Point of law: When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, Court see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code.

ORDER :

By way of instant petition, exception has been taken to the proceedings u/s 145 Cr.P.C., initiated by learned Sub Divisional Magistrate, Palampur, District Kangra, H.P. and the order dated 26.06.2020 passed therein. The impugned order reads as under:-

“Case No. U/S 107/150/145 CrPC

State (Smt. Sangeeta Sood) Versus Kalpna Sood etc.

Conditional Order U/S 107/150/145 CrPC

Notice to:- 1. Kalpna Sood d/o Late Sh. Ishwar Dass Sood, 2. Yoti Sood, D/o Late Sh. Inshwar Dass Sood, r/o Village Pheta Bazar P.O. Bhawarna, Tehsil Palampur, District Kangra, H.P.

Conditional Order:-

On the basis of the contents recorded in the kalandra under Section 145 Cr.P.C. and the statements attached thereto a dispute is likely to induce a breach of peace between complainant and the respondent and is within my jurisdiction. All the above said parties were called upon to file written statements to their respective claims as to the fact of actual possession of said land on or before 24.07.2020 at about 2.00 p.m. and after being satisfied by due inquiry, thereupon, without reference to the merits of the claim of either of the parties to the legal right of possession, the claim of actual possession by the complainant is true.

Smt. Sangeeta Sood w/o late sh. Ashok Sood in possession of the said land in question and entitled to remain as such until ousted by due course of law and I do strictly forbid any disturbance of his possession in the meantime. Copy of this notice is ordered to be affixed at the place of dispute.

Issued under my hand and seal of the Court on this day of 22-06-2020.

Sd/-

Sub-Divisional Magistrate,

Palampur, Distt. Kangra (H.P.)

Endst: No.631/SDP-Reader

Dt.26.06.2020.

SHO Bhawarnaa for Service to the respondent and notice be affixed at the place of dispute and compliance report be intimated to the office within time.

Sd/-

Sub-Divisional Magistrate,

Palampur, Distt. Kangra (H.P.)”

2. It is not in dispute that impugned order pertains to the same land which is the subject matter of a Civil Suit for permanent prohibitory injunction filed by the petitioner against respondent No.2 in the Court of Learned Senior Civil Judge, Palampur as Civil Suit No. 325 of 2019. Possession of property in question is already in issue in said suit.

3. Along with the above said civil suit, an application for interim injunction being CMA No. 598 of 2019 was also filed by the petitioner against respondent No.2, which was dismissed by the learned Senior Civil Judge, Palampur on 23.11.2019. Petitioner preferred an appeal under Order 43, Rule 1 (r) of the Code of Civil Procedure which has also been decided by the learned Additional District Judge-III, Kangra at Dharamshala as Civil Misc. Appeal No. 3-D/XIV 2030 vide order dated 25.11.2020, and the parties have been directed to maintain status quo qua nature and possession of the suit land. Further, the order passed by the learned Additional District Judge-III, Kangra at Dharamshala is subject matter of CMPMO No. 87 of 2021 before this Court.

4. Thus, clearly the impugned order has been passed, when the civil court is already seized of the matter with respect to the possession of the property in questions. It is trite law that the Magistrate exercising power under Section 145 of the Cr.P.C., should not invoke the said jurisdiction when possession is being examined by a Civil Suit. In Ram Sumer Puri Mahant versus State of U.P. and others, (1985)1 SCC 427, the Hon'ble Supreme Court has held as under:-

“2. Challenge in this application is to the order of the Allahabad High Court refusing to interfere in its revisional jurisdiction against an order directing initiation of proceedings under Section 145, CrPC (Code for short), and attachment of the property at the instance of respondents 2-5. Indisputably, in respect of the very properly there was a suit for possession and injunction being Title Suit No. 87/75 filed in the Court of the Civil Judge at Ballia wherein the question of title was gone into and by judgment dated February 28, 198