Ram Raj and Others vs State of U.P. and Others

B.S. Chauhan, J.—This revision has been tiled before this Court against the judgment and order of the Sessions Judge, Fatehpur, dated 9.9.1991 passed in Criminal Revision No. 122 of 1991 which has been filed against the preliminary order of the Sub-Divisional Magistrate dated 2.8.1991 passed u/s 145(1), Code of Criminal Procedure and dated 7.8.91 attaching the property u/s 146(1), Code of Criminal Procedure in criminal case No. 42 of 1991 Ram Raj v. Arun Kumar u/s 145, Code of Criminal Procedure. By the impugned judgment and order dated 9.9.1991 learned Sessions Judge allowed the revision and quashed the preliminary order dated 2.8.91 and attachment order dated 7.8.1991. Being aggrieved and dissatisfied the revisionists Ram Raj and Ors. filed the present revision. At the time of hearing it is admitted by Shrl S.S. Rathore, learned Counsel appearing for the revisionists, that in respect of the said property civil proceedings are pending and the matter is being adjudicated upon by the competent civil court. If it is so, then there is no scope of interference by this Court in its revisional Jurisdiction as the matter is purely of civil nature.

The learned Sessions Judge has made the following observations:

A civil suit is pending in the civil court. The learned Munsif has exercised jurisdiction in granting injunction. It is settled principles of law that when a suit is proceeding in the civil court, that too for injunction and declaration, a criminal proceeding u/s 145, Code of Criminal Procedure shall not lie. Even if the suit may not be for declaration, a suit for injunction invariably amounts to suit for declaration and without deciding the right and title of the parties the learned Munsif might not grab the injunction. The learned Munsif has proceeded to pass injunction order. In utter disregard of his order the learned Magistrate cannot pass orders to attach the property and divest both the parties or any particular party and to throw the property in the hands of a third person and therefore, also the order is totally illegal and without jurisdiction and a revision shall lie. It has been held in the ruling reported in Ramji Singh v. State of U.P. 1990 ACC 224 , that in view of suit pending before the civil court in view of the rulings reported in Ram Sumer Puri Mahant Vs. State of U.P. and Others, and Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, the proceeding u/s 145, Code of Criminal Procedure cannot continue but the learned Magistrate must record a clear cut finding on three points firstly whether the subject-matter in the proceedings is the same in proceedings u/s 145, Code of Criminal Procedure and in the suit. It is admitted in this case that proceeding in both the cases is in respect of the same property. Secondly whether the proceedings before the Magistrate will amount to parallel proceedings. Definitely it shall amount to parallel proceedings because to grant injunction, the learned Munsif has found out who was in possession on the date of a suit and the same finding is to be recorded in the proceeding u/s 145, Code of Criminal Procedure. The third point is whether the concerned party can or should approach civil court for appropriate remedy. In this case also a civil suit is filed an in that case the first party will very well get its possession decided. It has been held in this ruling that the Magistrate has to decide it as a preliminary issue. The Magistrate did not decide although application has been moved for dropping the proceedings u/s 145, Code of Criminal Procedure shall not lie. In the rulings reported in Suresh Kumar Vs. Vijay Kumar and another, . it has been held that existence of an order of injuction of a civil court creates a complete bar to the passing of any order u/s 145 or 146, Code of Criminal Procedure.

In the case of AIR 1982 1181 (SC) , the Supreme Court quashed the process issued by the Court in the complaint case and observed as under:

We find considerable force in this submission for the criminal process has been resorted to even when the civil proceedings are pending and even before the issue whether the disputed receipts are forged or genuine is finally decided by the Rent Controller.

In the case of Sardar Trilok Singh and Others Vs. Satya Deo Tripathi, , the Supreme Court has observed as under:

On the well settled principles of law it was a very suitable case whether the criminal proceeding ought to have been quashed by the High Court in exercise of its inherent power. The dispute raised by the Respondent was purely of a civil nature even assuming the facts stated by him to be substantially correct.... The criminal proceeding initiated was clearly an abuse of the process of the Court.

In view of the above, I find no infirmity, and illegality which may warrant the review of the impugned judgment and order dated 9.9.1991. The revision is devoid of any merit and hence rejected.