Harpal vs State of U.P. and Others

I.S. Mathur, J.—By this writ petition, the Petitioner has challenged the order dated 10.1.1994, passed by the III Additional Sessions Judge, Ghaziabad, allowing the criminal revision Nos. 215/93 Harpal v. Basudev and Ors. and 223/93, Om Pal Singh and Ors. v. State and quashing the orders dated 14.5.1993 and 18.5.1993 u/s 145(1), Code of Criminal Procedure, and 146(1), Code of Criminal Procedure, respectively, The learned III Additional Sessions Judge has further directed, by this order, that, the property shall be released in favour of the opposite parties Om Pal and others.

It appears that the police submitted a report u/s 145, Code of Criminal Procedure, on 2.5.1993 to the effect that there was a dispute between the parties relating to plot Nos. 138 and 204 of Khatauni No. 229. Village Aabidpur Kadi and there was apprehension of breach of peace in connection with the possession. A report was made to the Magistrate to draw proceedings u/s 145, Code of Criminal Procedure, on this report, the learned Magistrate passed an order u/s 145(1), Code of Criminal Procedure. He called upon the parties to maintain status quo and produce their evidence regarding possession of the land, on 18.5.1993, learned Magistrate, finding the case to be one of emergency, ordered the attachment of the property u/s 146(1), Code of Criminal Procedure. The property was accordingly attached and it was given in the Supurdgi of a Receiver on 25.5.1993. But later on Supurdar was changed and the property was given in the Supurdgi of Gram Sabha.

A suit, being suit No. 30/93 Har Pal Singh v. Paley and Ors., in respect of the same property was pending. The suit was for permanent injunction but the question of title was also involved therein. An application for temporary injunction was involved in that case and by order dated 5.2.1993, learned Civil Judge directed properties to maintain status quo.

Both the parties filed revisions against the order of the learned Magistrate. The learned III Additional Sessions Judge has allowed both the revisions with the finding that a civil suit was pending between the parties and the proceeding u/s 145, Code of Criminal Procedure, was not competent. He further directed, in the order, that the property, which according to the police report was taken from the possession of Om Pal, be released to him. The Petitioner is particularly aggrieved by the latter part of this order. It is alleged that proceedings u/s 145, Code of Criminal Procedure could not have been dropped and the Magistrate should have been directed to proceed to determine the question of possession. It is further alleged that the learned Sessions Judge has erred in holding Om Pal and others to be in possession and directing release in their favour.

I have heard learned Counsel for the parties and have perused the record. It is difficult to accept the sweeping submission of the learned Counsel for the opposite parties that, once a civil suit is pending, no proceedings u/s 145, Code of Criminal Procedure, could be initiated or continued. In Ram Sumer Puri Mahant v. State of U.P. and Ors. 1985 AWC 128, Hon''ble 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 proceeding u/s 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.

In Dharampal and others Vs. Smt. Ramshri and others, , Hon''ble Supreme Court has clarified that the determination by the civil Court may not necessarily be a final determination and it may be by way of order of injunction of appointment of receiver. The Supreme Court has observed:

The determination by a competent Court of the rights of the parties spoken of there has not necessarily to be a final determination. The determination may be even tentative at the interim stage when the competent Court passes an order of interim injunction or appoints a receiver in respect of the subject-matter of the dispute pending the final decision in the suit. The moment the competent Court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end. Otherwise, there will be inconsistency between the order passed by the civil Court and the order of attachment passed by the Magistrate. The proviso to Sub-section (1) of Section 146 itself takes cognizance of such a situation when it states that "Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of any breach of peace with regard to the subject of dispute.

A perusal of these two decisions of the Supreme Court leaves no doubt that the correct position of law is that merely because a civil suit is pending relating to the property in dispute, the Jurisdiction of the investigate to proceed u/s 145, Code of Criminal Procedure is not taken away. Where in it is pending, in regard to the same subject-matter and that suit involved title and possession, there could arise three different situations. First situation will be where the civil Court has already adjudicated upon the question of possession even though that may have been by way of an interlocutory order or where such an adjudication is made by the civil Court after the commencement of the proceedings u/s 145, Code of Criminal Procedure, and passing of the order u/s 146(1), Code of Criminal Procedure. In such a case, no doubt, the order passed by the Magistrate will come to an end or if the civil Court''s order already existed, the Magistrate will have no jurisdiction to commence proceedings u/s 145, Code of Criminal Procedure or to pass an order of attachment.

The second situation will be where the suit of the same nature is pending before the civil Court but no orders'' have been passed by that Court. In that case also, it will not be open for the Magistrate to initiate proceedings u/s 145, Code of Criminal Procedure and it will be appropriate for the parties to the dispute to approach the civil Court for appropriate orders. This obviously follows from the observation of the Hon''ble Supreme Court in R.S.P. Mahant''s case 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 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.

The third situation will be where a suit of this nature is pending, the concerned civil Court has been approached but the civil Court has not passed any order indicating adjudication of the question of possession. This will include a case where the civil Court passes an order of status quo or merely issues notice. As has been noticed by this Court time and again, the order of status quo is a very vague order. It does not determine any question between the parties. If such an order is passed, it cannot be said that the question of possession has been adjudicated upon nor it can be said that the parties have not approached the civil Court. In such a case, it will be open for the Magistrate to proceed u/s 145(1), Code of Criminal Procedure, and to pass an order of attachment u/s 146(1), Code of Criminal Procedure. This order, of course, will be subject to the order passed by the civil Court at any later stage. Normally, after issuing notice passing the order of status quo, the parties are given an opportunity of hearing and a final order is passed either granting injunction or refusing it. Once that order is passed, the proceedings u/s 145, Code of Criminal Procedure, and the order passed u/s 146(1), Code of Criminal Procedure shall become non est.

The legal position that merely on account of the pendency of the civil suit, the Magistrate will not be divested of Jurisdiction u/s 145, Code of Criminal Procedure, has been considered by this Court in two recent decisions namely Raju and Ors. v. State of U.P. and Ors. (31) 1994 ACC 537 and Raj Bahadur and Ors. v. State of U.P. and Anr. (31)1994 ACC 654. In both these cases, on an application for temporary injunction, the Court ordered the parties to maintain status quo.

In the case of Raju and Ors. v. State of U.P. and Ors., Hon''ble K.L. Sharma, J. relied upon the observation of Hon''ble Supreme Court In Ram Sumer Puri Mahants case and observed that the question of possession has not so far been adjudicated, and the interim order passed by the learned Munsif does not clearly specify the possession of either of the parties. It was accordingly held that the order of attachment passed by the Magistrate cannot be said to be illegal and if the civil Court passes a clear-cut order regarding possession of either of the two parties, the order of the Magistrate shall automatically come to an end and the order of the civil Court shall be binding on the parties as well as the Magistrate.

In the case of Raj Bahadur and Ors. v. State of U.P. and Anr., decided by Hon''ble R.R.K. Trivedi. J., the learned Judge has noticed that the order of maintaining status quo about possession remains vague and the parties are still left to get it decided by themselves by use of force or through some authority, as to which of parties was in possession of disputed property on the date the order of status quo was passed. The learned Judge further noticed that the object of proceedings u/s 145, Code of Criminal Procedure, is to maintain the law and order and prevent the parties from taking law in their own hands which may create breach of peace and that if the proceedings u/s 145, Code of Criminal Procedure are allowed to be dropped in such state of affairs, the objects of the preventive provision may be defeated. Accordingly, the learned Judge declined to interfere with the order passed by the learned Magistrate.

With respect, I fully agree with the view expressed In these two decisions.

Nothing to the contrary would appear to have been laid down in the decisions relied upon by the learned Counsel for the Petitioner and those cases are clearly distinguishable on facts. In Ghanshyam Das Gupta and Anr. v. Sub-Divisional Magistrate (Sadar) Mirzapur and Ors. 1991 AWC 517, a civil suit was pending regarding the property in dispute and an interim injunction had been Issued against the contesting Respondents and they were restrained from interfering with Petitioners'' possession over the property in dispute. The injunction order was in force when the order of attachment was passed by the Magistrate. On these facts. Hon''ble B.P. Singh, J. held that, the Magistrate had no jurisdiction to pass an order u/s 146(1), Code of Criminal Procedure. No doubt, while referring to the observation of the Hon''ble Supreme Court in R.S.P. Mahant''s case, the learned Judge has observed: "The ratio of the above cited case does not call for any ambiguity. If the civil Court is seized of a dispute between the parties relating to a piece of land or other immovable property, proceedings u/s 145, Code of Criminal Procedure, should not be initiated and no action should be taken in the said proceedings by the S.D.M. concerned." However, the following observation that "In the present case the civil suit was already pending in Varanasi regarding the property in dispute and all interim injunction had been Issued against the contesting Respondents and they were restrained from interfering with the Petitioners'' possession over the property in dispute" and that "injunction order was still In force when the impugned order was passed by the S.D.M., Sadar, Mirzapur regarding the same property" clearly indicates that the learned Judge held the order of the learned Magistrate to be bad in law because ad interim Injunction was already existing. The earlier observation cannot be read to mean that merely because a civil suit is pending the criminal Court would be incompetent to proceed u/s 145, Code of Criminal Procedure. In any view of the matter, the decision of the learned Judge is clearly based on the fact that the matter regarding possession had already been adjudicated even though by way of interlocutory order, and, as such, the learned Magistrate had no jurisdiction to pass the order of attachment.

In Ranjit Singh v. Motilal Katiyar and Ors. 1988 ACC 26 also, the injunction order was in operation. The learned Judge held the proceeding u/s 145, Code of Criminal Procedure, to be incompetent on the ground that "the civil suit where the question of possession was involved was pending in the civil Court on the date when the orders Under Sections 145(1) and 146(1), Code of Criminal Procedure, were passed in the aforesaid proceedings and an injunction order was very much in operation.

In the present case, it is not disputed that, on the date the learned Magistrate passed the impugned orders, the civil suit was pending but the only order that had been passed by the civil Court was for maintaining status quo. As already indicated above, the order of status quo is a vague order and does not determine the question of possession at all. It has also been indicated above that, merely because an order for maintaining status quo is passed, the Magistrate concerned will not be divested of his Jurisdiction u/s 145(1) or 146(1), Code of Criminal Procedure Accordingly, the orders passed by him in this case cannot be said to be illegal nor they can be said to have become illegal merely because the civil suit was pending but where the question of possession has not been adjudicated even by an interlocutory order. This is also not a case where the parties did not approach the civil Court for appropriate orders. The civil Court was approached but no orders determining the question of possession, even at an interlocutory stage, were passed. Therefore, in view of the decision of Supreme Court and the other decisions noted above, the Magistrate could not be said to be divested of his jurisdiction for initiating proceedings u/s 145(1), Code of Criminal Procedure or passing an order of attachment u/s 146(1), Code of Criminal Procedure It follows that the orders passed by the learned III Additional Sessions Judge in revision cannot be sustained in so far as it relates to quashing of the orders of the Magistrate passed u/s 145(1) or 146(1), Code of Criminal Procedure.

Since the order of the learned III Additional Sessions Judge is bad in law in regard to the quashing of the aforesaid orders of the Magistrate, his further direction for delivery of possession to opposite parties, Om Pal and others is also quite illegal. It was for the Magistrate to have investigated the question of possession Under Sub-section (4) of Section 145, Code of Criminal Procedure, after giving the parties an opportunity to adduce evidence. It is further evident from the proviso to Sub-section (4) that, if it appears to the Magistrate that any party has been forcibly or wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under Sub-section (1). he may treat the party so dispossessed as if that party had been in possession on the date of the order under Sub-section (1).

Learned Counsel for the opposite parties, however, contended that the order passed in revision has exhausted itself inasmuch as the possession had already been delivered to the opposite parties. I do not think that this could be any hindrance in passing appropriate orders in this writ petition. Since the order in revision is manifestly illegal and this error of law is apparent on the face of the record, it has to be quashed. It has already been indicated above that the consequence of quashing of this order will be that his further direction for delivery of possession to opposite parties is quite illegal. The necessary corollary would be that the property will continue to be under attachment as per order dated 18.5.1993 and if the possession has been given to the opposite parties that will have to be delivered back to the person from whom the possession had been taken subject to such further orders as may be passed by the Magistrate concerned.

It may also be made clear that the orders that have been passed by the Magistrate or the orders which he may pass hereinafter shall be subject to such orders as may be passed by the civil Court adjudicating the question of possession.

The writ petition is accordingly allowed. The order dated 10.1.1994, passed by the learned III Additional Sessions Judge, Ghaziabad is quashed and the orders dated 14.5.1993 and 18.5.1993, passed by learned Magistrate stand restored so, however, that the orders will be subject to the orders that may be passed by the civil Court, as indicated in the body of the judgment.

In the circumstances of the case, parties shall bear their own costs.