Ram Kishan and Another vs Hukum Chand

Chet Ram Thakur, J.—This reference has been made by the Sessions Judge, Hamirpur, recommending thereby that the order, dated July 24, 1973, passed by the Sub-divisional Magistrate, Una, under the provisions of Section 147 of the Code of Criminal Procedure (shortly called the Code) restraining Ram Kishan and another from obstructing the flow of water till they get an order from the competent Court of law to the contrary and also directing them to show cause by appearing before him on 30-7-73 at 10 a.m. in his Court at Una, be quashed.

Hukam Chand who is a Respondent before this Court had filed a complaint before the Sub-divisional Magistrate, Una, against Ram Kishan and another, the present Petitioners, alleging therein that the abadi of the parties adjoin each other and that the rain water as also the water from the kitchen of Hukam Chand used to pass through the court-yard of the present Petitioners by means of a drain since time immemorial and that Hukam Chand had acquired a right of easement and also easement of necessity to pass the water of his abadi and court-yard through the land and court-yard of Ram Kishan and another, but they were alleged to have built abadis on the land through which the water flowed and there by caused damage to the abadi of the Petitioner and to his other property. Since there was mischief on the part of the present Petitioners, the complainant brought a civil suit in t tie Court of Sub-judge Una, on 27-6-1973 and the said Court on the application of the Plaintiff-complainant issued an interim injunction restraining them from obstructing the flow of water through their court-yard or from raising the construction. That injunction order was served on the present Petitioners on the same day and it was only thereafter when the civil Court had closed for summer vacation that they inspite of the injunction order committed that mischief and there was apprehension of breach of peace. This complaint was filed on 20-7-1973. It appears that the learned Magistrate recorded the statements of the complainant and two other witnesses on 23-7-1973 and ordered the issue of a notice by preparation of a preliminary order. The learned Sessions Judge has while recommending the case observed that the order passed by the learned Magistrate is in the nature of absolute direction, which could not be made without conducting the enquiry contemplated by Sub-section (2) of Section 147 of the Code in the presence of both the parties and therefore the order was clearly without jurisdiction. Secondly, the Respondent, i.e. the complainant had in his petition u/s 147 per paragraph No. 5 admitted that he had approached the civil Court by a regular suit earlier on 27-6-1973 and obtained an interim injunction restraining the second party from obstructing the flow of water and from raising new construction. In such a situation when the civil Court was seized of the matter, proceedings before the criminal Court by way of preventive action with a view to maintaining peace became not only redundant but the criminal Courts are functus-officio and cannot carry on parallel proceedings. He has based his observation on the latter point on three authorities and he has, therefore, recommended for quashing the order as being without jurisdiction.

The point that arises for consideration is whether the order passed by the learned Magistrate is in accordance with the provisions of section 147(1) of the Code, which, in fact, gives jurisdiction to the Magistrate to proceed further. The reading of Sub-section (1) of Section 147 shows that the jurisdiction of the Magistrate to institute proceedings under this section arises on his being satisfied that a dispute exists concerning the user of land and water and further that such dispute is likely to cause a breach of peace. Therefore, it is his duty to record a finding that he is so satisfied on the material before him and to draw a preliminary order stating the grounds which have satisfied him. Bur, this he has got to do before he issues process to the Respondents requiring them to attend the Court within the time to be fixed by him and to put in written statements of their respective claims and it is only thereafter that he would enquire into the matter in the manner as setforth in the subsequent Sub-section of Section 147. What happened in the instant case was that the Magistrate recorded the statements of two witnesses besides the complainant, and passed an order on 23rd, which is to the following effect:

Called out. Complainant with the Counsel Preliminary evidence recorded and it is found that a case u/s 147, Code of Criminal Procedure is made out. Issue notice (Preliminary) be prepared. A copy of the notice be sent along with each notice to the opposite party for 30-7-73.

Sd/- SDM 23-7-73

And the office it appears prepared the order on 24th in accordance with the Form XXLV as given in Schedule V of the Code and, therefore, it was merely a mechanical order prepared by the office and not by the Magistrate himself and this order could not be made which, in fact, is like a final order unless the party had appeared before him and had failed to show cause if the learned Magistrate had entered upon enquiry into the matter. This order, therefore, in my opinion, is patently wrong. The authorities Qamaruddin Husain and Others Vs. Mushtaq Ahmad, and Eralil Mathai Jacob and Ors. v. K. Ravivaraman Thirupad and Anr. AIR 1953 Tra-Co. 202 fully apply to the facts of the present case, inasmuch as the learned Magistrate could not pass an order restraining the Respondent, i.e. the present Petitioners from obstructing the flow of water till they got an order from the competent Court of law to the contrary because this amounted to a final order which he was not empowered to pass unless he had issued a preliminary order in conformity with Sub-section (1) of Section 147 of the Code.

In the present case it would appear that the present Respondent had averred in his petition that he had brought a suit in the Court of Sub- Judge and that an interim injunction had also been issued restraining the present Petitioners from obstructing the flow of water through their Courtyard and from raising new construction. The learned Counsel for the Respondent contends on the basis of Pritam and Another Vs. Durga Singh and Others, that pendency of civil suit is no bar to proceedings under the provisions. Likelihood of breach of the peace is the criterion to exercise jurisdiction u/s 145. But this case has got no application to the facts of the present case, inasmuch as in that case although a civil suit had been filed by one of the parties but not interim injunction had been obtained and when the Defendant took unlawful possession of the property then one of the parties went u/s 145 of the Code to the Court. But in the instant case there is already an interim injunction issued by the Court, the disobedience or the non-compliance of which could be punished by the civil Court.

The further authority relied upon by the learned Counsel for the Respondent is Ram Lal, etc. v. States etc. 1971 Sim LJ 58. This also does not apply because it has been held therein that the existence of an apprehension of a breach of peace being the foundation of the jurisdiction to act u/s 145 the legality of the preventive proceedings u/s 145 of the Code is not affected by the pendency of civil suit. Nevertheless, there may be circumstances in which a suitable order may already have been passed in a civil suit so that no proceedings u/s 145, Code of Criminal Procedure are called for in those circumstances. There should be no conflict between an order passed by a criminal Court and a civil Court. Indeed, the order passed by the criminal Court would be over-ridden and would exhaust itself as soon as there is an appropriate decision by the civil Court. Consequently, this authority has got no applicability as here in the instant case an interim injunction has already been issued by the Court.

The next authority relied upon by the learned Counsel for the Respondent that the pendency of the civil suit is no bar to the initiation of proceedings under Sections 145 or 147 is Koni Ram v. Rattan Dassi 1971 Sim L J 112. In this case also it has been laid down that it is true that in some cases the pendency of a civil suit may be taken into account in considering whether an order u/s 145 of the Code is called for or not, e.g. in a suit where there is interim injunction by a civil Court, it may be futile to let parties waste the time of the inquiring Magistrate by proceedings u/s 145 of the Code. No doubt the pendency of the civil suit would not have mattered and the Magistrate could proceed further if there had been no interim injunction passed by the civil Court. Therefore, in my opinion all these authorities are not relevant for the present purposes and the pendency of the civil suit in view of the fact that the interim order has been passed by the civil Court will bar these proceedings u/s 147 of the Code. Therefore, in my opinion, the reference order made by the learned Sessions Judge is quite correct and the recommendations must be accepted. I accordingly accept the same and quash the order of the Sub-divisional Magistrate. Orders passed accordingly.