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1999 Supreme(Pat) 1092
PATNA HIGH COURT
I.P.Singh, J.
Madan Mishra
Versus
Triloki Nath Pandey : Kunti Devi : Amaresh Pandey
Criminal Revision No. 35 of 1998 ;
Decided On : OCTOBER 11, 1999
When a civil suit involving the same subject matter is pending, especially when the question of possession is being examined by the civil court, parallel criminal proceedings under section 145 of the Code of Criminal Procedure should not be allowed to continue.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 145 - SECTION 146 - SECTION 144 - SECTION 397 - SECTION 401 - DROPPING OF PROCEEDINGS - ATTACHMENT OF DISPUTED LAND - PENDENCY OF CIVIL SUIT - APPLICABILITY OF SUPREME COURT AND HIGH COURT DECISIONS - INTERPRETATION OF LEGAL PROVISIONS - RELEVANCE OF RELATIONSHIP BETWEEN PARTIES - ANALYSIS OF FACTUAL CIRCUMSTANCES.
Fact of the Case:
The petitioner, Madan Mishra, filed an application under sections 397 and 401 of the Code of Criminal Procedure, challenging an order passed by the Executive Magistrate, Bagaha, dropping a proceeding under section 146(1) of the Code and setting aside an order of attachment of disputed land. The petitioner claimed to be in possession of the land through a mortgage in favor of his father, while the opposite party claimed to have purchased the land and filed a title suit in the Civil Court. The petitioner argued that he was not a party to the title suit and the impugned order was based on misinterpretation of judgments of the Supreme Court and the High Court.
Finding of the Court:
The court held that the impugned order was justified and dismissed the petitioner's application. It found that the petitioner was the brother-in-law of the contesting defendant in the title suit and had filed the petition under section 144 of the Code during the pendency of the suit. The court relied on judgments of the Supreme Court and the High Court, which held that parallel criminal proceedings should not be allowed to continue when a civil suit involving the same subject matter is pending, especially when the question of possession is being examined by the civil court.
Issues: 1. Whether the impugned order dropping the proceeding under section 146(1) of the Code and setting aside the order of attachment was justified? 2. Whether the petitioner, not being a party to the title suit, was entitled to continue the proceeding under section 145 of the Code?
Ratio Decidendi: The court held that the ratio of the Supreme Court and High Court decisions cited by the Executive Magistrate was applicable to the facts of the case. It reasoned that the subject matter of the proceeding under section 145 of the Code and the title suit were the same, and the petitioner had the opportunity to be added as a party to the suit but failed to do so. The court also noted that the petitioner had filed the petition under section 144 of the Code during the pendency of the title suit, which indicated an attempt to circumvent the civil court proceedings.
Final Decision: The court dismissed the petitioner's application, upholding the Executive Magistrate's order dropping the proceeding under section 146(1) of the Code and setting aside the order of attachment.
I.P.Singh, J.
1. This is an application under sections 397 and 401 of the Code of Criminal Procedure (in short the Code). It is directed against the order dated 25.10.1997 passed in Case No. 916 of 1996 u/s 144 Cr.P.C. Tr.No. 478 of 1997 u/s 145 Cr.P.C. learned Executive Magistrate, Bagaha, District West Champaran by which he dropped the proceeding running under section 146(1) of the Code and set aside the order of his predecessors in office passed on 29.8.1997 attaching the disputed land under section 146(1) of the Code.
2. It appears that the petitioner had filed an application on 3.8.1996 before the learned Sub-Divisional Magistrate, Bagaha for initiating a proceeding under section 144 of the Code with respect to Kheshra Nos. 227, 228 and 231 measuring 19 Kathas 14 Dhurs situated in village-Ojhawalia. In this petition the petitioner claimed that the aforesaid land was mortgaged in favour of his father Deo Nandan Mishra in the year 1966 by one Sakaldeo Mishra of village Mahuwar Tola Ojhawalia, P.S. Samara. Accordingly the possession over the aforesaid land was handed over to the mortgagee Deo Nandan Mishra. On his death the present petitioner being his son is coming in possession of this land. However, opposite party threatened the petitioner to dispossess him from the disputed land with the help of brute force. On this ground the petitioner under section 144 of the Code was filed.
3. The learned Sub-Divisional Magistrate, Bagaha by his order dated 3.8.1996 initiated a proceeding under section 144 of the Code restraining both the parties from going over the disputed land and asked both the parties to file their show cause in the matter. Though the petitioner filed his show cause on 26.9.1996 the opposite party did not appear as a result of which the case was heard ex-parte on 26.9.1996 and the proceeding was converted into one under section 145 of the Code by the order of this date. Inspite of this the opposite party did not appear and finally on 29.8.1997 the learned Magistrate attached the disputed land under section 146(1) of the Code.
4. On 15.10.1997 the opposite party filed a petition before the learned Magistrate for dropping the proceeding and also for withdrawing the order of attachment passed on 29.8.1997. In this petition the opposite party pointed out that a title suit with respect to the disputed land was pending before the Civil Court. This suit was filed by opposite party no.1 in which the brother- in-law (Bahnoi) of the petitioner, namely Hari Shankar Mishra is the main contesting defendant. It was numbered as T.S.No. 90/95 and was with respect to the present disputed land. The opposite party had contended that the petitioner of the present case had been set up by the contesting defendant, namely, Hari Shanker Mishra to file the petitioner under section 144 of the Code while in T.S.No. 90/95 plaintiff-opposite party no.1 got injunction order in his favour from the learned Sub-ordinate Judge, Bagaha by his order dated 3.8.1996. In this connection it may be mentioned that according to opposite party no.1 the present petitioner, namely, Madan Mishra is nobody else than the brother-in-law of the contesting defendant, Hari Shanker Mishra. Opposite party had claimed to have purchased the disputed land on 26.6.1995 from one Yasoda Devi. In the suit Hari Shanker Mishra the contesting defendant disclosed that he got the mortgage redeemed. When the plaintiff-opposite party no.1 got the information about the initiation of the proceeding under section 144 of the Code he filed a petition on 25.2.1997 in T.S.No. 90/95 for adding the present petitioner as a party to the said suit. The said petitioner was, however, rejected by the learned Subordinate Judge by his order dated 16.7.1997.
5. The petitioner has contended that he is not a party to T.S.No. 90/95 and, therefore, no relief was claimed against him. However, the learned Executive Magistrate by the impugned order dated 25.10.1997 dropped the proceeding under se
