2000 Supreme(SC) 757

2000(4) Supreme 665
SUPREME COURT OF INDIA
(From Allahabad High Court)
K.T. Thomas, D.P. Mohapatra and S.N. Variava, JJ.
Amresh Tiwari  -Appellant
versus
Lalta Prasad Dubey & Anr. -Respondents
Criminal Appeal No. 360 of 2000
(Arising out of SLP (Crl.) No. 3858 of 1999)
Decided on 11-4-2000
Counsel for the Parties :
For the Appellant : Syed Ali Ahmad, Syed Tanweer Ahmad, R.D. Upadhyay, G.G. Upadhyay, Vikas Bansal, Advocates.
For the Respondents : Krishnan Venugopal, Nishkant Pandey, Ms. Parchi Mishra, Ms. Naresh Bakshi, Advocates.

IMPORTANT POINTS
1. Merely because the High Court takes a different view is no ground for passing strictures against the lower court.
2. Merely because revision against interim order under Section 145 Cr. P.C. came to be dismissed, subsequent dropping of proceeding on fresh application on basis of statements recorded that property involved already subject matter of civil suit which is still pending cannot be faulted with.

Headnote:Code of Criminal Procedure, 1973-Section 145-Dispute concerning land or water likely to cause breach of peace-Dropping of proceeding-Legality of-Suit for declaration and possession in respect of property filed-Status quo ordered in civil suit-Proceeding under section 145 initiated on police report to SDM stating existence of dispute which was likely to cause breach of peace-Appellants plea to drop proceedings-Interim order rejecting appellants plea of pendency of suit, on basis of representation property in question different-Statements recorded wherein respondent admitting property same as involved in civil suit-SDM dropping proceedings on petition by appellant-Justified-High Court not correct in setting aside order solely on ground that earlier an application for dropping proceedings had been dismissed-High Court not justified in passing strictures against SDM-Merely because High Court takes a different view is no ground for passing stricture against lower Court.

       Held : In our view the High Court has committed an error in setting aside the Order of the Magistrate on the basis that the earlier Order was final and binding. The earlier Orders were interim Orders. They were passed before any evidence or statements had been recorded. Those Orders were passed only on the basis of the contentions of the parties. At that stage the 1st Respondent had contended that the civil proceedings did not relate to the same properties in respect of which the proceedings under Section 145 Criminal Procedure Code were adopted. Thereafter statements were recorded in the Section 145 proceedings. In her statement the 1st Respondent admitted that proceedings under Section 145 Criminal Procedure Code were in respect of property which formed the subject-matter of the civil Suit and in respect of which an Order of maintenance of status quo had been passed by the civil Court. The S.D.M. was bound to take a decision afresh based on the statements before him. It is settled law that interim Orders, even though they may have been confirmed by the higher Courts, never bind and do not prevent passing of contrary Order at the stage of final hearing. The learned Single Judge of the High Court appears to have lost sight of this. The learned single Judge also failed to appreciate that the earlier Orders were passed on the footing that the civil proceedings related to different properties and were between different parties. Subsequently, when it became clear that the civil proceedings were in respect of the same properties and between the same parties even the factual position had changed. For that reason, also the earlier Order would not be binding. (Paras 10 & 11)

       In this case the civil suit had been filed first. An Order of status quo had already been passed by the competent Civil Court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumer Puri Mahant v. State of U.P. & Ors., 1985(1) SCC 427 fully applies. We clarify that we are not stating that in every case where a civil suit is filed. Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the Civil Court that proceedings under Section 145 should not be allowed to continue. This is because the Civil Court is competent to decide the question of title as well as possession between the parties and the orders of the Civil Court would be binding on the Magistrate. (Para 14)

       Held, consequently that the impugned Order is set aside. In our view, the S.D.M. was right in discontinuing the proceedings under Section 145 Criminal Procedure Code. The Order passed by the S.D.M. on 9th of June, 1999 is restored. (Para 15)