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2003 Supreme(Cal) 653
High Court Of Calcutta
Rajendra Nath Sinha
ASHA AGARWAL - Appellant
Versus
MOHAN SHARMA - Respondent
C. R. R. 746 Of 2003
Decided On : 12/23/2003
BIDYUT DUTTA, Bijan Dutta, JAYANTA DAS, Minoti Gomes, R.Basak, S.S.ROY, Sujit Bhunia
A criminal court does not have the jurisdiction to adjudicate the substantive rights of the parties in a dispute involving immovable property, and the pendency of a civil suit relating to the same property bars the initiation of a parallel criminal proceeding under Section 147 of the Cr.P.C.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 147 - SECTION 482 - INHERENT JURISDICTION - CIVIL AND CRIMINAL LITIGATION - JURISDICTION OF CRIMINAL COURT - BREACH OF PEACE - MAINTENANCE OF PUBLIC ORDER - ILLEGAL CONSTRUCTION - REMOVAL OF OBSTRUCTION - PENDENCY OF CIVIL SUIT - APPLICABILITY OF SECTION 147 - SCOPE AND PURPOSE OF SECTION 147 - MULTIPLICITY OF LITIGATION - INJUNCTION - APPOINTMENT OF RECEIVER - QUASHING OF PROCEEDINGS.
Fact of the Case:
The petitioner, Dwaraka Prosad Agarwal, purchased a 10-decimal land in Kharagpur, West Bengal, and constructed a house on it. The opposite parties, claiming ownership of the land, filed a criminal proceeding under Section 147 of the Code of Criminal Procedure, 1973 (Cr.P.C.) before the Executive Magistrate, Midnapore, alleging that the petitioner's construction was illegal and caused a breach of peace. The Magistrate, after holding a summary inquiry, directed the petitioner to remove the illegal construction. The petitioner's revision petition against the Magistrate's order was dismissed by the Additional Sessions Judge, Midnapore. The petitioner then filed the present petition under Section 482 of the Cr.P.C., challenging the orders of the Magistrate and the Additional Sessions Judge.
Finding of the Court:
The High Court held that the criminal court did not have the jurisdiction to adjudicate the substantive rights of the parties and that the learned Sessions Judge failed to appreciate the effect of the Civil Court's judgments in favor of the petitioner. The Court further held that the impugned order of the Magistrate, directing the petitioner to remove the illegal construction, was not sustainable and had to be set aside.
Issues: 1. Whether the criminal court had the jurisdiction to adjudicate the substantive rights of the parties in a dispute involving immovable property. 2. Whether the pendency of a civil suit relating to the same property barred the initiation of a parallel criminal proceeding under Section 147 of the Cr.P.C. 3. Whether the Magistrate's order directing the removal of the petitioner's construction was justified in light of the Civil Court's judgments in favor of the petitioner.
Ratio Decidendi: 1. The High Court held that the criminal court does not have the jurisdiction to adjudicate the substantive rights of the parties in a dispute involving immovable property. The Court relied on the Supreme Court's decision in Ram Sumer Pun Mahant v. State of U.P. and Ors., wherein it was held 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 Cr.P.C. would not be justified. 2. The Court also held that the pendency of a civil suit relating to the same property barred the initiation of a parallel criminal proceeding under Section 147 of the Cr.P.C. The Court relied on the Supreme Court's decision in Yaqub All v. State of Rajasthan and Others, wherein it was held that during the pendency of a civil suit, parallel criminal proceedings under Sections 145 and 146 of the Cr.P.C. cannot be allowed to be continued by converting the same to proceeding under Section 147. 3. The Court further held that the Magistrate's order directing the removal of the petitioner's construction was not justified in light of the Civil Court's judgments in favor of the petitioner. The Court held that the Magistrate should have taken into account the Civil Court's findings and should not have passed an order that would have the effect of nullifying the Civil Court's judgments.
Final Decision: The High Court allowed the petition and set aside the impugned orders of the Magistrate and the Additional Sessions Judge. The Court held that the parties were at liberty to approach the Civil Court for appropriate remedy and protection of their respective rights.
( 1 ) THIS is to consider an application under Section 482 of the Code of Criminal Procedure being aggrieved by an order dated 12. 3. 2003 passed by Sri Sukumar Chakraborty, Additional Sessions Judge, 4th Court, Midnapore in Criminal Revision No. 22 of 1994 affirming the order dated 31. 8. 1994 passed by Sri M. Murmu, Executive Magistrate, Midnapore in M. R Case No. 104 (S) of 1986 under Section 147 of Cr. P. C. directing the Dwaraka Prosad Agarwal (since deceased) to remove the illegal construction or to demolish the construction of brick wall and iron gate of the premises.
( 2 ) IN short the petition is that R. S. Plot No. 868 of Mouza Kharagpur Khas Jungle measuring an area of 0. 10 acre of land belonged to one Gorelala. On 7. 7. 1959 he sold 7 decimals out of 10 decimals of land to one Pyarelal and the rest 3 decimals of land was sold to Badami Devi on 25. 1. 62 Pyarelal purchased Badami's 3 decimals of land on 23. 6. 1964, thus, became the owner of 10 decimals of land and sold the same to the petitioner's predecessor-in-interest, Dwaraka Prosad Agarwal (since deceased) on 22. 9. 77. He mutated his name with the Municipal Authority, paid Municipal taxes and obtained a sanction plan from the office of Kharagpur Municipality and constructed a house thereon as per plan. The Opposite Party Nos. 1 to 7 having no right, title and interest in the said property forcibly occupied a small tin-shed room in a separate room. After purchase of the said land by Dwaraka Prosad Agarwal, the predecessor of the present petition had to fight against a title suit filed by the Opposite Party No. 1 before the learned Second Court of Munsif at Midnapore being Title No. 190 of 1977 which was dismissed on 6. 7. 1987. Dwaraka Prosad Agarwal filed a Title Suit No. 47 of 1980 before the learned Second Court of Munsif at Midnapore for declaration and recovery of khas possession and permanent injunction which was decreed on 18. 8. 1987 which is as follows: (I) "it is ordered and decreed that the suit and the same be decreed ex parte against the defendant with cost, that the right title, interest of the plaintiff in the suit property be hereby declared, ft is also declared that the defendant is a trespasser in the suit property as mentioned in the schedule of the plaint. Plaintiffs do recover Khas possession of the suit property. " (II) "defendant be permanently restrained from making any interference with peaceful possession of the plaintiff in the suit property. "
( 3 ) THE Opposite Party Nos. 1 to 7, however, filed an application before the learned Executive Magistrate, Midnapore, against Dwaraka Prosad Agarwal under Section 147 Cr. PC. in the year 1985 which was rejected by the learned Magistrate. A criminal revision was preferred against the said order and the learned 4th Additional Sessions Judge in Criminal Motion No. 134 of 1986 was pleased to direct the Court below to proceed afresh according to law. Thereafter, a proceeding under Section 147 Cr. P. C. has been drawn up by the learned Magistrate and registered as Misc. Case No. 104 (s) of 1986 wherein Dwaraka Prosad Agarwal submitted a written statement.
( 4 ) ADMITTEDLY there are civil and criminal litigation in between the parties that in Criminal Motion No. 100 of 1985 learned Additional Sessions Judge in his order dated 19. 6. 1985 observed that a portion of the disputed Dog was occupied by the said Dwaraka Prosad Agarwal and that too by the side of a cycle stores belonging to the Opposite Party No. 1.
( 5 ) IN the aforesaid proceeding findings of the opposite parties were taken and closed and Dwaraka Prosad was cross-examined in part on 1. 9. 1993. Thereafter, he was taken ill and had to go to Vellore (Tamil Nadu) for treatment of his left leg. Petition was filed before the learned Magistrate praying time which was eventually not considered and no opportunity was given to adduce further evidence on their part and 20. 11. 1993 was fixed for argument. Thereafter, th
