Important Point
Proceedings u/s. 145 Cr.P.C. are not competent when either the matter of title & possession has bear adjudicated by competent civil court or is pending adjudication before such court.

JUDGMENT

Umeshwar Pande, J.—This revision under Sections 397/401 of the Code of Criminal Procedure, is directed against the Judgment and Order of the VI Additional Sessions Judge, Varanasi, dated may 22, 1986.

2. At the instance of revisionist’s father, the Senior Superintendent of Police, Varanasi directed the concerned police station to make inquiry in the allegations of his complaint. Thereupon the Chaubeypur police on inquiry found that there was an apprehension of breach of peace in respect of possession over the disputed land and a report under Section 145 Cr.P.C. was submitted to the Sub Divisional Magistrate concerned. On that report of the police, preliminary order dated 19-6-1983 was passed and the Magistrate subsequent thereto on 25-6-1983 passed order for attachment under Section 146 Cr.P.C.

3. The first party Sri Ram Chaubey placed his title and possession over the disputed land through a sale deed dated 04-10-1974 executed by one Kamla Rai, the transferee of the original owner Smt. Indrawani Devi.

4. The present revisionist Kailash Nath, the second party presented his claim before the Magistrate stating that the property in dispute originally belonged to one Smt. Indrawani Devi widow of Ram Adhar. She had executed a will-dated 1-2-1973 in favour of Sharda Prasad Singh and Nageshwar Prasad Singh. After her death, the aforesaid two persons became the owners of the property in dispute and they executed an agreement to sell dated 11-8-2002 in favour of second party revisionist Kailash Nath. Kamla Rai was not competent to execute a sale deed dated 4-10-1974 in favour of Smt. Indrawati Devi. The sale deed was result of fraud and misrepresentation and accordingly the same was challenged by Smt. Indrawani Devi in a suit for can-cellation of sale deed and permanent injunction being Original Suit No. 269 of 1978 Smt. Indrawani Devi and others v. Kamla Rai and others in the Civil Court. An ex parte decree in the suit, as back as on 29-8-1981, was passed and the sale deed dated 5-5-1973 executed in favour of Kamla Raj stood cancelled. This decree is binding upon the first party Shri Ram Chaubey.

5. The Sub Divisional Magistrate concerned after considering the respective cases of the parties and the evidence available on record held that the second party was in possession over the disputed property at the relevant point of time and passed directions for the release of the said property in his favour. This order of the Magistrate was challenged before the Sessions Judge in Criminal Revision No. 403 of 1985 by the first party Shri Ram Chaubey on different grounds. One of the grounds was that the proceedings of civil suit in respect of the disputed property were pending and proceedings under Section 145 of the Code would not be maintainable. The learned Addl. Sesssions Judge did not however, find it a sufficient and sound legal foundation for dropping the proceedings and thus negatived the plea. He allowed the revision and remanded the case to the Sub Divisional Magistrate concerned for fresh decision.

6. The learned counsel for the opposite party has contended that the revisional Court had decided the merit of the order passed by the Magistrate and as such a second revision before this Court is not maintainable.

7. The learned counsel has referred to the case of Dharampal and others v. Smt. Ramshri and others1. Reliance has also been placed upon the case law of Ramesh Chandra Saxena v. VI Additional Sessions Judge, Aligarh and others2.

8. Interpreting the provisions of Section 397 (3) of the Code, the Apex Court in the case of Dharampal (supra) has held that even within the scope of inherent powers under Section 482 of the Code, a power cannot be exercised by the Court which is expressly barred under the Code and a second revision at the instance of the same party is not maintainable. In the case of Ramesh Chandra Saxena (supra), the learned Single Judge of this Court has followed the same principles. He has, however, w