Meenatchiammal, Velmurugan and Chitra vs Sankar, Velu @ Sivagnanavel and Venkatesan

M.M. Sundresh, J.—The petitioners have been arrayed as ''A'' Party in C.M.P. No. 6 of 2007 initiated u/s 145(1) of the Criminal Procedure Code. The petitioners are the tenants of the Temple. Alleging interference at the hands of the private respondents before this Court, a suit was filed on the file of the District Munsif Court, Vridhachalam, in O.S. No. 42 of 2007 seeking the relief of permanent injunction. The Temple also filed a suit for permanent injunction and mandatory injunction against the private respondents herein in O.S. No. 61 of 2007, pending on the file of the Sub Court, Vridhachalam. The petitioners gave the complaint, which has been registered as crime No. 112 of 2007, against the private respondents for the alleged offence u/s 506(ii) of I.P.C. apart from other offences. Another complaint was given in crime No. 119 of 2007 by the petitioners against the private respondents. The jurisdictional police officer referred the complaint u/s 145 of the Criminal Procedure Code to the learned Executive Magistrate, Vridhachalam. After issuing notice to both sides, the learned Executive Magistrate passed an order restraining the petitioners from interfering with the possession of the private respondents herein. Challenging the same, the present criminal original petition has been filed.

The learned counsel appearing for the petitioners would submit that the order passed is one without power, authority and jurisdiction. What is required u/s 145(1) of the Criminal Procedure Code is the satisfaction of the Executive Magistrate for initiating action. However, he has passed an interim order contrary to the provisions contained u/s 145(1) of the Criminal Procedure Code. Admittedly, there are civil suits pending. One civil suit is between the parties herein and the other is also on the very same issue between the landlord of the petitioners and the private respondents. At the time of the passing the order, there was an interim injunction granted by the civil Court in I.A. No. 20 of 2007 in O.S. No. 61 of 2007 against the private respondents. The learned Executive Magistrate has exceeded his power in giving a finding on title, which is impermissible in law. In support of his contentions, the learned counsel relied on the following decisions:

(i) Amresh Tiwari Vs. Lalta Prasad Dubey and Another,

(ii) R. Thiagarajan Vs. K. Angamuthu, .

(iii) J. Ameer Humza Vs. C. Srinivasan and The Inspector of Police (Law and Order),

(iv) Mrs. Thamaraiammal and Another Vs. The Executive Magistrate-cum-Revenue Divisional Officer and Another

Per contra, the learned counsel appearing for the respondents would submit that the suit filed in O.S. No. 61 of 2007 is not between the parties. In the suit filed by the petitioners, there is no order of injunction pending. The injunction granted in O.S. No. 61 of 2007 was set aside on 12.2.2008 in C.R.P. No. 2460 of 2007. The learned Executive Magistrate considered the documents available as well as the statements made by the parties for arriving at the conclusion. Therefore, no interference is required.

Section 145(1) of the Criminal Procedure Code deals with the procedures to be adopted, when there is a likelihood of breach of peace. For initiating action under the provisions of the said Section, the learned Executive Magistrate has to satisfy either from the report of the police officer or upon other information that a dispute is likely to cause a breach of peace. If he is satisfied, thereafter he shall make an order in writing incorporating the grounds of his being so satisfied. Thereafter, he has to issue notice to the parties concerned.

The scope of enquiry u/s 145(1) of the Criminal Procedure Code is with regard to the actual possession of the subject of dispute. The learned Executive Magistrate has acted in total disregard to the said provisions. Apart from following the procedures contemplated u/s 145(1) of the Criminal Procedure Code, he adopted his own procedure by arrogating himself to that of the Civil Court. When there is no power vested with the Executive Magistrate to pass the interim order, he proceeded to pass such an order that too after going into the title. Further more, at the time of passing the order, there was an order of injunction in force against the private respondents herein. It is also to be noted that the complaint was given by the petitioners and on their petition, the matter was referred to the learned Executive Magistrate.

The Hon''ble Apex Court considering the availability of the power u/s 145(1) of the Criminal Procedure Code in Amresh Tiwari Vs. Lalta Prasad Dubey and Another, held as follows:

Reliance has been placed on the case of Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, . It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings u/s 145, Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings u/s 145, Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded order u/s 145 Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An Order of status quo had already been passed by the competent civil Court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings u/s 145. In our view on the facts of the present case the ratio laid down in Ram Sumer Puri Mahant Vs. State of U.P. and Others, fully applies. We clarify that we are not stating that in every case where a civil suit is filed. Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil Court that proceedings u/s 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil Court would be binding of the Magistrate.

In this view of the matter the appeal is allowed. The impugned order is set aside. In our view, the S.D.M. was right in discontinuing the proceedings u/s 145, Criminal Procedure Code. The order passed by the S.D.M. on 9th of June, 1999 is restored.

The ratio laid down by the Hon''ble Apex Court applies in all force to the case on hand. Even though the civil revision petition was allowed in favour of the private respondents, the injunction petition was not dismissed. On the contrary, this Court was pleased to set aside the order of injunction by an order dated 12.2.2008 on the ground that the parameters laid down under Order 39 of the CPC are not followed. Accordingly, this Court of the view that the order issued by the learned Executive Magistrate in C.M.P. No. 6 of 2007 is liable to be set aside. Hence, this criminal original petition is allowed. No costs. Connected M.P. No. 1 of 2008 is closed.