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ORISSA HIGH COURT
D.P. Mohapatra, J.
Banamali Mohanty - Petitioner
versus
Dolagovinda Das & Ors. - Opposite Parties
Criminal Revision No. 115 of 1992
Decided on 13.7.1993
Counsel for the parties:
For the Petitioner - G.N. Mohapatra.
For the Opposite Parties - B.H. Mohanty.
Held, that no general rule or strait jacket formula can be laid down to determine the question whether a proceeding under section 145, Cr.P.C. should be initiated during pendency of a proceeding under the Consolidation Act. The position depends on the facts and circumstances of each case. Without intending to be exhaustive, I may say that the criteria which are relevant for determination of the question are - the case pleaded by contesting parties in the 145 proceeding, the nature of controversy raised in the case, the stage at which the proceeding under the Consolidation Act stands, whether there has bee determination of the question of possession of the disputed property in the consolidation proceeding and whether any order has been passed in such a proceeding, whether any interim order for protecting the corpus of the property in dispute and for safe-guarding the interest of the parties is available to be passed in the case and the last but not the least important is the existence of apprehension of breach of peace. As discussed earlier, the primary purpose for initiation of a proceeding under section 145, Cr. P.C. is to prevent breach of peace between the rival parties and to determine which of the parties was in possession of the property in dispute on a particular date, i.e. the date of the preliminary order. Neither is such a proceeding intended nor the Magistrate is competent to decide the question of title to the property. The parties are to get the question of title settled before the competent civil court or revenue authority as the case may be. However, mere filing of a civil suit or pendency of a proceeding before the revenue authority does not deprive the Magistrate of the jurisdiction to initiate proceeding under section 145, Cr. P.C. if he is satisfied that there exists apprehension of breach of peace which necessitates taking action under the Criminal Procedure Code. Ordinarily, during pendency of a regular proceeding in civil court or competent revenue court in which the question of right, title, interest as well as possession of the property in dispute between the parties is under enquiry and there is ample scope for the parties to approach that court/authority for interim order, the Magistrate should not initiate a proceeding under section 145, Cr. P.C. and should not embark on a Parallel enquiry in the matter. (Para 5)
Further held, that the learned Magistrate has not applied his mind to the different relevant aspects of the matter. He seems to have dropped the 145 proceeding merely on the finding that the village in which the lands in dispute are situated had come under the consolidation scheme. He made no attempt to find out the stage of such proceeding, the order, if any, passed therein and whether on the basis of the decision in the consolidation proceeding the case before him could be disposed of consideration of these matters was particularly necessary and relevant since the question of maintainability was not raised at the initial stage but was raised after recording of evidence had commenced, and the village in question had been included in the consolidation scheme by notification issued in 1988, i.e. about three years prior to initiation of the 145 proceeding. (Para 6)
Result: Revision allowed.
JUDGMENT
D.P. Mohapatra, J. - The question that falls for determination in this case is whether during pendency of a proceeding under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, "the Consolidation Act") initiation of a proceeding under section 145 of the Code of Criminal Procedure was bad.
2. The first party in the proceeding under section 145, Cr. P.C. (Criminal Misc. Case No. 48 of 1991) has filed this revision petition under sections 397 and 401, Cr. P.C. challenging the order dated 12.11.1991 of the Executive Magistrate, Jajpur dropping the proceeding and leaving it to the parties to agitate the dispute regarding right, title, interest coupled with possession over the disputed land before the proper forum for decision.
3. The factual backdrop of the case necessary for appreciation of the point formulated earlier may be stated thus:
On perusal of the report of the Officer-in-charge, Jajpur Police Station and on being satisfied that there was likelihood of breach of peace between the parties, the learned Executive Magistrate, Jajpur registered Criminal Misc. Case No. 48 of 1991 and passed the preliminary order initiating the proceeding under section 145, Cr.P.C. on 13th February, 1991. In the said proceeding the petitioner was shown as the first party and the opp. parties were shown as members of the second party. As revealed from the discussions in the impugned order, in response to the notice issued by the learned Magistrate, the opp. parties-second party appeared and filed their written statement on 26.2.1991. On the application filed by the petitioner-first party on 23.2.1991 under section 145 (8), Cr. P.C. the learned Magistrate by order dated 23.3.1991 appointed the local R.I. as receiver. The case was taken up for hearing on 20.9.1991; one Laxmidhar Mohanty (P.W. l) and the petitioner Banamali Mohanty (P.W.2) were examined and cross-examined. At that stage on 24.10.1991 the Advocate for the second party filed a petition challenging maintainability of the proceeding under section 145 Cr.P.C. mainly on the ground that consolidation proceeding in village Bandhamunda had been initiated in pursuance of the Gazette Notification dated 28.10.1988 of the Revenue and Excise Department and, therefore, the proceeding under section 145, Cr. P.C. was liable to be dropped. On consideration of the said objection the learned Magistrate passed the impugned order, accepted the objection raised by the opp. parties-second party and dropped the proceeding.
4. On the facts discussed above, the point formulation earlier arises for determination. Before proceeding to examine the case on its merit, it will be convenient to notice some decisions of the apex Court and of this Court which either directly deal with the point or threw light on it.
The apex Court in the case of Ram Sumer Puri Mahant v. State of UP and others1, ruled that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a Parallel criminal proceeding under section 145 of the Code would not be justified; the Parallel proceeding should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. The Court observed that multiplicity of litigation is not in, the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.
The said decision was considered by the Court in the case of Jhunamal alias Devandas v. State of Madhya Pradesh and others2, and its ratio was explained in the following manner:
"…...The ratio of the said decision is that a party should not be permitted
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