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2015 Supreme(AP) 194
In the High Court of Judicature at Hyderabad
U. DURGA PRASAD RAO, J.
Chella Venkata Ramana Reddy & Another – Appellants
Versus
State of Andhra Pradesh, Rep. by its Public Prosecutor & Another – Respondents
Criminal Petition Nos. 244 of 2015 & 1432 of 2015
Decided on : 06-04-2015
For the Petitioners:Deepak Misra, Advocate.
For the Respondents:R1, Public Prosecutor, R2, Marella Radha, Advocate.
Headnote:
Civil Law – Suit for perpetual injunction – Suit for Partition pending – Suits are pending between the members of A and B groups and some other person main plank of argument of both set of petitioners is that when the civil suits are pending between the parties in respect of same property, the Executive Magistrate shall not exercise jurisdiction to pass an order under Section 145 – Even assuming that he has jurisdiction, still the Executive Magistrate has not followed the procedure contemplated under Section 145. inasmuch as he did not issue notice to the respective rival parties calling for their written statements to make an enquiry to decide which party was in possession of the disputed lands within the stipulated time mentioned in Section 145 – Held, Unable to accept the submission that the principles laid down in Ram case would only apply if the civil Court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram case is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil Court and parties are in a position to approach the civil Court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue – Rulings of the Supreme Court, when the dispute touching the same subject property is already pending in civil court, parallel proceedings under Section 145 are not maintainable before an Executive Magistrate. There is no demur about this legal principle. However, the present case is concerned, it appears, Executive Magistrate has not passed any final order under Section 145by taking the statements of the parties, but he only passed a preliminary order restraining both the parties from entering into property in order to prevent breach of peace. By virtue of dictum laid down by the Supreme Court the Executive Magistrate is debarred from passing any final order under Section 145 declaring his opinion on the possession by either party parties have to approach concerned civil court to vindicate their rights in respect of disputed properties and obtain a suitable interim order as they are representing that standing crop is there on the disputed land. Till the parties obtain a suitable interim order from the civil court, in order to prevent the breach of peace, the preliminary prohibitory order passed by Executive Magistrate, in the considered view of this Court, shall be maintained – Criminal petitions are disposed.
1. Aggrieved by the order dated 14.11.2014 in RC.No.422/2014/DT passed by the Mandal Executive Magistrate, Chebrolu, Guntur District under Section 145 Cr.P.C. restraining both the parties from entering into disputed lands until is further orders to keep peace in the area, both A and B groups have filed the instant petitions under Section 482 Cr.P.C. to quash the aforesaid order.
2 a) Parties in A and B groups are close relations i.e. brothers and other relations and there exist civil disputes between them pending in different courts. For instance, O.S.No.626 of 2013 is a perpetual injunction suit pending on the file of II Additional Junior Civil Judge, Guntur; O.S.No.671 of 2013 is also a perpetual injunction suit pending on the file of Principal Junior Civil Judge, Guntur; O.S.No.627 of 2013 is a perpetual injunction suit pending on the file of III Additional Junior Civil Judge, Guntur. Above all, OS.No.573 of 2014 is a partition suit pending on the file of III Additional District Judge, Guntur. The aforesaid suits are pending between the members of A and B groups and some other persons.
b) Be that it may, the impugned order reads that on the report of SHO, Chebrolu PS that members of both groups causing law and order problem in the village and trying to occupy the disputed lands covered by Sy. Nos.333, 335/5, 435/3, 331 and 332/3 and 6 of Pata Reddypalem village, the learned Executive Magistrate passed the impugned preliminary order under Section 145 Cr.P.C. restraining both the parties from entering into the aforesaid disputed lands until further orders. Hence the instant petitions.
3. The main plank of argument of both set of petitioners is that when the civil suits are pending between the parties in respect of same property, the Executive Magistrate shall not exercise jurisdiction to pass an order under Section 145 Cr.P.C. Even assuming that he has jurisdiction, still the Executive Magistrate has not followed the procedure contemplated under Section 145 Cr.P.C. inasmuch as he did not issue notice to the respective rival parties calling for their written statements to make an enquiry to decide which party was in possession of the disputed lands within the stipulated time mentioned in Section 145 Cr.P.C. Therefore, they argued, the impugned order is vitiated by procedural irregularity besides lacking jurisdiction.
4. Per contra, learned Additional Public Prosecutor submitted that it may be true that when the civil matters are pending, generally Executive Magistrate will not exercise jurisdiction under Section 145 Cr.P.C., but in the instant case none of the parties have produced any injunction order issued by the civil court showing their authoritative possession over the disputed properties and on the other hand, they were wrangling over the properties and causing breach of peace in the area and therefore, upon the report of SHO, the Executive Magistrate had passed a preliminary order restraining both the parties from entering into the disputed properties and the said order of the Executive Magistrate is predominantly aimed at preventing the breach of peace and nothing more. He thus argued that the impugned order does not suffer the vice of illegality or irregularity.
5. In the light of above rival arguments, the point for determination in these petitions is:
“Whether the impugned order of the learned Executive Magistrate is legally sustainable?”
6. POINT: The Executive Magistrate gets jurisdiction to act upon, when the dispute between the parties concerning land or water is likely to result in breach of peace. Section 145 Cr.P.C. envisages and guides an Executive Magistrate how to react in such instances. The object of the section is mainly to maintain law and order and to prevent the breach of peace. The business of the Magistrate is not to go into the question of title but to meet the urgency of situation by maintaining the party in possession of the dispute property. The sin quo non for the Magistrate to embark upo
