Syed Masood Ishrat vs Addl. City Magistrate V and Others

Mahendra Dayal, J.—1. By means of this application under Section 482 Cr.P.C., the applicant has prayed for quashing of the order dated 24.06.2014 passed by Additional City Magistrate Vth, Lucknow in Case No. 41/23/2014, under Sections 145/146 Cr.P.C. relating to P.S. Ghazipur, Lucknow, whereby the learned Magistrate has passed an order for attachment of the property in dispute which is House No. A-314, Indira Nagar, Lucknow.

The brief facts of the case are that one Syed Ishrat Hussain was the owner of House No. A-314, Indira Nagar, Lucknow. He by means of a registered sale-deed dated 28.05.2009 sold the said house to the opposite parties No. 2 and 3. Shri Syed Ishrat Hussain died on 04.07.2009. After the death of Shri Syed Ishrat Hussain, when his sons came to know about the execution of the sale-deed by their father, they filed a suit for cancellation of the sale-deed and permanent injunction in the Court of Civil Judge (Senior Division), Lucknow being Regular Suit No. 801/2009, which is still pending. In the said suit, the opposite parties No. 2 and 3 appeared and filed their written statement on 03.11.2009. In the counter claim, the opposite parties No. 2 and 3 made a prayer for a decree of mandatory injunction directing and commanding them to vacate the disputed house and hand over its vacant possession to them. After a gap of about four and half years, the opposite parties No. 2 and 3 moved an application under Section 145 Cr.P.C. before the Magistrate concerned with the allegation that there was serious dispute between the parties with regard to the possession of the disputed house and untoward incident may happen any time. It was also mentioned in the application that several cases including criminal cases are also pending between the parties and there is every likelihood of apprehension of breach of peace. With the aforesaid allegations, it was prayed that after calling for the report from the concerned police station, the house in question be placed under attachment. The Additional City Magistrate called for a report from the concerned police station and while passing a preliminary order under Section 145(1) Cr.P.C., issued notice to the applicant. The applicant on 25.03.2010, filed his written statement stating therein that the proceedings under Section 145 Cr.P.C., were not maintainable as the civil suit between the parties with respect to house in dispute was pending in the civil court and by the order dated 25.03.2010, the civil court has passed an interim order by which the opposite parties No. 2 and 3 have been restrained from evicting the applicant. The written submission on behalf of the opposite parties No. 2 and 3 was also filed before the learned Additional City Magistrate. After exchange of pleadings, the learned Magistrate by the impugned order dated 24.06.2014 directed the Station House Officer, Ghazipur to attach the house in question and keep possession thereof with him till further orders.

Feeling aggrieved by the said order of attachment, the applicant has approached this Court by way of filing the present application under Section 482 Cr.P.C.

I have heard Shri Surya Kant, learned counsel for the applicant and Shri Arun Sinha, learned counsel for the opposite parties No. 2 and 3 and also perused the record.

It has been contended by the learned counsel for the applicant that after the impugned attachment order was passed by the learned Additional City Magistrate, the police reached the spot and forcibly took possession thereof by dispossessing the applicant. It has further been contended that at the time of taking possession and attachment, learned Additional City Magistrate himself was present along with heavy police force to supervise the enforcement of his order and the opposite parties No. 2 and 3 were also present. The applicant was forcibly evicted from the house in question by throwing his household articles on the road. Certain photographs showing his dispossession, have also been filed by the applicant along with supplementary affidavit filed on 30.06.2014.

The submission of the learned counsel is that when the civil suit was pending between the parties in respect of the house in question and there was an interim order which was passed on the basis of undertaking given by the opposite parties No. 2 and 3 that they will not dispossess the applicant otherwise than in due course of law, there was no occasion for the opposite parties No. 2 and 3 to have approached the Additional City Magistrate by way of moving an application under Section 145 Cr.P.C. and making prayer for attachment of the house. This clearly indicates that the opposite parties No. 2 and 3 had intention to evict the applicant in one way or the other. There was an undertaking that the applicant will not be evicted otherwise than in due course of law. The opposite parties No. 2 and 3 in order to take possession with the help of police, adopted a short cut method by moving an application under Section 145 Cr.P.C. and the learned Magistrate without considering the fact that the civil suit between the parties was pending in the competent civil Court and an interim order was also in force, passed the impugned order of attachment, also dispossessed the applicant with the help of police.

Shri Arun Sinha, learned counsel appearing on behalf of the opposite parties No. 2 and 3 has submitted that the pendency of the civil suit does not exclude the jurisdiction of an executive Magistrate to proceed under Section 145 Cr.P.C. and attach the property under Section 146 Cr.P.C., if in the opinion of the Magistrate there is apprehension of breach of peace. Shri Sinha has drawn the attention of the Court towards first information reports lodged by both the parties and the challani report of the police, which according to him, was sufficient to prima-facie establish that there was serious dispute between the parties with regard to the possession of the house in question and the learned Magistrate considering that it was a case of emergency, invoked his power under Section 146 Cr.P.C. directing for attachment of the house in question. It has also been contended by him that in case the attachment order is withdrawn or quashed by this Court, the parties shall again try to take forcible possession over the house, which may result into serious dispute between the parties. It has also been contended by Shri Sinha that inspite of repeated orders by this Court, the applicant is not cooperating with the civil court for early disposal of the case. He has pointed out that more than 150 adjournments have been taken by the applicant and the proceedings are being prolonged in one way of the other. The interim order passed by the learned Civil Judge is only to the effect that the opposite parties No. 2 and 3 will not evict the applicant otherwise than in due course of law. The property has been attached by the orders of the learned Additional City Magistrate under Section 146 Cr.P.C., and therefore, it cannot be said that the opposite parties No. 2 and 3 have taken law in their hands and have taken forcible possession because after the attachment of the house in question, the possession has not been delivered to the opposite parties No. 2 and 3. It has also been submitted by Shri Sinha that after the initiation of proceedings under Section 145 Cr.P.C., the Magistrate is empowered to attach the property, if in his opinion, there is apprehension of breach of peace. Learned Magistrate has recorded his satisfaction and the reasons for attaching the property in his order dated 24.06.2014 and in these circumstances, the impugned order is prefect and justified and is not liable to be interfered with by this Court.

From a perusal of the provisions of Sections 145 and 146 Cr.P.C., it is found that the proceedings under Section 145 can be initiated when the Magistrate is satisfied from the report of police officer or upon other information that a dispute likely to cause to breach of peace exists concerning any land or water or the boundary, he can make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned to attend the Court and put in their written submission of their respective claims. It is further provided that if it appears to the Magistrate that if any party has been forcibly and wrongfully dispossessed within two months next from the date of such report of the police officer was received or after that date and before the date of his order, it may treat the parties so dispossessed as if that party had been in possession on the date of his order.

Section 146 Cr.P.C. empowers the Magistrate to attach the property after passing order under Section 145(1) Cr.P.C., if he considers it to be a case of emergency or if he decides that none of the parties was in possession or he is unable to satisfy himself as to which of them was in possession.

Thus reading of Section 146 Cr.P.C. makes it clear that the Magistrate can attach the property under three circumstances. The first circumstance is that the Magistrate considers it to be a case of emergency. The second circumstance is that if the Magistrate decides that none of the parties was in possession within two months from the date, the police report was received and the third circumstance is that in case the Magistrate is unable to decide as to which of the party was in possession.

In the present case, it appears that the learned Additional City Magistrate has proceeded to attach the property treating it to be a case of emergency. The reasons shown by him for attachment of the property are that according to Challani report submitted by the concerned police station, there was serious dispute with regard to possession of the house in question and their existed apprehension of breach of peace. The learned Magistrate has also referred to the cross first information reports lodged by the parties against each other.

In the aforesaid background, the first question to be considered by this Court is as to whether the proceedings under Section 145 Cr.P.C. could be initiated when a civil suit between the parties in respect of the same subject matter was pending in the civil court and there was also an interim order passed by the competent civil court. The second point to be considered by this Court is as to whether it was a case of emergency empowering the Magistrate to make an order for attachment of the house.

It is admitted between the parties that the applicant and his brother, both have instituted a suit in the civil court for cancellation of the sale-deed executed by their father in favour of the opposite parties No. 2 and 3. The said suit is still pending, in which the opposite parties No. 2 and 3 have also filed their written statement along with counter claim praying that the possession of the house in question be delivered to them. Meaning thereby that the possession of the house in question was admittedly with the applicant. According to the opposite parties No. 2 and 3, the father of the applicant after the execution of the sale-deed in their favour had sought some time for delivering the possession, but in the meantime he died and his sons even after assurance, did not vacate the house. Whatever the reason may be but it is not disputed that at the time of passing of the impugned order, the possession of the house in question was with the applicant. The matter with regard to title over the house in question is subjudiced before the civil court and in case the applicant succeeds and his suit for cancellation of the sale-deed is decreed, the opposite parties No. 2 and 3 would not have any claim and similarly if the suit filed by the applicant is dismissed, the opposite parties No. 2 and 3 would be declared as owner of the house in question. The applicant had also moved an application for interim injunction, but as the same was not being disposed of, therefore, the applicant approached this Court by way of filing a Writ Petition No. 1311 (MS) of 2010 for directing the learned court below to decide the application for temporary injunction in which by the order dated 15.03.2010, thus, directed the Court below to decide the case within a month from the date of production of a certified copy of the order. After the aforesaid order was passed, the civil court proceeded to decide the application for temporary injunction but on the date when the application was taken up, no one present on behalf of the applicant and on the basis of undertaking given by the opposite parties No. 2 and 3 that they would not dispossess the applicant otherwise than in course of law, the application for temporary injunction was decided.

After the disposal of the application for temporary injunction, the opposite parties No. 2 and 3 approached this Court by way of filing a Writ Petition No. 2458 (MS) of 2012, which was disposed of on 04.05.2012 with the direction that the learned Civil Judge, before whom the suit is pending, shall dispose of the case expeditiously as early as possible. After the aforesaid order was passed, the suit proceeded, but it is not disputed that the said suit is still not decided although a period of more than three years has passed since the direction for expeditious disposal of the case was issued by this Court.

The proceedings under Section 145 Cr.P.C. are meant to be exercised only in those cases where there is dispute with regard to possession of the property. This power can be exercised in those cases also where one party is forcibly dispossessed by the other. The condition for invoking the power under Section 145 Cr.P.C. is that there must be existence of apprehension of breach of peace with regard to possession. The submission on behalf of the applicant is that since there was an undertaking given by the opposite parties No. 2 and 3 that they will not dispossess the applicant otherwise than in due course of law, no apprehension of breach of peace existed and as such the learned Magistrate ought not to have entertained the application under Section 145 Cr.P.C. This legal position is not disputed that in the proceedings under Section 145 Cr.P.C., the Magistrate is not empowered to decide the title of any party. He has only to ascertain the possession. Since the opposite parties No. 2 and 3 had already admitted the possession of the applicant in their written statement, there was no occasion for them to have moved the application under Section 145 Cr.P.C. The continuance of proceedings under Section 145 Cr.P.C. would amount to permitting parallel proceedings as the civil suit in respect of the same subject matter between the same parties is pending. The scope of inquiry under Section 145 Cr.P.C. is only to ascertain possession of the rival claimants, but in the present case as pointed out above, the possession of the applicant at the time of filing the application under Section 145 Cr.P.C. was with the applicant. It has been held by Hon''ble the Apex Court in the case of Ram Sumer Puri Mahant v. State of U.P. & Ors., reported in , (1985) 1 SCC Page 427, that there is no doubt or dispute about the position that a decree of a civil court is binding on the criminal court. When the civil suit is pending, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and there is an interim order in favour of one of the parties. Multiplicity of litigation is not in the interest of the parties nor it should be allowed to waste the time of the Court.

In the present case, since the matter is subjudice before the civil court and the title of the parties is yet to be decided and the possession of the applicant was admitted to the opposite parties No. 2 and 3, there is absolutely no necessity in permitting the parallel proceedings in the shape of the application under Section 145 Cr.P.C.

So far as the attachment of the property is concerned, the learned Magistrate has passed an order treating it to be a case of emergency. A perusal of the impugned order itself indicates that on one occasion, the police sent Challani report under Sections 107/116 Cr.P.C. and two cross first information reports were lodged by the parties in the year 2013 and thereafter no untoward incident took place. The Hon''ble Apex Court in the case of Ashok Kumar v. State of Uttarakhand & Ors., reported in , (2013) 3 SCC Page 366 has clarified that the ingredients necessary for passing an order under Sections 145(1) Cr.P.C. would not automatically attract the attachment of the property. Under Section 146 Cr.P.C., the Magistrate has to satisfy himself as to whether emergency exists or not. A case of emergency has to distinguished from a mere case of apprehension of breach of peace. The Magistrate before passing an order under Section 146 Cr.P.C. must explain the circumstances, why he thinks it to be a case of emergency. In other words, to infer the situation of an emergency, there must be material on record before the Magistrate. Thus, Hon''ble the Apex Court has held that for invoking power for attachment under Section 146 Cr.P.C., something more than apprehension of breach of peace is required. Learned Magistrate while passing the impugned order has indicated that two cross reports were lodged by the parties against each other but the same were of 2013. It has not been mentioned in the order that why the Magistrate has considered it to be a case of emergency. The Challani report submitted by the police also indicated that with regard to the possession, there was dispute between the parties and there is likelihood of breach of peace. This fact alone was not sufficient for the Magistrate to have invoked the power under Section 146 Cr.P.C. in view of the law laid down by Hon''ble the Apex Court that the Magistrate has to clarify in his order as to how he came to the conclusion that it is a case of emergency.

From a perusal of the impugned order and the material on record, I do not find any material to show that an emergency existed so as to invoke the power under Section 146 Cr.P.C., to attach the property in question. When the report indicates that one of the parties is in possession either rightly or wrongly, the Magistrate cannot pass an order for attachment on the ground of emergency.

Having given my anxious thought to the rival submissions of the parties and keeping in view of the law laid down by Hon''ble the Apex Court and the material available on record, I am of the view that the impugned order passed by the learned Additional City Magistrate under Section 146 Cr.P.C. for attachment of the property is bad in law and is liable to be set aside.

In the result, the application under Section 482 Cr.P.C., is allowed and the order dated 24.06.2014 passed by learned Additional City Magistrate-Vth, Lucknow directing attachment of House No. A-314, Indira Nagar, Lucknow, is hereby set aside.