Isshar Ali and Others vs Md. Mahibuddin Ahmed

B.L. Hansaria, J.—The jurisdiction of the criminal court in drawing a proceeding u/s 145, Code of Criminal Procedure, has been assailed by the Petitioners on the ground that a civil suit filed by the opposite party was pending at the relevant time relating to the disputed land itself, The point, therefore Which needs determination ii whether a criminal court. which springs into action in such matter to prevent the breach of the peace, is to adopt an attitude of bands-off because a civil court is in seisin of the matter. According to the Petitioner, in such an event, a proceeding u/s 107, Code of Criminal Procedure, alone is viable, and not recourse to Section 145 of the Code.

To appreciate the contention advanced by Shri Choudhury for the Petitioners in this regard, it may be stated at the thre shold that the function of the criminal court is entirely different in so far as disputes relating immovable property is concerned. The criminal court is approved in this context for the maintenance of law and order, whereas the civil court determines the right of the respective parties to own or possess the property. In fact, the foundation of the jurisdiction of the criminal court u/s 145 is an apprehension of the breach of peace, and with that object, it makes a temporary order irrespective of the rights of the parties which will have to be agitated and disposed of finally by a civil court. It is because of this that the life of the order of the criminal court is coterminus with the passing of a decree by civil court and the moment a civil court passes an order the same displaces the order of the criminal court, (See Bhinka and Others Vs. Charan Singh, ).To put it differently, Section 145, like some other sections of the Code of Criminal Procedure to with Sections 144, 147 is a preventive shield which (sic) the criminal court to pass temporary so that the (sic) of peace, if any, may be averted. These section do (sic) decide the rights of the parties except ton the limited purchase of temporarily keeping the parties at peace, as pointeded out in Brojendra Kumar v. Jitendra Chandra AIR 1960 Gau 111.

Relying on this basic distinction between the jurisdiction the two courts, Shri Bhattacharjee submits that the mere fact that the opposite party had instituted a suit against the Petitioners and had even obtained an order of injunction, could not have barred his entry in the portal of the criminal court. He refers, in this connection, to Sajjan Singh v. Sajjan Singh 1970 UJ (SC) 75, where in the third round of fight, a proceeding u/s 145 was drawn and an attachment order was also passed. Thereafter, opposite party approached the civil court and asked for a temporary injunction which was granted. The criminal court was subsequently asked to stay the 145 proceeding which was Refused and a receiver was appointed to take over possession of the property. On the High Court being approached, it was held that both the orders of attachment and appointment of receiver were valid, and that the civil court''s temporary injunction "had no effect upon the proceeding". The matter was then in an appeal to the Supreme Court who did not find any reason to set aside the order of the High Court. It is contended on the basis of this decision that the mere fact that the, civil court has granted the injunction cannot oust the juridiction of the criminal court in appropriate cases. But then, it is apparent that the criminal court should not do anything which may set at naught the effect of any injunction order passed by the civil court. That was also the view taken in Sajjan Singh (supra), though despite passing of injunction order,. criminal court may deem it fit and proper, In the facts and circumstances of the case, to pass an order of receives. In a however where the civil court itself has appointed a receive jurisdiction of the Magistrate to act contrary to civil court''s order cannot be conceded.

The above view finds adequate support from various things of the different High Courts of the country. It was stated Pritam and Another Vs. Durga Singh and Others, by the Himachal Pradesh High Court that the existence of apprehension of the breach of peace being the foundation of the jurisdiction to act u/s 145, the legality of the proceedings under this section is not affected by the pendency of the civil suit. It was opined by the learned Single Judge that, in fact, there can be no conflict between an order passed by a criminal court and that passed by a civil court as the order of the criminal court exhausts itself as soon as there is an appropriate decision of the civil court. It was, therefore, pointed out that what if required of a criminal court when a suit is pending is to approach the matter with care and caution. Similar view was expressed by a learned Single Judge of the Karntaka High, Court in P.M. Krishanamurty (1979) CriL.J. 82).

In fact, as observed in Shmrati Kaur v. Janaki Saran 1981 CriL.J. 973, situations may arise where during the pendency of the civil suit, the parties, at matter of strategy, decide to take law in their own bands to suit their convenience, say, for the purpose of obtaining an injunction order on the ground that be was in actual possession of the property. Such a contingency can be tackled only by a criminal court acting either u/s 144 calling upon the parties to refrain from going to the land on by initiating a proceeding u/s 145. If the initiation of the proceeding is not considered stringent enough to prevent breach of the peace, the property may also be attached by the Magistrate. The same purpose may not bo achieved by attachment of the civil court inasmuch as that attachment is in the nature of a preliminary step to make available the property for sale for satisfaction of the decree which may ultimately be passed the main idea behind the civil court attachment being to restrain the concerned parties from transferring or charging the property in any manner.

As per decision of the Punjab and Harayana High Court in Mohinder Singh Vs. Dilbagh Rai, , a criminal court has a role to play even after an injunction order is passed by the civil court or where it orders for maintenance of status quo. In the first case, despite order of civil court, the other side may use force to dispossess the person who had obtained the injunction which may lead to the apprehension of breach of peace. In such a situation, a criminal court would stop in not to start a preliminary proceeding, but to defend the order of civil court by no fallowing the aggressor to establish himself in possession of the subject matter of the dispute violation of the order of the Court. The Magistrate in much a situation acts to add the weight of the executive authority to the order of the civil court. Where the civil court passes an order of status quo, dangerous situation may arise because of the anxiety of both or any of the parties to get into actual possession. If the matter deteriorates because of any such action by any of the parties, the Magistrate cannot act as silent spectator. of course, where a civil court has appointed a receiver, there may not arise any possibility of dispute giving rise to a proceeding u/s 145 as the civil court removes apprehension of the breach of peace by putting the property in its custody.

Similar view was expressed by a learned Single Judge of Delhi High Court in Ashrafi Lal v. Labh Singh 1981 CriL.J. 1172, where it was held that the jurisdiction of the Magistrate u/s 145 to maintain peace cannot be affected by any order of the civil court except where: (i) a determination of rights by the civil court has become final, or (ii) the civil court has Appointed a receiver. Otherwise, the requirements of peace were said to be paramount, the orders of the civil court notwithstanding.

As the criminal court is not concerned with the, right of either of the parties regarding, possession of the disputed land, and the object of the proceeding u/s 145 being prevention of breach of peace, arising out of possession of land or water, it was stated in Chakrapani v. Dhruba Charan 1967 CriL.J. 397 (Orissa) that pendency of civil suit regarding the same property is no bar to take action u/s 145. It was, however, recognised that the position would be different if the civil court had put the property in custodia legis there by removing the cause for breach of peace.

Bacause of all what has been stated above, it cannot be beld that the proceeding in tbe present case suffered from jurisdictional infirmity because of tbe pendency of a civil litigation between the parties. Shri Choudhury did not, however, rest the oars by attacking the order dated 17.5.83 by which the proceeding vas initiated only on the aforesaid account. He further contended that the matter related to fishery right, recourse to Section 147 alone could have been taken and not to Section 145. This submission was advanced because Section 147 springs into notion when the dispute is concerning the right of use of land or water, whareas Section 145 deals with dispute concerning possession of land or water. A refereace to the agreement between the parties which was enclosed as Annexure A to the countar-affidavit shows that the same dealt with the possession and control of the fishery in question. The petition of the opposite party, on receipt of which the proceeding u/s 145 was drawn, also speaks about possession of the Raid tank, and not merely the right to use the same for culturing and catching fish. Because of all these it cannot be held that the dispute in the present case related only to the user of the tank for the purpose of fishing at distinguished from possession of the same.

8A. It is finally submittted by Shri Choudhury that what the criminal court could have done in the present matter was to draw a proceeding u/s 107 of the Code of Criminal Procedure at best. He relies on Subal Sahu and Others Vs. State of Orissa, . It has been held in this rendering that where an apprehension of breach of peace relates to right of user of land and water, normally, a proceeding u/s 147 should be initialed. If, however, the Magistrate goes in to draw a proceeding u/s 107, the same would not be without jurisdiction and could not be quashed on that ground alone. It has also been pointed out in Sardari Lal and Another Vs. The State of Punjab and Others, , that where a civil suit is pending and an interim order (sic) maintain status quo been passed by the trial Court, a proceeding u/s 145 would not be called for, and in the cases of likelihood of breach of peace despite civil court''s order, a Magistrate should, if at all, proceed against the parties u/s 107. I do not however, think if in the facts and circumstances of the present case proceeding u/s 107 was more appropriate, especially in view of the fact that the order of injunction as granted by the learned Assistant District Judge was stayed by the learned District Judge on an appeal being preferred before him, as stated by Shri Choudhury. The parties being free to take law in their own hands because of non-existence of any injunction order'' against anybody, and as the mattes relates to possession of a (sic) area wherein huge investment had been made by the parties, Section 107 would have failed to rise to the occasion and to to (sic) the real need of the situation.

I would, therefore, dismiss Criminal Revision No. 126 of 1983. The other revision is the (sic) of certain order passed by this Court on the stay petition in the first revision. It was ordered on 16.6.83, while vacating the attachment order that the party who was in possession on 17.5.83 would continue to do so. This required determination as to who was in possession on 17.5.83 when the proceeding was drawn. The learned Executive Magistrate by rulying on the assinment of T.B. (Tauzibahi) in the name or the opposite party since 1971, and payment of the same upto 1339 BSC (1982 A.D.) and the Agreement executed by the partita in 1971, held that the opposite party was in possession on the aforesid date. The grievance of shri Choudhury as to this order passed on 6.7.83 is that the report of the Assistant Settlement Officer in which these facts found place and of which mention has been made in the order of 6.7.83, was on the basis of an enquiry held at the back of the Petitioners. It is contended that had an opportunity been given to the Petitioners to sustain their case, they would have been in a position to do the same as they had also paid Tauzi Bahi revenue.

The order of 6.7.83 read along with the report of the Assistant Settlement Officer would seem to show that the Petitioners did no get adequate opportunity in establishing their case. It is accordingly ordered that let the learned Executive Magistrate decide a fresh the question as to who was in actual Possessions of the fishery on 17.5.83-on which date the proceeding u/s 145 was drawn. Till that is done, the status quo as prevailing on 27.7.83 would be maintained, to which affect there is an order of this Court rendered in Criminal Misc. case No. 337/83.

Criminal Revision No. 200/83 is accordingly disposed of as above and Criminal Revision No. 126/83 is dismissed. As the proceeding relates to a large area, it would be in the fitness things if the same itself is finally disposed of at an early date.