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2003(4) Crimes 279
ALLAHABAD HIGH COURT
K.N. Ojha. J.
Ippan & two Ors. - Revisionists/Applicants
versus
State of U.P. and another - opp. Parties
Criminal Revision No. 114 of 2001
Decided on 12-9-2003
For the Revisionists:Sri P.K. Tyagi and Smt. Archana Tyagi, Advocates.
For the Opp. Parties: Sri Kameshwar Singh, A.G.A.
IMPORTANT POINT
If civil suit is already pending & competent court is seized of the matter any appropriate relief could be obtained from that court & no proceedings u/ s. 145 & 146 Cr.P.C. could be initiated by Magistrate.
Headnote:Criminal Procedure Code, 1973 - Section 145 & 146 - On basis of report of Station Officer & of Tehsildar Magistrate found that there was possibility of breach of peace Conslderln8 the circumstances & evidence of parties Magistrate passed order of attachment - Sustainability of order In view of civil suit already pending - No proceedin8s u/s. 146 & 146 Cr.P.C. could be Initiated by Magistrate.
Held: In view of the law laid down by the Hon'ble Supreme Court reported in 2001(1) JIC 381 (SC). Mahant Ram Saran Dass v. Harish Mohan and another the position of law is clear that if civil suit is already pending and the competent court is seized of the matter, any appropriate relief be obtained from that Court and no proceeding under Sections 145 and 146 Cr.P.C. could be initiated by the Magistrate.
It would be significant to add that if the proceedings under sections 145 and 146 Cr.P.C. are already pending because there is apprehension of breach of peace between the parties, mere filing of civil suit will not take away the right of proceeding under Sections 145 and 146 Cr. P.C. because if it is permitted so, any party having no hope of success under Sections 145 and 146 Cr.P.C. will file civil suit under the provisions of the C. P. C. so that the proceedings under Sections 145 and 146 Cr. P.C. may be dropped. The proceedings under Sections 145 and 146 Cr.P.C. are started because there remains a dispute about the possession of the property and if the matter of possession of property is dealt with the court, the breach of peace is avoided. Even attachment of a property can be made under Section 146 Cr.P.C. but the moment attachment is made by any other competent Court to decide the rights of the parties, the attachment made by the Magistrate under Section 146 Cr.P.C. comes to an end. It means the Magistrate has duty to maintain law and order so that breach of peace may not be committed. If a civil suit in respect of the same property is pending or if a case is pending in a consolidation court where the rights of the parties are to be decided for years together order of status quo continues and no specific order about the possession is passed on any application for interim relief or by finally disposing of the case leaving the parties in the same effort of claiming their own possession and keeping the peace in danger the Sub Divisional Magistrate can exercise the rights, which is vested in him under Sections 145 and 146 Cr.P.C. In this case the matter was decided by the Nayab Tehsildar for mutation and it was pending before the Settlement Officer of Consolidation therefore it was open to the parties to seek remedy before the Consolidation Court. (Paras, 14 & 15)
Result: Revision dismissed.
JUDGMENT
K.N. Ojha, J.- Heard Sri Pankaj Kumar Tyagi and Smt. Archana Tyagi the learned counsel for the revisionists the learned AGA for the State and Sri Kameshwar Singh, the learned counsel for the O.P. No.2.
2. Instant revision has been preferred against order dated 21-12-2000 passed by III Additional Sessions Judge. Muzaffar Nagar in Criminal Revision No. 334 of 2000. Krishna Pal v. Ippan and others whereby the revision was allowed and the order of the Sub-Divisional Magistrate, Shamli district Muzaffar Nagar, dated 25-10-2000 passed in proceeding under Section 145 Cr. P.C. was set aside.
3. According to prosecution Case No. 47 of 2000. Ippan and others v. Krishna Pal and others under Section 145 Cr. P.C. village Sota, police station Babri, district Muzaffar Nagar, proceeded in the court of the Sub Divisional Magistrate Shamli. The Sub Divisional Magistrate perused the report dated 25-9-2000 submitted by the Station Officer, police station Babri and the report of the Tehsildar Shamli dated 23-10-2000 and arrived at the conclusion that there was possibility of breach of peace between the parties in respect of Gata No. 909 area 15-9-15 situate in village Sota, therefore, the Sub Divisional Magistrate directed the parties to appear in his court on 18-112000 to file written statement and evidence in support of their respective cases.
4 Aggrieved there-from Krishna Pal, who is the opposite party No.2 in this revision preferred revision No. 334 of 2000 under Section 397 Cr.P.C. which was decided by the Additional Sessions Judge, Muzaffar Nagar on 21-12-2000. During the pendency of the revision Ippan and others moved an application in the court of the Additional Sessions Judge, Muzaffar Nagar, that civil litigation in respect of cancellation of deed was pending in the court of Civil Judge (Senior Division). Muzaffar Nagar, in respect of the same land, which was later on withdrawn. A prayer was also made by Ippan and others that their millet crop was standing on the land and the opposite party Krishna Pal be restrained from forcibly cutting away the crop. A report was called for from the Tehsildar, Shamli. He submitted his report on 23-10-2000 in which he submitted that the revisionist Sanjeev and others had purchased 1/4th share of the land. Opposite party Krishna Pal was the brother of the seller. A case was contested between the purchasers and the brother of Krishna Pal in the Court of Civil Judge (Senior Division), Kairana, which was decided in favour of purchaser Sanjeev Kumar. The Tehsildar reported that the opposite party Krishna Pal forcibly wanted to cut away the crop, therefore, there was apprehension of breach of peace. Considering the circumstances and the evidence of the parties the Sub Divisional Magistrate passed an order of attachment of the disputed property under Section 146 Cr. P.C.
5. Ippan and others placed reliance on Laxmikant Dabey v. Jamunt and others1, in which it is held by this court that where civil litigation is pending in respect of a property, the proceeding under section 145 Cr. P.C. in respect of the same property is not maintainable in the court of the Magistrate. Krishna Pal bad filed a civil suit in Civil Court but he had withdrawal it as consolidation came in the village, therefore, the Sub Divisional Magistrate again started proceeding under Section 145 Cr.P.C. The learned Additional Sessions Judge held that where a case is pending in the civil court or in the consolidation court before the matter of title is to be decided in a competent court of law, the proceeding under Section 145 Cr.P.C. was not maintainable. The learned Additional Sessions Judge also relied on Jayanti Prasad v. Kamal Naratn2, in which it was held that there was a dispute of the property amongst the cotenure holders. The proceeding under Section 145 Cr.P.C. was not maintainable because a co-tenure holder is entitled for joint possession over each inch of the land. Consequently the revision was allowed and the learned Addi
