A Magistrate acting under Section 145 Cr. P. C. should respect any recent decision given by a competent civil court on the question of possession.

IMAMBU VS. HUSSENBI

( 1 ) THIS revision petition arises from the decision of the learned Sub-Divisional Magistrate, gadag, in Miscellaneous Case No. 5 of 1957 on his file, which was a proceeding under Section 145 of the Criminal Procedure Code. After examining the evidence before him, the learned sub-Divisional Magistrate, came to the conclusion that Party No. 1 was in possession of the lands in dispute. Consequently he passed the necessary order under Section 145 (6) Cr. . P. C. As against that order, the party No. II has come up in revision to this court.

( 2 ) THE only point argued before this Court is that the learned Sub Divisional Magistrate was not competent to enquire into the dispute as the very dispute was the subject matter of the suit in I. C. Suit No. 49 of 1957 on the file of the Civil Judge Gadag, which was pending trial at the time the order under revision was passed. This contention does not appear to have been taken either before the learned Sub Divisional Magistrate or before the learned Additional District magistrate, or before the learned Additional District Magistrate, Dharwar, when the matter was taken up in revision. In support of his contention the petitioner's learned Counsel placed strong reliance on certain observations made in Malkappa v. Padmanna (AIR 1959 Mys. 122 ). The head Note of that decision reads that

"a criminal Court should not proceed under Section 145 Cr. . P. C. In respect of immovable property which is the subject matter of Civil litigation actually pending in a civil Court. By reason of the pendency of the civil litigation the magistrate should proceed under Section 107 cr. . P. C. , to bind over the parties, who, it is apprehended, might commit some offence or commit breach of peace. "

This observation undoubtedly supports the petitioner's contention. But the actual decision to which I shall refer presently, is not of much assistance to the petitioner. To restate the point for determination in this case, does the pendency of L. C. Suit No. 49/57 took away the jurisdiction of the Sub Divisional Magistrate Gadag, to enquire into the proceedings (Misc. Case No. 5/57)before him? The language of section 145 Cr. . P. C. does not support the petitioner's contention. Nor is there any support for the view in the decided cases.

( 3 ) FROM the decided cases, three different point of view emerge, i. e. (i) a Magistrate acting under Section 145 Cr. . P. C. is not bound by the decision of a competent Civil court. it is obligatory upon him to assume jurisdiction on being satisfied that a dispute likely to cause a breach of peace exists. The decision of a Civil Court is just one piece of evidence and nothing more. See China Thambi v. Virappa AIR 1937 Rang 202 Mst. Hosnaki v. State AIR1956 All 81 , 1956 Crilj168 , (ii) though the Magistrate is not bound by the decision of a competent Civil Court, the enquiry before him being summary in nature and further his decision being summary in nature and further his decision being subject to the decision of a Civil Court at a later stage, he should respect any recent decision being subject to the decision of a Civil Court at a later stage, he should respect any recent decision a alter stage, he should respect and recent decision given by a competent civil court as regards possession of the property in dispute: See Bandhoo Singh v. Govind Lall, AIR 1954 Pat 310; tekchand v. Sabir Husain, (S) AIR 1955 Hud 65 (FB); Sheo Narayan Singh v. Bharath Singh, air 1954 Pat 182, (iii) The Magistrate is bound by the decision of a competent civil Court and he must use his power under section 145 Cr. . P. C. To implement that decision and not to act in derogation of the same. See Venkatachallam v. Palayam, AIR1953 Mad 594 ; Mrs. V. E. Argles v. Chhail Behari, AIR 1949 AIR 230; Jang Bahadur Singh v. Nazimmul haque, AIR 1947 Pat 245; Masihuddin v. The State AIR1953 All 383 and Pahalwan v. State AIR1951 All 620.

( 4 ) THE preponderance of judicial opinion is in support of the

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