that on December 29, 1981 at about 130 P. M. the petitioner with the assistance of several others
entered into the rooms marked red in the enclosed site plan with the petition broke open the locks' and started throwing on road the household
articles of the respondent and unlawfully dispossessed hiia by force. Coupled with other allegations, it was contended that a situation on the spot is
very explosive as a result of which there is every apprehension of breach of peace on the spot, hence a prayer was made to initiate proceedings
under Section 145 of the Code of Criminal Procedure and for restoration of the two rooms forcibly occupied by the petitionerOm Parkash. The
learned Magistrate on February 16, 1982 after recording his satisfaction passed a preliminary order satisfying himself that there is a likelihood of
the breach of peace and directed the other side by notice to file his objections with respect to the property in dispute calling upon the parties to put
up their respective claims on February 23, 1982. A notice was also issued of show cause why the subject of dispute be not attached.
The petition was contested by the petitioner contending that the SubRegistrar (Munsiff), Jammu by his order dated 111982, which later on was
extended in the Civil Suit on 1121982 till further orders issued an injunction for maintaining status quo during the currency of which the proceedings
under Section 145 of the Code of Criminal Procedure are not maintainable. It was also contended that the application for attachment under
Section 145 of Cr. P. C. is also not maintainable and on several other grounds. The learned Magistrate after considering the claim of the respective
parties the affidavits and the documents produced before him by his order dated May 18, 1982 found that the respondent Dharam Chand was
wrongfully dispossessed within two months from the date the preliminary order was passed, hence allowed the application. Respondent Dharam
Chand was held in possession of the two rooms, the subjectmatter of dispute in House No. 143 and directed the restoration of possession in his
favour until evicted there from in due course of law and also forbid all disturbances until such eviction. The petitionerOm Parkash went in revision
against the order, which was disposed of by learned Sessions Judge, Jammu on November 26, 1982 upholding the order passed by learned Chief
Judicial Magistrate, Jammu. Being aggrieved against the order passed by the learned Sessions Judge, the petitioner filed a revision petition before
this Court challenging the orders passed by the two courts below. When this revision came up for hearing, His Lordship by his order dated
December 14, 1984 directed that this revision be also heard by the larger bench with Criminal Revision No. 78 of 1984, in which the point in
controversy is referred for decision of the larger bench
On the above said premises, as a plea was raised that when a Civil Suit is pending in respect of a subject of dispute and the civil court has
issued an order of temporary injuction/statusquo, the proceedings under Section 145 of the Code of Criminal Procedure would not lie, which are
liable to be dropped. Number of authorities were cited before the learned Single Judge from both the sides, who formulated a question :
As to whether proceedings u/s 145 Cr. Pr. Code are competent during the pendency of a civil case in respect of the disputed property is main
question which needs determination.
While making a reference on the facts and circumstances of the case in Criminal Revision Petition No. 78 of 1984, learned Single Judge of this
Court by his order dated August 18. 1984, laid the following propositions for consideration by a larger bench :
(1) As to whether pendency of a civil suit and operation of temporary injunction, status quo issued in respect of the disputed property, which is
the subject matter of proceedings u/s 145 Cr. Pr. Code will preclude the Judicial Mag; or the Executive Magistrate from initiating proceedings and
concluding the proceedings which had been brought before the said Magistrate u/s 145 Cr. Pr. Code and as to whether Magistrate would be
justified to stay the criminal proceedings on account of civil litigation pending in respect of the disputed property ?
(2) As to whether Magistrate's Jurisdiction is ousted to take cognizance of dispute u/s 145 Cr. Pr. Code pertaining to property mentioned in the
said section when the conditions for taking cognizance of a dispute are satisfied. in terms of Sec. 145 Cr. Pr. Code merely because a civil suit in
respect of the disputed property is pending between the parties ?
The learned Judge has also mentioned that there appears to be conflict in the Single Bench Judgments of this Court on the point at issue reported in
1982 K. L. J. 357 (Ishar Dass Vs. Gauri Lal) and 1977 (VIII) J&K L, R. 391 (Razak Dar and ors Vs. Mst. Rehmti and ors) propound the view
that during the pendency of a civil suit, if an injunction or status quo order is in operation about the disputed property; proceedings under Section
145 of the Cr. Pr. Code should not be initiated. Whereas in 1972 J&K L. R. 268 (AksarulTaided Ahal Tashian Vs. Rasool Dar and Ors) relying
on the authority of the Hon'ble Supreme Court in Sujan Singh Vs. Sujjan Singh, 1970 U. R. (S. C,) 75, it has been held that pendency of a civil
suit or an existence of an order of temporary injunction/ status, quo. existed regarding disputed property is no bar for initiation and conclusion of
proceedings under Section 145 of the Code of Criminal Procedure.
We have heard the learned counsel for the respective parties at length. Learned counsel for the petitioners at the out set submitted that in, view
of the authoritative pronouncement by the Supreme Court reported in A. I. R. 1985 S. C. 472 (Ram Sumer Puri Mahant, Appellant Vs. State of
U. P. and others, Respondents) dispute stood resolved in the light of which the reference be answered. It is strenuously argued that 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. Hence in the instant case due to the existence of proceedings before the civil court, the criminal court should not be allowed to
continue the proceedings under Section 145 of the Code of Criminal Procedure. Their Lordships of the Supreme Court in the above case found :
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"". (Emphasis supplied by us)
The words ""has been adjudicated"" are of significance, which clearly denotes that their lordships while dealing with a case where the civil court had
the opportunity of adjudicating the question of possession and the matter was before the appellate Judge, In that context, therefore, their Lordships
held as follows :
There is no scope to doubt or dispute the petition that the decree of the Civil Court is binding on the criminal court in a matter like the one before
us. Counsel for respondent 25 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 of 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"".
In the instant reference, we are called upon to answer the question in the light of the legal propositions without reference to the merits of the
cases, because in consequence of the answer, the cases will be decided on merits by the Single Judge, We are, therefore, concerned mainly with
the legal aspect of the matter, on which the arguments were concentrated. Before proceeding to discuss the authorities cited before us by the
counsel for the respective parties, we would like to mention in seriatim the propositions laid down by the authorities taken note of by the learned
Single Judge.
In 1982 K. L. J. 357 (Supra), Mr. Justice I.K. Kotwal, as he then was, was dealing with a case, in which an application under Section 145 of
the Code of Criminal Procedure (for short hereinafter called the Code) before the Executive Magistrate, Bhadarwah, the proceedings were
dropped by the Magistrate on the ground that a temporary injunction by the Civil Court was granted in that case when the proceedings under
Section 145 of the Code were initiated, it was, therefore, concluded on the Ground that the Executive Court has no jurisdiction t(c) make any
order under Section 145 of the Code till the temporary injunction is in force. The Hon'ble Judge of this Court, therefore, held :
Where, therefore, a civil court has issued a temporary injunction in favour of party to a suit, restraining the other party from interfering with its
possession over the suit land that finding is much binding on the Magistrate, as the finding recorded at the conclusion of the trial. The Magistrate,
while such an injunction is still in force, cannot start or continue parallel proceedings u/s 145 merely to end them up with repeating the same finding
as has been recorded by the civil court. If he is bound to ultimately uphold that finding, which in fact he is, 'he should either stay his hands off and
leave the civil court to enforce its own order by taking coercive measures against the party in fault, or should proceed u/s 107 Cr. Pr. Code against
the said party, in case he is of the opinion that to do so would be necessary for preventing breach of peace. Commencement or continuance of
parallel proceedings u/s 145 in such a case will be clearly unnecessary and unwarranted"".
In another case 1977 (VIII) J&K L. R. 391 (Supra), the learned Single Judge Mr. Justice Main JalaludDin, as he then was dealing with a case
where on an application of the petitioner in that case under Section 145 of the Code the other side was called upon after preliminary order and
attachment of the subject matter of dispute to appear before the Magistrate and file their objections, the party in reply file two attested copies of
the judgment of Civil Court where temporary injunction in respect of the subjectmatter of the dispute was passed in favour of the respondents
restraining the petitioners from interfering with the possession of the respondents of the land in dispute. His Lordship while discussing the scope of
Section 145 of the Code has also taken into consideration an unreported decision of the Supreme Court in 1970 U. R. C. J. (SC): 75 noticed by
the learned Single Judge also held :
In the instant case it is noticed that the order of injunction issued by the civil court has the effect that the petitioners are restrained from interfering
with the possession of the Respondent. In that view of the matter the proceedings under Sec. 145 Criminal Procedure Code are wholly
misconceived. However as the civil case between the parties is still going on and no final decision has been given by the civil court, it will be
appropriate to ask the Magistrate to stay proceedings under Section 145 Cr. P. C. till the disposal of the suit.
In 1972 J&K L. R. 268 (Supra), Mr. Justice Mufti BahaudDin Farooqi, as he then was, held the contrary view relying on the nonreported
decision of the Supreme Court referred to above 1970 S. C, (U. R) 75 and held as follows :
Summing up the true legal position is(i) that the jurisdiction of a Magistrate is not ousted simply because the suit about the same immovable
property is pending in a civil Court, (ii) that if there is a recent decision interim or final, of a competent Civil Court regarding possession of the
disputed property between the contending parties, a Magistrate acting under section 145 Cr. P. C. should respect, and follow it.
In this case on the facts and circumstances ultimately the learned Judge held :
Applying these principles to the instant case the fact that a civil suit was pending between the parties or that a temporary injunction had been
issued therein could not provide any justification for the Magistrate to stay the proceedings.
From the above said discussion of the authorities, it comes out that so far as 1982 K. L. J. 357 (Supra) is concerned the view taken in the said
case is in the line with the decision of the Supreme Court reported in 1985 S. C. 472 (Supra), where as the view taken in 1977 J&K L. R. 391
(Supra), it lays down that the proceedings under Section 145 of the Code should be stayed till the civil proceedings are finally decided and in 1972
J&K L. R. 268 (Supra) contrary to the above two decisions, the view is that the continuance of proceedings under Section 145 of the Code
despite the pendency of the civil suit or the existence of the order of temporary injunction is no bar. In another case decided earlier on July 4,
1961, Mr. Justice Syed Murtaza Fazal Ali, as he then was, also took the view that when the parties are same and issues identical in a civil suit and
there is danger of two contradictory orders coming into existence the court will certainly stay the criminal proceedings. This case though decided
much earlier is reported in S L. J. 1980 J & K 343 (Shambu Nath Vs. Mohd Bhat & ors.) That was a case where prior to the initiating of the
proceedings under Section 145 of the Code, a civil suit was pending, Yet there is another authority of this Court touching the same point by
referring Judge reported in 1985 K. L. J. 185 (Haji Habib Ullah Shah & ors V/s S. H O. & ors), where also such a dispute was raised. In that
case the civil suit was pending between the parties on the date when the preliminary order was drawn in proceedings under Section 145 of the
Code, wherein the view was taken :
Merely because a civil suit is pending the proceedings under Section 145 Cr. P. C. in respect of the property which is subject matter of the civil
suit will not be barred. It is the order of interim injunction passed by the civil court in a civil litigation which may or may not affect jurisdiction of the
Magistrate to deal with a dispute under Section 145 Cr. P. C, but the order of ad interim injunction must be in force and must be in unambiguous
terms. If there is no order of ad interim injunction in respect of the property against one or the other party, power of Judicial Magistrate to take
cognizance under Section 145 Cr. P. C. cannot be questioned when he is satisfied that cognizance is required to be taken.
In A. I. R. 1968 S. C. 1444 (R. H. Bhutani, Appellant Vs. Miss Mani J. Desai arid others, Respondents), where a case was brought under
Section 145 of the Code before the Magistrate and the other side took the plea by filing a Civil Suit that because of the pendency of the civil suit,
no dispute existed on that day and there was no likelihood of breach of peace. Their Lordships discussing on the scope of Section 145 of the
Code on the facts and circumstances of that case held :
The object of Section 145, no doubt is to prevent breach of peace and for that end to provide a speedy remedy by bringing the parties before the
court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court.
Referring to a decision of the Bombay High Court reported in A. I. R. 1926 Bombay 91 (Bai Jiba Applicant Vs. Chandulal AmbalalOpposite
Party), wherein it was held:
That it would be unfair to allow the other party the advantages of his forcible and wrongful possession and the fact that time has elapsed since
such dispossession and that the dispossessor has since then been in possession or has filed a suit for a declaration of title and for injunction
restraining disturbance of his possession is no ground for the Magistrate to refuse to pass an order for restoration 0f possession once he is satisfied
that the dispossessed party was in actual or deemed possession under the second proviso"".
Learned counsel for the petitioners also placed reliance on a Single Bench authority of the Allahabad High Court reported in Crimes June Part
VI 1986 (II) 380 (Mohd. ShahidApplicant Vs. The State of U. P. and others Opp. Parties). In this case on the report of SubInspector Rajghat,
Gorakhpur dated October 13, 1980 relating to property in dispute, the Magistrate on October 16, 1980 passed a preliminary order under Section
145 of the Cr. P. C. and also an attachment order under Section 146 (1). The applicant in that case had also filed a civil suit praying for permanent
injunction. On October 14, J980, an order of injunction was passed in the case that the parties shall maintain status quo. On hearing the parties on
February 4, 1981, the injunction was confirmed directing that uptill the date of decision of the suit, the defendant will not dispossess the plaintiff.
Thus under the circumstances placing reliance on A. I. R. 1985 S. C. 472 (Supra), the Court quashed the proceedings before the Magistrate
under Section 145 of the Code leaving it open for the parties to move the 'civil Court for appropriate interim orders, if so advised. Learned counsel
for the respondents placing his strong reliance on A I. R. 1968 S. C. 1444 (Supra) and A. I. R. 1926 Bombay 91 also placed reliance on A. I. R.
1960 Mysore 203 (Imambu, Petitioner Vs. Hussenbi, Respondent), wherein it has been held :
A Criminal Court is not deprived of its jurisdiction to proceed under S. 145 in respect of immoveable property merely because it is subjectmatter
of civil litigation actually pending in a civil court"",
It is thus implicit from the above said discussion that the provisions of Section 145 of the Code are meant for a specific purpose entrusting the
jurisdiction with the Magistrate to deal with the question of possession as and when there is an apprehension of the breach of peace concerning'
any land or the water thereof. SubSection (4) further envisaged that where the Magistrate on the basis of the statements, documents and affidavits
produced before him under the provision to that subsection consider the case one of emergency, he may at any time attach the subject of dispute,
pending his decision under the Section. It is no doubt true that if there is any order between the same parties with respect to the subject of dispute,
the Magistrate is required to respect the decision and order of the Civil Court, but mere pendency of a civil suit is wholly an irrelevant circumstance
unless the dispute is adjudicated upon by the civil court or that when the proceedings under section 145 of the Code were initiated there existed an
order of interim nature like that of injunction, appointment of Receiver for adequate protection of the property, the jurisdiction of the Magistrate is
not barred. Possibility cannot be ruled out where despite order of injunction by the civil court, one of the party forcibly without due process of laws
tries to dispossess the other party, the apprehension of the breach of peace would still continue. Another possibility may be that a landlord by
taking the law in his own hand dispossess the tenant and immediately thereafter cleverly institute a civil suit or a tresspasser by taking forcibly
possession of an immoveable property files a civil suit and obtains an expert temporary injunction, the aggrieved party move the Magistrate under
Section 145 of the Code and then if it is contended that on account of the pendency of the civil litigation, the Magistrate cannot be allowed to
proceed under Section 145 of the Code and there existed no apprehension of breach of peace will mean to make the provisions of Section 145 of
the Code nugatory. It will frustrate the very purpose of the provision and encourage the wrong doers to take the law in their own hands and create
a situation, which is not otherwise permissible under law. The principle laid down in A. I. R. 1985 S. C. 472 (Supra) is entirely based on ':a
different set of circumstances and so also the Allahabad High Court authority, which cannot be disputed That in order to prevent multiplicity of
litigation, the parallel proceedings should not be allowed to continue where a civil litigation is pending between the parties after the question of
possession has been adjudicated upon and the parties are in a position to approach the civil court, which was the position in the case before the
Supreme Court and the matter was before the appellate Judge in civil litigation where the parties were left free to move for appropriate interim
orders. However, no hard and fast rule can be laid down, because each case depends upon the facts and circumstances appearing therein.
In the light of the discussion referred to above, we, therefore, find that a mere pendency of a civil suit, unless the Question of possession is
adjudicated upon by the civil court, the jurisdiction of the Judicial Magistrate or Executive Magistrate is not barred to initiate or conclude the
proceedings under section H5 of the Code. Since the proceedings before the Magistrate are purely to prevent breach of peace with respect to
irremovable property. If the possibility of a breach of peace continues despite the pendency of civil suit, the Magistrate still will have the jurisdiction
to initiate and conclude the proceedings, as the said power does not vest in the civil court. But if the civil court is seized of the matter before the
commencement of f the proceedings and has passed aneffective interim order adjudicating upon the question of possession of immoveable
property between the same parties with regard to the same subjectmatter and the parties have the opportunity to proceed to obtain an order of
injunction or for the appointment of Receiver, the continuation of parallel proceedings under Section 145 of the Code will multiply the litigation and
in that case proceedings under Section 145 of the Code shall have to be dropped, as it is now well settled that the injunction of the Court can also
be enforced through the police as held in A. I. R. 1971 Andhra Pradash 53 (Rayiapat Audamma, Petitioner Vs. Pothinoni Narasimham,
Respondent). Thus on question No, (1), our answer is as follows:
Mere pendency of a civil suit unless the question of possession is adjudicated upon by the civil court, which is subject matter of proceedings under
Section 145 of the Code will not preclude the Magistrate from initiating and concluding the proceedings, which has been brought before him, if the
apprehension of breach of peace exists. The stay of criminal proceedings on account of civil litigation in respect of the disputed property will not
serve any purpose. However, if the Civil Court has passed the order of adinterim injunction or appointed Receiver in unambiguous terms, which
was in force at the time when the proceedings were initiated, the Magistrate will have no jurisdiction to continue with the proceedings.
The question No. (2) is merely corollary of question No. (1), on which our answer is that the jurisdiction of the Magistrate will not be ousted to
takes cognizance of a dispute under Section 145 of the Code pertaining to the property mentioned in the said Section, when the conditions for
taking cognizance of a dispute are satisfied in terms of Section 145 of the Code, merely because a civil suit in respect of the disputed property is
pending between the parties.
We, therefore, dispose of the reference and answer the questions accordingly. The cases will now be laid before the Single Judge for disposal
according to law in the light of the above decision.