M. Somasundaram vs Palanisamy Gounder and Others

Padmini Jesudurai, J.—The petitioner, who is the fifth counter petitioner in M.C. 1 of 1987 pending before the Executive First Class Magistrate and Revenue Divisional Officer, Dharapuram seeks quashing the order dated 6th April, 1987 passed by the above officer under S. 145(1), Crl.P.C.

The proceedings under S.145, Crl.P.C., were initiated before the Executive Magistrate, by the Inspector of Police, (Law & Order), Kan gay am the 5th respondent herein against respondents 1 to 4 and the petitioner. The proceedings relate to certain items of immovable property situated in Union Mambady village, Dharapuram taluk, Tiruppur Registration District.

Facts briefly are :-- The petitioner is the only son of the 4th respondent. The properties covered by the proceedings belong to the joint family consisting of the 4th respondent and the petitioner. It is stated by the petitioner that on 21st June, 1981, following a family arrangement, the 4th respondent executed a muchilika relinquishing his claim of share of the joint family property in favour of the petitioner in lieu of a sum of Rs. 35,000, and that following the execution of the above muchilika, possession of the entire property was handed over to the petitioner who was enjoying the same. Later disputes arose between the petitioner and the 4th respondent and the latter Is said to have executed a sale deed on 2nd July, 1984 for Rs. 26,600 in favour of respondents 1 to 3 in respect of the properties covered by this S.145, Crl.P.C., proceedings. Thereafter, respondents 1 to 3, filed O.S. 175 of 1984 against the petitioner and certain others in the Subordinate Judge''s court, Dharapuram, in respect of these properties and initially obtained ad interim injunction in I.A. 1795 of 1984 which later, due to failure to give notice to the caveator, the petitioner herein, was vacated. Thereafter, there was no interim order, though the petitioner herein had filed an application for injunction against respondents 1 to 3. The above petition was also pending. It is alleged by the petitioner that though the properties continued to be in his possession and the civil suit was pending from the year 1984, respondents 1 to 3 being influential, prevailed upon the fifth respondent to get a false case registered against them and on the basis of that the Executive Magistrate was persuaded to COMmence the present proceedings under S.145, Crl.P.C.

Thiru V. K. Muthuswami, Learned Counsel for the petitioner, challenges the preliminary order passed under S. 145(1), Crl, P.C, on the following grounds:

(i) The order is not in conformity with S.145(1), Crl. P.C., in that it does not indicate the grounds on which the Executive Magistrate derived satisfaction for initiating the above proceedings and that unless the facts on the basis of which the satisfaction was arrived at are indicated in the order itself it would be impossible to infer that the Executive Magistrate applied his mind to the facts and had subjectively satisfied;

(ii) Since the civil court was already seized of the matter relating to the same property in respect of the same parties, parallel and independent proceedings under S.145, Crl.P.C., ought not to have been initiated.

Per contra, Thiru B. Sriramulu, Learned Counsel for respondents 1 to 4, contended that the order indicated that the Executive Magistrate was satisfied with the grounds necessitating commencement of proceedings under S.145(1), Crl.P.C., and the material on the basis of which the above satisfaction was drawn was also mentioned and this was sufficient compliance of S. 145(1), Crl.P.C. and that though in respect of the same property between the same parties the civil suit was pending, in view of the fact that there was no interim order in the civil proceedings, the jurisdiction of the Executive Magistrate would not be automatically ousted, even if a breach of peace was apprehended.

The extract of the order under S. 145(1), Crl.P.C., would be useful to consider the first of the two contentions.

The Inspector of Police, Kangayam has filed a report in F.I.R. No. 13/87 stating that the counter petitioner referred in the F.I.R. have involved themselves in a dispute regarding the possession and enjoyment of the lands detailed below--

S. No. extent-----acres

134/1 1.96-1/2

128/C 0.63

182 1.22-1/2

The Inspector of Police has also stated that the counter petitioners mentioned above residing in Dharapuram taluk within the jurisdiction of this Court are likely to commit breach of peace or disturb the public tranquility or to do wrongful act that may probably occasion of breach of peace or distrub the public tranquility.

Since there is dispute regarding the possession of the property and there is every likelihood of both parties committing criminal acts against each other and there is likelihood of breach of peace and bloodshed and there are grounds to proceed against the counter petitioners under S.145, Crl.P.C.

I, Thiru S.S. Mani, B.A. Executive, First Class Magistrate, and Revenue Divisional Officer, Dharapuram, do hereby direct and require counter petitioners to appear at the Revenue Divisional Office on 23.3.1987 at 11.00 a.m. in person or by pleader and to put in written statement of their respective claims.

A reading of the above order would show that all that the Executive Magistrate has stated therein is that from the report of the fifth respondent herein in the F.I.R. he was satisfied that there was a dispute regarding possession of the property and there is every likelihood of breach of peace. The order does not indicate what allegations have been made in the F.I.R. and against whom they have been made. Though there is a statement that the counter petitioners referred to in the FIR have involved themselves in a dispute regarding possession and enjoyment of the land, the facts relating to the incident, which is the subject matter of the F.I.R. have not been stated in the order. The facts even in a skeleton form have not been shown in the impugned order. It is, therefore, impossible to infer that the Executive Magistrate appraised himself of the facts stated in the F.I.R. and applied his mind to the same and on a proper consideration decided to act under S.145, Crl.P.C. On the contrary, the laconic statement that he was acting on the report of the fifth respondent herein would rather show that it has more or less been passively passed.

Learned Counsel for the petitioner placed reliance upon a decision of this Court reported in Kadiresan Chettiar v. Inspector of Police, Melur and others 1982 T.L.N.J. 398, wherein the order under S. 145(1), Crl.P.C., had been struck down since the order did not indicate the fact on the basis of which the subjective satisfaction was said to have drawn. The above decision would clearly apply to the facts of this case. The contention of the Learned Counsel for the petitioner, therefore, has to be accepted and the impugned'' order has to be set aside.

Regarding the second contention that the pendency of a civil case between the parties in respect of the same property automatically ousts the jurisdiction of the Executive Magistrate to act under S.145, Crl.P.C. Learned Counsel for the petitioner places reliance upon a decision of the Supreme Court in Ram Sumer Puri Mahant Vs. State of U.P. and Others, , wherein the Supreme Court held that when a civil litigation is pending regarding a property, and the question of possession is involved and has been adjudicated upon, initiation of a parallel criminal proceeding under S.145 of, the Code would not be justified. The above decision has been followed by this Court in Govindasami Pillai v. S.I. of Police 1987 L.W. (Crl.) 111. Thiru B. Sriramulu, Learned Counsel for respondents 1 to 4 brought to the notice of this Court a decision in Vallima lal v. Ayyanar Ambalam 1987 L.W. (Crl.) 110, wherein a single Judge of this Court, referred to the above decision of the Supreme Court, and held that the above decision of the Supreme Court could only be taken to mean that when a litigation is pending regarding title and possession before the civil court, S.145 proceedings involving inquiry into the same tide and possession should be avoided, since the civil court is the ultimate authority regarding title and that the decision of the Supreme Court cannot be taken to be an authority for the proposition that S.145, proceedings cannot under any circumstances be started when civil proceedings are pending.

In the instant case, though the suit has been filed as early as in 1984, on the date of the passing of the preliminary order under S.145(1), Crl. P.O., no interim order of a civil court was in force. Initially, respondents 1 to 3 had obtained ad interim injunction and that injunction, however, had been vacated later, after notice, on a technical ground that the above injunction had been granted without notice to the caveators, viz., the petitioner herein. It is stated that the petitioner, who is the defendant in the suit, has filed an application for on injuction restraining respondents 1 to 3 from interfering with his possession and the above application was still pending. Thereafter, there was no interim order in favourt of either party.

Even when a civil suit is pending in respect of the same property, between the same parties and an interim order has been passed by the civil court in favour of either of the parties on the basis of possession, It would not be proper for the Executive Magistrate to go into that question and decide that issue. The order passed by the civil court should be given due weight and the Executive Authority has to uphold the order of the civil court. If, under these circumstances, a breach of the peace was apprehended the Executive authority could proceed against both parties under S. 107, Crl.P.C., to prevent the threatened breach of peace.

There may be situations, as in this case, where neither parties has any interim order from the civil court. Under these circumstances, if it is brought to the notice of the Executive Authority, that a breach of peace is apprehended, it would still be open to the Executive Authority to initiate proceedings under S.145, Crl.P.C.

In Ram Sumer Puri Mahant Vs. State of U.P. and Others, , the Supreme Court Was dealing with a case where the question of title and possession had been gone into by the trial Court and a verdict against the plaintiff had been given, and the suit had been dismissed. The plaintiff therein had preferred an appeal and the same was pending disposal before the Appellate Court. It was under these circumstances that the Supreme Court setting aside the order under S. 145(1), Crl.P.C. observed as follows:

When a civil litigation is pending for the property wherein the question of the possession is involved and has been adjudicated initiation of a parallel criminal proceeding under S.145, Crl.P.C. would not be justified.

(emphasis supplied)

The Supreme Court further observed that this was done in view of the fact that the decree of the civil court was binding on the criminal Court. The above principle would not apply to the facts of this case, since the question of possession had not yet been adjudicated by the civil court, and no interim order on the basis of a finding on possession was in force on the date of passing the order under S. 145(1), Crl.P.C., the parties are in a position to approach the civil court for interim orders. However, if they fail to do so for any reason and if in respect of the dispute there is an apprehension of breach of peace, the Executive Authority, being the custodian of law and order and primarily called upon to prevent any breach of peace, would be justified in invoking the provisions of S.145 of the Code to avert the breach of peace, even though the civil litigation is pending.

The above question has been considered by a Bench of the High Court of Andhra Pradesh in Harijan Yellaiah and Another Vs. State of Andhra Pradesh and Others, , wherein after considering the different decisions on the subject, the following propositions of law have been laid down:

In view of the above discussion the following findings can be arrived at--

The pendency of a civil suit between the parties in respect of the disputed land does not take away the jurisdiction of the criminal Court to initiate proceedings under S.145, Crl, P.C, if the criminal Court is satisfied that the dispute is likely to result in the breach of peace. The Magistrate however should not lightly proceed in the matter when the same is pending in civil court.

During the enquiry under S.145. Crl.P.C. if it is brought to the notice of the Criminal Court that there is an order of the civil court, in regard to the possession even by way of interim injunction, the same should be given due weight and it is expedient that the criminal Court should uphold the order of the civil Court, and it mikes no difference whether the order of the civil court was passed before or after the initiation of the proceedings under S.145, Crl.P.C. The Criminal Court should better drop the proceedings initiated under S.145 when there is such an order of injunction issued by the civil court in regard to the possession, and if necessary may initiate proceedings under S.107, Crl.P.C.

If the civil court has not issued any order with regard to the possession even by way of temporary relief, or where such order is vacated or kept in abeyance, by higher Courts, that is to say, when such order is not in force, and the criminal Court is satisfied that there is apprehension of imminent breach of peace, it can proceed with the enquiry under S.145, Crl.P.C. and pass appropriate orders, despite the pendency of the civil suit.

Since the interim order passed by the civil Court was in force, the High Court quashed the proceedings under S.145, Crl.P.C. I am in respectful agreement with the law laid down in the above decision.

In view of the fact that there was no interim order passed by the civil court, it was open to the Executive Authority to initiate proceedings under S.145, Crl.P.C. The order, therefore, cannot be quashed on the above ground. However, in view of my finding that the impugned order suffers from the illegality, pointed out by me in paragraph 8 above, the order has ultimately to be quashed.

16, In the result, the petition is allowed and the proceedings in M.C. 1/87 pending before the Executive First Class Magistrate and Revenue Division Officer, Dharapuram are quashed.