IMPORTANT POINT
Sections 107, 145 and 146 Cr. P.C. 1973 confers special jurisdiction on executive Magistrates. Mere pendency of a civil litigation in respect of a property does not oust the jurisdiction of a Magistrate to proceed under Section 145 Cr. P.C.

JUDGMENT

I. P. Singh J. Pancham & Bechan applicant has filed this application u/s 482 Cr.P.C for getting quashed the entire proceedings pending u/s 145, Cr. P.C. in the court of S. D. M. Ballia in case No. 87 of 1983 (wrongly mentioned as no. 57 of 1983 in the application) and also for getting quashed the preliminary order dated 3-11-1983 and another order passed u/s 146 Cr. P.C. dated 31-12-1983 which confirmed attaching the property in dispute and appointing receiver thereof.

2. The matter is at admission stage though counter affidavit of Sita Ram, O.P.I. has been filed in pursuance of notice of court.

3. It appears that on the report of S.P.S. Baraiya, district Ballia dated 1.11.83, stating that there existed a dispute between the parties over a number of plots mentioned therein, situated in Bishanpura P.S. Baraiya, giving rise to an apprehension of breach of peace, SDM, Ballia passed preliminary order dated 3-11-1983 fixing 11.11.83 for filing written statements by the parties. On that date applicant Pancham @ Bechan did not appear and did not file written statement. He asserts he was not served for that date. The opposite-party Sita Ram heard on his application on that date and order u/s 146, Cr.P.C u/s passed holding that there was an emergency and directed attachment of plots in dispute and simultaneously appointed Sri Ambika Tewari, Advocate, as receiver of the plot in dispute. The receiver was also to proceed to the spot to effect the said attachment and thereafter to manage the same.

4. The applicant has, however, mentioned that he filed his written statement on 14-11-83 and till then Sita Ram opposite party had not filed any written statement. Neverthless he was taken by surprise when Sri Ambika Tewari, Advocate, along-with Sitaram opposite party visited the spot on 24- I 1-83 and represented himself to be receiver appointed by the court and was to attach the plots in dispute and thereafter to auction the said land for Rabi crop. He further contended that with the help of his counsel he inspected the file in question in the court on 25.11.83 and was taken aback to find that an application dated 11-11-83 had been placed on the record and the order of attachment and appointment of receiver had been obtained on that on 11-11-83. Therefore, he moved an application on 25-11-83. whereon the S.D.M. stay ed the execution of the auction upto 28-11-83. A few adjournments resulted on fixing 31-12-83 for orders. On that date the stay order was set aside with the result that the earlier order dated 11-11-83 was confirmed.

It was further contended that the same property had been the subject matter of the litigation since 1967 between the parties in revenue courts and finally Pancham applicant Wall the case from the Board of Revenue on 9.3.83. Sita ram opposite party filed writ petition in the High Court against the decision of the Board of Revenue which was admitted and still pending.

5. It was contended that on account of the pendency of the matter in the High Court with respect to the same property between the same parties proceedings u/s 145,Cr. P.C. or for that matter u/s 146 Cr. P.C. on the basis of the police report dated 2-11-83 were misconceived, without jurisdiction and illegal. It was further disclosed that earlier to the initiation of proceedings u/s 145 Cr. P.C. action u/s 107/116, Cr. P.C. had already been taken between the parties. It was reiterated that even if some apprehension of breach of peace had again arisen between the parties recourse could have been and ought to have been taken u/s 107/116 Cr. P.C. and not u/s 145 Cr. P.C. in view of the pendency of the proceedings in the civil or revenue courts.

6. For these reasons, the above prayer for quashing the proceedings u/s 145, Cr. P.C. and orders dated 3-11-83 and 31-12-83 has been made.

7. In the counter affidavit, Sitaram, O. P. no. 1 has vouched that plots involved in the proceedings u/s 145 Cr. P.C. were the subject matter of suit no. 348 of 1974, Sitaram v