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1995 Supreme(All) 275
HIGH COURT OF ALLAHABAD
I.S. MATHUR, J.
Ram Surat Sonkar - Appellant
Versus
IVth Additional Sessions Judge - Respondent
C.M.W. No. 3292 of 1995
Decided on : Feb 28, 1995
Advocate appeared:
Govind Krishna
The pendency of a civil suit does not automatically bar the Magistrate from exercising jurisdiction under Section 145, Cr. P.C. The Magistrate's jurisdiction is ousted only when the civil suit relates to the question of title and possession and the civil court has either decided the question of possession, even by way of interlocutory order, or this question is still open for determination and the parties could approach the civil court for appropriate orders in regard to the injunction or appointment of a receiver.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 145(1) AND 146(1) - JURISDICTION OF MAGISTRATE - PENDENCY OF CIVIL SUIT - ATTACHMENT OF PROPERTY - EMERGENCY - CERTIORARI - SCOPE.
Fact of the Case:
A dispute arose between the parties over a piece of land, with one party claiming it to be a temple and the other claiming it to be a burial ground. The Magistrate passed an order under Section 145(1), Cr. P.C., and on the same day, passed an order under Section 146(1), Cr. P.C., directing the attachment of the land in dispute. A civil suit was pending between the parties, and the civil court had directed the status quo to be maintained.
Finding of the Court:
The court held that the Magistrate's orders were valid and that the pendency of the civil suit did not bar the Magistrate from exercising jurisdiction under Section 145, Cr. P.C. The court also held that the Magistrate was justified in passing the order of attachment under Section 146(1), Cr. P.C., as there was a likelihood of breach of peace.
Issues: 1. Whether the Magistrate's orders under Sections 145(1) and 146(1), Cr. P.C., were valid in light of the pendency of the civil suit. 2. Whether the Magistrate was justified in passing the order of attachment under Section 146(1), Cr. P.C., without any emergency.
Ratio Decidendi: 1. The court held that the pendency of a civil suit does not automatically bar the Magistrate from exercising jurisdiction under Section 145, Cr. P.C. The Magistrate's jurisdiction is ousted only when the civil suit relates to the question of title and possession and the civil court has either decided the question of possession, even by way of interlocutory order, or this question is still open for determination and the parties could approach the civil court for appropriate orders in regard to the injunction or appointment of a receiver. 2. The court held that the Magistrate was justified in passing the order of attachment under Section 146(1), Cr. P.C., as there was a likelihood of breach of peace. The Magistrate had recorded a finding of fact that there was apprehension of communal disturbance and untoward incident resulting from the dispute over the land.
Final Decision: The court dismissed the petition, holding that the Magistrate's orders were valid and that there was no error of jurisdiction or error of law apparent on the face of the record.
I.S. Mathur, J.
1. The petitioner prays for a writ in the nature of certiorari quashing the orders dated 3.1.1995 and 24.1.1995. By the first mentioned order, learned Sub-Divisional Magistrate, Sadar, Azamgarh has passed an order under Section 146 (1), Cr. P.C., and by the order dated 24.1.1995, revision against the first mentioned order has been dismissed by the learned IV Additional Sessions Judge, Azamgarh.
2. I have heard learned counsel for the petitioner at length and, in my opinion, there is no force in this writ petition. It would appear that an order under Section 145 (1), Cr. P.C., was passed in respect of the land in dispute. The contention of the petitioner. Ram Surat Sonkar was that the land belonged to the temple while the opposite parties 3 and 4 claimed it to be a burial ground. The Magistrate passed the order under Section 145 (1), Cr. P.C., on 3.1.1995 and on the same day, he passed the impugned order under Section 146 (1), Cr. P.C., directing the attachment of the land in dispute. A suit, being suit No. 475/91 was pending between the parties in the court of IX Additional Munsif, Azamgarh and on an application for temporary injunction, the Court has directed the status quo to be maintained.
Learned counsel for the petitioner raised three objections against the orders of the courts below, namely that the Magistrate was bound to drop the proceedings in view of the civil suit pending between the parties, the order of attachment could not have been passed on the same day on which the order under Section 145 (1), Cr. P.C. was passed and no case for emergency was made out. The law regarding jurisdiction of the Magistrate under Section 145 (1), Cr. P.C., or 146 (1), Cr. P.C. when a civil suit between the parties is pending is now quite settled. In Ram Sumer Puri Mahant v. State of U. P. and others, 1985 AWC 128, Hon'ble Supreme Court has observed as follows :
"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation."
3. In Dharampal and others v. Ramshri (Smt.) and others, (1993) SCC 435, Hon'ble Supreme Court has further laid down that determination by civil court in regard to possession may not necessarily be a final determination and it may be by way of order of injunction or appointment of a receiver. The Supreme Court has observed:-
"The determination by a competent court of the rights of the parties, spoker of there has not necessarily to be a final determination. The determination may be even tentative at the interim stage when the competent court passes an order of interim injunction or appoints a receiver in respect of the subject matter of the dispute pending the final decision in the suit. The moment the competent court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end. Otherwise, there will be inconsistency between the order passed by the civil court and the order of attachment passed by the Magistrate. The proviso to sub-section (1) of Section 146 itself takes cogniza
