Sri Bhagirathi Parida vs Birendra Pattnaik

S.K. Mishra, J.—Heard. Admit.

The short question that arises in this Criminal Revision is whether a proceeding u/s 145 of the Code of Criminal Procedure, 1973, hereinafter referred to as the ''Code'' for brevity, should be allowed to continue when a civil suit is pending, for the self-same properties, between the same parties, in which right, title, interest as well as the possession of the parties are being adjudicated.

The petitioner claims to be the purchaser of the case land from one Satyakama Pattanayak. It is further stated that the said Satyakama Pattanayak''s predecessor in interest had been settled with the land in a proceeding under the Orissa Estate Abolition Act bearing No. O.E.A. (SM) Case No. 103 of 1985. After purchase, it is alleged that the petitioner''s name has been mutated with respect to the case land. The opposite party filed an application u/s 144 of the Code before the Tahasildar and Executive Magistrate, Chandbali. As per the order dated 26.06.2008, the said Executive Magistrate initiated a proceeding u/s 144 of the Code. The petitioner preferred this revision against that order. This Court, vide the order dated 8.08.2008 in Misc. Case No. 1255 of 2008, ordered for maintenance of status quo. As the matter stood thus, the learned Executive Magistrate after expiry of statutory period of 60 days, on 26.08.2008 converted the proceeding to one u/s 145 of the Code.

Though, initially the petitioner had assailed the order u/s 144(1) of the Code, in course of hearing of the revision application, the learned Counsel agitated the matter of conversion of the proceeding to a proceeding u/s 145 of the code. Section 397 of the code provides that the High Court can call for and examine the records in, any proceeding before any inferior Criminal Court constituted within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. Thus, the power of the High Court with respect to satisfying itself regarding legality or even the regularity of any proceedings before any inferior Court is very wide. Once the High Court is in seisin of the matter in criminal revision, calls for the records for examination and in course of such examination, if it finds that any illegality has been committed though not in the orders, specifically challenged in the revision, then also it is within the jurisdiction of the High Court to set aside such illegal/irregular order passed by the inferior Court.

Secondly, it is seen that, even though an interim order was passed by this Court, the Executive Magistrate had called for a report from the police officer and had converted the proceeding into one u/s 145 of the Code. Though originally, the revision application has been directed against the order passed under Sub-section (1) of Section 144 of the Code, the revisional Court has jurisdiction also decide, whether the order passed by the Executive Magistrate on 26.06.2008 is legal and regular or otherwise.

At the first instance, it is noticed that conversion of a proceeding from u/s 144 to a proceeding u/s 145 is a misnomer. Section 144 of the code provides for power of the Magistrate to issue order in urgent cases of nuisance or apprehended danger. A proceeding u/s 145 of the code is however regarding a dispute concerning land or water which is likely to cause breach of peace. In order to initiate a proceeding u/s 145(1), the Magistrate must be satisfied from a report of the police officer or upon any other information that a dispute is likely to cause breach of peace exists concerning any land or water etc. Thus, the very concept of conversion of proceeding is inappropriate. Rather, the order dated 26.06.2008 should be construed to have initiated a separate and distinguish proceeding u/s 145 of the Code. But such order cannot be quashed only on that ground along if other conditions of Sub-section (1) of Section 145 of the Code are satisfied.

The moot question that requires adjudication in this case is whether the proceeding u/s 145 of the Code should be allowed to proceed in view of the fact that the opposite party has already initiated a civil suit and interim application was filed therein bearing I.A. No. 282/2007 on 26.06.2008, i.e. prior to the passing of the preliminary order under Sub-section (1) of Section 145 of the Code. It is also borne out from the record that the suit is for declaration of right, title and interest and perpetual injunction. Thus, both the title as well as the possession of the parties are being adjudicated by the Civil Judge (Senior Division), Bhadrak. Further more, it is seen that the interim application for temporary injunction was dismissed for default.

In Ram Sumer Puri Mahant Vs. State of U.P. and Others, , the Supreme Court examined this aspect and held that parallel proceeding should not be permitted to continue and in the event of a decree of the Civil Court, the Criminal Court should not be allowed to invoke its jurisdiction, particularly when possession is being examined by the Civil Court and parties are in a position to approach the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be wasted over meaningless litigation.

This view was again upheld in Amresh Tiwari Vs. Lalta Prasad Dubey and Another, , wherein the Supreme Court did not accept the submission that the principles laid down in Ram Sumer''s case would only apply, if the Civil Court has already adjudicated on the dispute regarding the property and given a finding. The Supreme Court reiterated that the multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaning less litigation. On this principle, it was held that when possession is being examined by the Civil Court and the parties are in a position to approach the Civil Court for adequate protection of the property during pendency of the dispute, the parallel proceeding, i.e. u/s 145 of the code should not continue.

In Amresh Tiwari''s case, the Supreme Court also took note of the ratio decided in Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, . In that case, the Supreme Court has held that, merely because a suit is filed, a concluded cases u/s 145 of the Cr.P.C. cannot be set at naught.

Learned Counsel for the opposite party relied on the case of Prakash Chand Sachdeva Vs. The State and another, and submitted that a proceeding u/s 145 Cr.P.C. can be allowed to continue even if a suit is pending. In Prakash Chand case, the Apex Court took note of the ratio laid down in Ram Sumer Puri''s case and held that the normal rule is as stated by the Court in Puri''s case. But that ratio cannot apply where there is no dispute over title. When claim or title are not in dispute and the parties on their own showing are co-owners and there is no partition one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. The Supreme Court however held that where the dispute is not on the right to possession but on the question of possession, the Magistrate is empowered to take cognizance u/s 145 of the Code.

In other words the Supreme Court in Prakash Chand''s Case has not disapproved the ratio laid down in Ram Sumer puri Mahant''s case. Rather the Supreme Court distinguished the fact and has come to the conclusion that in the facts of that particular case even if a civil suit is pending, proceeding u/s 145 of the Code can be continued.

Thus, this being the clear cut rule of law, this Court finds that the opposite party has already approached the Civil Court, wherein he had filed an application for temporary injunction though the same was dismissed for default. It is submitted that the opposite party has filed an application for its restoration. It is also not disputed that in the Civil Court parties have agitate both the question relating to title as well as possession. It is open for the parties to approach the Civil Court for interim order for protection of the property. Hence, there is no reason when the parallel proceeding u/s 145 Cr.P.C. should be allowed to continue. Such continuance of parallel proceeding u/s 145 Cr.P.C. will only consume public time unnecessarily and is not in public interest.

Hence the revision application succeeds. The order passed by the Magistrate on dated 26.06.2008 initiating a proceeding u/s 145 of the Code is hereby set aside.

Accordingly, the Criminal Revision is allowed. Send back the L.C.R.