1996 Supreme(Raj) 1268
RAJASTHAN HIGH COURT
S.C.Mital, J.
Sushil Kumar - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Misc. Petition No. 492 of 1991.
Decided On : 09-09-1996
The pendency of a civil suit does not always exclude the jurisdiction of the Magistrate to initiate proceedings under Sections 145 & 146 CrPC. The satisfaction of the Magistrate about the existence of an emergency for issuing an order under Section 146 CrPC cannot be substituted by the satisfaction of the revisional Court. The Magistrate is competent to exercise its jurisdiction under Section 146 CrPC at any stage of the proceedings under Section 145 CrPC if the essential conditions are fulfilled therein, i.e., the existence of an emergency.
Headnote:
CRIMINAL PROCEDURE CODE - SECTIONS 145, 146 - POSSESSION DISPUTE - PENDENCY OF CIVIL SUIT - INITIATION OF PROCEEDINGS UNDER SECTIONS 145 & 146 - ABUSE OF PROCESS OF COURT - EMERGENCY - ATTACHMENT OF DISPUTED PROPERTY - SATISFACTION OF MAGISTRATE - REVISIONAL COURT'S INTERFERENCE.
Fact of the Case:
A dispute arose between a husband and wife over the possession of a house. The wife filed an application under Section 145 of the Criminal Procedure Code (CrPC) for possession of the disputed portion of the house. The Magistrate, after being satisfied about the existence of an emergency, passed an order under Section 146 CrPC attaching the disputed property. The husband challenged the order before the Sessions Judge, who upheld the Magistrate's order. The husband then filed a petition under Section 482 CrPC in the High Court, arguing that the initiation of proceedings under Sections 145 & 146 CrPC was an abuse of the process of the Court since a civil suit was pending between the parties.
Finding of the Court:
The High Court held that the pendency of a civil suit does not always exclude the jurisdiction of the Magistrate to initiate proceedings under Sections 145 & 146 CrPC. The Court observed that whether the proceedings under Section 145 CrPC can continue when a civil suit is also pending is a matter that can only be decided in the facts and circumstances of each case and the nature of the relevant pending civil proceedings. The Court further held that the satisfaction of the Magistrate about the existence of an emergency for issuing an order under Section 146 CrPC cannot be substituted by the satisfaction of the revisional Court. The Court also held that the Magistrate is competent to exercise its jurisdiction under Section 146 CrPC at any stage of the proceedings under Section 145 CrPC if the essential conditions are fulfilled therein, i.e., the existence of an emergency.
Issues: 1. Whether the initiation of proceedings under Sections 145 & 146 CrPC is an abuse of the process of the Court when a civil suit is pending about the disputed property? 2. Whether the satisfaction of the Magistrate about the existence of an emergency for issuing an order under Section 146 CrPC can be substituted by the satisfaction of the revisional Court? 3. Whether the Magistrate is competent to exercise its jurisdiction under Section 146 CrPC at any stage of the proceedings under Section 145 CrPC?
Ratio Decidendi: 1. The pendency of a civil suit does not always exclude the jurisdiction of the Magistrate to initiate proceedings under Sections 145 & 146 CrPC. 2. The satisfaction of the Magistrate about the existence of an emergency for issuing an order under Section 146 CrPC cannot be substituted by the satisfaction of the revisional Court. 3. The Magistrate is competent to exercise its jurisdiction under Section 146 CrPC at any stage of the proceedings under Section 145 CrPC if the essential conditions are fulfilled therein, i.e., the existence of an emergency.
Final Decision: The High Court dismissed the petition under Section 482 CrPC, upholding the order of the Sessions Judge and the Magistrate's order attaching the disputed property.
JUDGMENT
1. - This petition is directed against the judgment dated 29.8.1991 passed by learned Sessions Judge, Bikaner in Cr. Revision Petition No. 52/90 whereby the judgment passed on 18.8.1990 passed by learned Addl. District Magistrate (City), Bikaner in the proceedings under sections 145 & 146 Cr.P.C. was confirmed.
2. Gayatri Devi w/o Ratna Ram resident of New Line Gangashahar, Bikaner submitted an application under section 145 Criminal procedure code along with her affidavit with the averment that she is living in plot No. 81 for the last 10 years with her two sons. Her house described in para one of the application was constructed by her and she is owner of it. Her husband used to beat her and when it became impossible to live together she started living separately with his two sons for the last two years. The plot of this house has purchased in the name of her husband, her husband took in exchange another plot in the name of petitioner relinquishing her right over this plot. She took water and electric connection in her name. After the marriage of her son Ganesh Kumar, her husband was shifted to one part of this house by Ganesh Kumar in order to avoid criticism in the society. That portion was separated by raising a wall which has been shown by brown colour boundaries in the map and she is living in the southern part shown in the map but her husband continued to treat her harshly and abusively and left this house before two-three months for living in his house situated at Nagdecheji, she, therefore came in possession of the northern part of the house. On 26.6.1990 non-petitioner No. 1 & 2, Radheshyam and Lalchand came on a scooter took forcible possession of northern side of the house and claim that house belonged to them and they will further take forcible possession of the whole house. They also took liquor and many persons of the Mohalla assembled there. They also started obstructing the applicant non-petitioner No. 2 from using the roof of the house. They threatened on 5.7.1990 to vacate the complete house otherwise she will be killed by them. They also quarrelled and threatened to take forcible possession in the presence of Rajkamal Chaudhary, Bhopal Singh and Pukhram. Her son immediately reported the matter to Police Station and A.S.I. Kalyansingh with force reached on the spot but even then they continued to quarrel and threaten to take possession forcibly. Kalyansingh ASI in the above circumstances arrested the non-petitioners and other two persons and took them to Police Station and presented a complaint under section 107 & 116(3) Criminal procedure Code Even then non-petitioners and other two companions openly declared and threatened to take forcible possession of that part of the house which is in the possession of applicant non-petitioner No. 2. There is serious apprehension of breach of peace and dispute has arisen about the possession of northern part of his house shown in the map attached with the application. In the above circumstances, a situation of emergency has also arisen and therefore, it was prayed that possession of the disputed portion may be declared of the applicant non-petitioner No. 2 and possession handed over to him. An application was also submitted under section 146 Criminal Producer Code with the same facts and affidavits by the applicant non-petitioner No. 2. Pukhraj and Bhopalsingh were submitted in support of the same. Upon considering the applications under section 145 Criminal Producer Code and 146 Cr.P.C. and the affidavits and after recording satisfaction, preliminary order was drawn under section 145 Criminal Producer Code on 20.7.1990 and notices were issued against non-petitioners. The proceedings were adjourned on 31.7.1990 and 18.8.1990 for the service of non-petitioner. On 18.8.1990 the learned Addl. District Magistrate (City) Bikaner on his satisfaction and considering application under section 146 Criminal Producer Code and affidavits found the case of emergency and issue
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