N.A. Ansary and Others vs Jackiriya and Others

This revision is directed against the order dated 28-10-1985 passed in MCP No. 3 of 1985 by the learned Taluk Executive Magistrate and

Tahsildar, Chidambaram.

The subject matter of dispute is a mosque bearing Door Nos. 1 and 2, Labbai Street, Chidambaram Town. The said mosque owns certain

properties. There had been a scramble for possession of the mosque between the petitioners (''B'' Party) and the respondents (''A'' Party), who

were arrayed as counter-petitioners before the Executive Magistrate. The Inspector of Police, Chidambaram town, laid information before the

learned Magistrate for initiation of proceedings u/s 145 Cr.P.C. on 28-2-1985, since the scramble for possession of the mosque between the

parties was likely to create breach of peace and law and order problem in the locality. The Magistrate, on receipt of the report, deriving the

subjective satisfaction that the dispute between the parties was likely to cause breach of peace, passed a preliminary order on 30-3-1985 u/s

145(1) Cr.P.C., calling upon the parties to appear before him on 15-4-1985 and put in their written statement of the respective claims with regard

to their actual possession of the mosque. On 15-4-1985 ''B'' Party appeared and filed a petition stating that the preliminary order did not contain

any schedule of property. Then the executive Magistrate rectified the earlier preliminary order and issued a fresh order giving full particulars of the

subject matter of dispute. On 24-5-1985, ''B'' Party filed a petition to include the Wakf Board as a necessary party to the proceedings which was

stoutly opposed by the filing of a petition by ''A'' party on the same day. On 10-6-1985, ''A'' party filed written statement as regards their actual

possession of the mosque and filed whatever documents they had. ''B'' Party neither filed any written statement nor filed any documents regarding

their claim as to actual possession of the mosque. During the pendency of the proceedings before the Magistrate, both parties initiated several

proceedings before the competent Civil Courts, claiming various reliefs in respect of not only the subject matter of dispute in the proceedings u/s

145 Cr.P.C. viz. mosque, but also in respect of other properties owned by the mosque.

It is necessary to mention only such of those civil proceedings relatable to the mosque in question. ''A'' Party filed O.S. No. 189/84 on the file of

the District Munsif''s Court, Chidambaram, for an injunction restraining ''B'' Party from functioning as office-bearers of the mosque and not to

interfere with their functioning as office-bearers, and also I.A. No. 871/84 for temporary injunction. The learned District Munsif, on perusal of the

materials placed before him, in fact granted interim injunction on 6-6-1984. The District Court in its proceedings D. No. 1188/86 dated 30-1-

1986 transferred the suit to the file of the Sub Court, directing the parties to appear on 26-6-1986. The Sub Court, Chidambaram, took the same

on file on 16-6-1986, renumbering them as I.A. No. 423 of 1986 in O.S. No. 32 of 1986. On 29-8-1986, the learned Subordinate Judge closed

I.A. No. 423/86 and listed the suit for trial on 4-9-1986. Likewise, ''B'' Party instituted O.S. No. 29 of 1984 before the Sub Court,

Chidambaram, for injunction restraining ''A'' Party from interfering with their functioning as office bearers of the mosque and I.A. No. 378 of 1984

for temporary injunction. The learned Sub Judge, on a perusal of the materials placed before him, granted temporary injunction on 25-6-1984 for

a period of three weeks and on 29-11-1984 the interim injunction granted was made absolute. On 28-10-1985, the Executive Magistrate passed

the impugned order u/s 145(6) Cr.P.C., declaring that ''A'' Party is entitled to the possession of the mosque until evicted from it in due course of

law.

Learned Counsel appearing for the petitioners/''B'' Party would assail the impugned order by submitting the following points for consideration :

(i) When a civil litigation is pending with regard to a property involving the question of possession and has been adjudicated, there is hardly any

justification for initiating parallel Criminal proceedings u/s 145 Cr.P.C.

(ii) The impugned order is vitiated by the non-compliance with the mandatory provision adumbrated under/Clause (4) of Section 145 Cr.P.C. In

support of both the contentions, my attention has been drawn to the decisions rendered by the apex of the judicial administration and the various

High Courts. Learned Counsel for the respondents/''A'' Party repels such submissions. Before proceeding to consider the authorities cited, I feel it

is but necessary to mention here the scope and amplitude of the powers of the Executive Magistrate u/s 145 Cr.P.C.

The power which the Parliament intended to confer on the Executive Magistrate, u/s 145 Cr.P.C., while deciding a dispute which is likely to

result in breach of peace concerning immovable property, is not an exhaustive power to go into the questions of right to title and to possession of

the subject matter of dispute, as had been conferred upon the Civil Court. The power so conferred is for the purpose of assessing the breach of

peace likely to result, in the case of absence of an order passed by the Executive Magistrate. The Executive machinery has to act with all speed

and haste in such a situation, so as to maintain tranquillity of the atmosphere in the locality concerned. The remedy provided u/s 145 Cr.P.C. is

rather summary, in the sense of investing power upon the Executive Magistrate to go into the question of actual or factual possession of the subject

matter of dispute in favour of any one of the parties, without actually going into the merits and deciding the rights of the parties. The mere fact that

parallel proceedings are pending before Civil Court is not by itself sufficient for the Executive Magistrate to drop the proceedings u/s 145 Cr.P.C.

If the proceedings pending before the Civil Court had been adjudicated, then such adjudication in the form of a decree is definitely binding upon

the Criminal Court. If there is no adjudication of the rights of the parties in the Civil Court, there cannot be any impediment on the part of the

Criminal Court to go into the question as to who was in actual or factual possession. If the Criminal Court decides the issue, after observing the

procedure contemplated u/s 145 Cr.P.C., the decision will be binding upon the parties till a competent Civil Court decides the issue. To put it

otherwise, the life of the said order of the Criminal Court is conterminous with the passing of a decree by the Civil Court and the moment the Civil

Court makes an order, it displaces the order of the Criminal Court. From what has been stated above, it is vividly clear that mere pendency of

parallel proceedings before the Court is not by itself sufficient to prevent the Executive Magistrate from initiating proceedings u/s 145 Cr.P.C.

unless there had been an adjudication of the rights of the parties by a competent Civil Court, in which event, the order of the Civil Court alone will

prevail and consequently, it may not be legally permissible for the Criminal Court to proceed further in the matter.

In Ram Sumer Puri Mahant Vs. State of U.P. and Others, , the Supreme Court held as follows (at p. 753 of Cri LJ) :

When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, there is hardly any

justification for initiating a parallel Criminal Proceeding u/s 145 of the Cr.P.C. 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"".

In Magdoom, K. S. v. N. S. Jalal 1988 MLW (Crl) 89, Padmini Jesudurai, J. held as follows :

When a civil litigation is pending between the same parties in respect of a land, parallel proceedings u/s 145 Cr.P.C. ought not to be conducted.

Whatever relief that could be obtained u/s 145, Cr.P.C. would also be available to the parties in the civil Court. Appointment of a Receiver to

manage the property pending the civil suit or an order of injunction protecting the possession of either party, would all be interim reliefs that could

be sought for and obtained in a civil court"".

Learned counsel for ''B'' Party would heavily rely upon the aforesaid observations and snatch an argument that invoking the jurisdiction u/s 145

Cr.P.C. is not permissible when the civil litigation between the parties is admittedly pending before the civil court, in respect of which proceedings

are initiated u/s 145 Cr.P.C. To this submission, I am unable to affix my seal of approval in the circumstances of the case. Pertinent it is to point out

here that the pendency of the proceedings before the civil court between the parties is not at all in respect of actual or factual possession of the

subject matter in dispute in the proceedings u/s 145 Cr.P.C. As already indicated, the civil proceedings had been initiated by both the parties for

the relief of injunction, prohibiting the other party from interfering with the due performance of the function as office-bearers of the mosque in

question. Even the temporary injunction obtained by both the parties relate to restraining the other party from interfering with the administration of

the mosque. As such, the dispute of the factual or actual possession of the mosque in question is not in fact projected before the civil court for

adjudication. In such circumstances, it can by no stretch of imagination be stated to have advanced or improved the case of ''B'' Party to any extent

whatever.

Learned counsel appearing for the respondents/''A'' Party placed reliance on the decision of Sengottuvelan, J., in Vallimalai v. Ayyannan

Ambalam 1986 MLW (Cri) 110. The learned Judge, while distinguishing the decision of the Supreme Court in Ram Sumer Puri Mahant Vs. State

of U.P. and Others, referred to above, held as follows :

Proceedings u/s 145, Cr.P.C. are intended to prevent breach of peace and if there is necessity to prevent any breach of peace proceedings u/s

145 will have to be started. But in such proceedings any orders passed by the civil court regarding title or possession will have to be followed by

the criminal court .....

The decision of the Supreme Court in Ram Sumer Puri Mahant Vs. State of U.P. and Others, can only be taken to mean that when a litigation is

pending regarding title and possession before the civil Court, an enquiry regarding title and possession in Section 145 proceeding should be

avoided, since the civil Court is the ultimate authority regarding title. But it cannot be contended, on the strength of the above decision, that when

once there is a civil court proceeding, no proceedings u/s 145 can be instituted. The said decision cannot be said to be an authority for the

proposition that Section 145 proceedings cannot be started when civil proceedings are pending.

With respect, I agree with the aforesaid observations of the learned Judge. In the view, I have taken, it goes without saying that the first point has

to be answered in the negative.

Coming to the second point, it revolves on the procedure to be followed in an enquiry u/s 145(4) Cr.P.C., which reads as follows :

The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the

statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks

necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1) in,

possession of the subject of dispute.

A perusal of the above provision shows that the Magistrate has to peruse statements put in by the parties, hear and receive such evidence as may

be produced by them, and take further evidence if he thinks necessary, before taking a decision as to which of the parties was in possession of the

subject matter of dispute on the date of the order u/s 145(1) Cr.P.C. Sub-section (4) had been incorporated in the present Code, as per the

recommendation of the Law Commission, as the procedure obtaining previously as per the amended Code, 1955, did not bring forth the desired

result, in the sense of not making it possible for the Executive Magistrate to decide the factual or actual possession of the subject matter of the

dispute by reference to the respective statements of the parties, receive their claims and the affidavits filed thereto. To put it otherwise, as per the

Code as amended in 1955, no oral evidence was allowed to be let in and affidavits alone were filed in proof of the claims of the respective parties.

Originally, the Code, as it stood in 1898, allowed oral evidence to be let in. This was changed by the amendment in 1955 and again, as per the

recommendation of the Law Commission with minor changes, the procedure obtaining under the Old Code of 1898 was restored, making it

obligatory for the Executive Magistrate to receive all such evidence as may be produced by the parties and also take further evidence, if any, as he

thinks necessary. So far as the case on hand is concerned, it transpires from the records that no oral evidence had been let in and the final order

has been passed solely on the basis of the written statement filed by ''A'' Party and the interim injunction order of the Civil Court. Learned counsel

appearing for the petitioners would submit that the non-compliance of the mandatory procedure as contemplated u/s 145(4) Cr.P.C. would vitiate

the impugned order and hence the same should be set aside. Learned counsel for ''A'' party would contend that a mandatory duty is cast upon the

Magistrate to receive all such evidence as may be produced by the parties and in the absence of production of any such evidence by them, there is

no obligation on the part of the Magistrate to direct the parties to adduce evidence. Though at first blush, there appears to be some force in the

submission of learned counsel for ''A'' Party, a closer scrutiny of Section 145(4) would reveal the unsoundness in it. This can be best illustrated by

the decision of the Calcutta High Court in Abhimanyu v. Nanak Ram 1979 CLJ 1103 wherein, while dealing with a similar contention, it was

observed that what the section enjoins is that though the choice is left to the parties to adduce evidence, yet reasonable opportunities have to be

given to the parties to produce their witnesses and documents, if any. I am in complete agreement with this observation. It is to be mentioned here

that a perusal of the records available before Court did not point out that an opportunity in fact had been given to the parties to adduce evidence as

contemplated u/s 145(4) Cr.P.C. by the Magistrate. What he has done is that on receipt of the Police report, deriving the subjective satisfaction of

the existence of breach of peace in respect of the subject matter of dispute between the parties, he passed a preliminary order u/s 145(1) Cr.P.C.

directing the parties to appear before him on a particular day and put in written statements of their respective claims to the subject matter of

dispute, duly published the same according to Section 145(3), but, without adhering to the provision of S. 145(4), by taking the evidence of

parties, directly proceeded to pass a final order u/s 145(6) Cr.P.C. on the basis of the materials available on record.

Learned counsel for the respondents/''A'' Party drew my attention to the decision of the Orissa High Court in Kolha Jena v. Pravakar Patra

1985 CLJ 1837 wherein the learned Judge took the view that recording of oral evidence u/s 145(4) Cr.P.C. is not compulsory. If none of the

parties desired to produce such evidence and the Magistrate does not feel the necessity for the same. The learned Judge, while expressing the

above view, considered the effect of Section 145(9) which provides that the Magistrate may, if he thinks fit at any stage of the proceedings under

the section, on the application of either party, issue summons to any witness, directing him to attend or to produce any document or thing. I am not

agreeing with the view expressed by the learned Judge in this regard. Sub-section (9) and sub-section (4) of Section 145 are both independent, in

the sense of not having any connection with each other. A discretion is given u/s 145(9) to the Magistrate to issue summons to any witness or to

produce any document on the application of either party at any stage of the proceedings. Section 145(4) comes into operation immediately after

the publication of the preliminary order as required u/s 145(1) and a mandate is cast upon the Magistrate ""to receive all such evidence as may be

produced by them"", which phraseology connotes a meaning that sufficient adequate opportunities have to be provided to either of the parties to

prove their respective claims in respect of the subject matter of dispute, as rightly interpreted by the Calcutta High Court in Abhimanyu v. Nanak

Ram 1979 CLJ 1103 .

In the view I have taken as above, it goes without saying that the proceedings before the learned Magistrate are vitiated by the non-compliance

of the mandatory procedure contemplated u/s 145(4), Cr.P.C. and point No. (ii) is answered in the affirmative.

In the result, the revision petition is allowed and the matter is remanded to the Executive Magistrate for fresh consideration of the matter, from

the stage of enquiry u/s 145(4), Cr.P.C. in the light of the observations made in this order.

Petition allowed.