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R.C. Lahoti, J.
Bhoopatsingh S/O Khoobsingh And ...
vs
Anrathsingh S/O Khoobsingh And ...
Decided on : 31 August, 1990
CRIMINAL PROCEDURE CODE - SECTIONS 145/146 - SUMMARY OF THE LAW RELATING TO PROCEEDINGS UNDER SECTIONS 145/146, CRIMINAL PROCEDURE CODE.
Fact of the Case:
Dispute over possession of agricultural land between two brothers and their wives. Civil suit filed by the wives for setting aside a sale deed executed by their husbands in favor of the brothers. Interim injunction granted by the Civil Court restraining the brothers from interfering with the wives' possession. Proceedings under Sections 145/146, CrPC initiated by the police apprehending breach of peace. Magistrate passed a preliminary order under Section 145(1), CrPC and directed attachment of the property under Section 146, CrPC. On detailed hearing, the Magistrate dropped the proceedings and directed restoration of possession to the wives in view of the interim injunction granted by the Civil Court. The brothers challenged the Magistrate's order in revision before the Sessions Court, which set aside the Magistrate's order and restored the attachment and appointment of receiver.
Finding of the Court:
The Sessions Court erred in setting aside the Magistrate's order dropping the proceedings under Sections 145/146, CrPC. The pendency of a civil suit for possession and injunction does not bar the initiation of proceedings under Sections 145/146, CrPC, if the Civil Court is unable or unwilling to grant an interim relief for adequate protection of the property during the pendency of the suit.
Issues: Whether the pendency of a civil suit for possession and injunction bars the initiation of proceedings under Sections 145/146, CrPC.
Ratio Decidendi: The law relating to proceedings under Sections 145/146, CrPC is summarized as follows: (i) Where the question of title stands concluded by a decree of a competent Civil Court, proceedings under Section 145, CrPC are misconceived and the remedy lies in initiating proceedings under Sections 107/116, CrPC to bind over the erring party to respect the decree of the Civil Court. (ii) When a civil litigation is pending and the parties can approach the Civil Court for interim orders such as injunction or appointment of a receiver for adequate protection of the property during the pendency of the dispute, there is no justification for initiating parallel criminal proceedings under Sections 145/146, CrPC. If there is apprehension of breach of peace, recourse should be taken to proceedings under Sections 107/116 or Section 144, CrPC. (iii) A concluded order of a Criminal Court under Sections 145/146, CrPC cannot be set aside merely because an unsuccessful party has later approached the Civil Court. The order of the Criminal Court should be permitted to operate unless and until superseded by an order or decree of the Civil Court. (iv) If the Civil Court cannot grant an interim relief or has refused to grant such relief, the jurisdiction of the Magistrate to adjudicate upon the dispute under Sections 145/146, CrPC is not taken away merely because of the pendency of a dispute between the parties before the Civil Court.
Final Decision: The impugned orders of the Courts below are set aside. The parallel proceedings under Section 145, CrPC are directed to be dropped. If the order of attachment has not been carried out, the parties shall be bound by the order of injunction or any other interim order passed or to be passed by the Civil Court. If the order of attachment has already been carried out, the interim custody of the receiver shall continue unless and until set aside or superseded by an order of the Civil Court.
R.C. Lahoti, J.
1. This revision is directed against an order of the Sessions Court whereby in proceedings Under Sections 145/146, Criminal Procedure Code, the Sessions Court has in supersession of the order of the S. D. M. directed the order of attachment and appointment of Receiver to be restored while the learned Magistrate had directed the proceedings to be dropped.
2. The facts are little complicated and need to be noticed with care. For the sake of convenience Bhoopatsingh and Gumansingh, the two brothers and petitioners herein, shall be referred to as 'Party No. 1 and Anrathsingh and Phool Bai, the husband and wife, non-petitioners Nos. 1 and 2 herein, shall be referred to as 'Party No. 2' as they were before the original Court.
3. The property in dispute consists of agricultural land. It appears that the land is recorded in the revenue papers in the name of Vinodsingh and Hukumsingh both minors. Their father Anratsingh, purporting to act as their guardian, transferred the said land by way of sale to Party No. 1. The two minors acting through their mother seem to have filed a civil suit for setting aside the sale and they succeeded in securing an ex parte decree in that C.D.S. No. 346-A/84. Party No. 2 initiated proceedings Under Order 9, Rule 13, Civil Procedure Code for setting aside the ex parte, decree. These proceedings are registered as M.J.C. No. 10/87. Therein they moved an application on 21-8-1987, complaining that the opponents in disguise of the ex parte decree were attempting at taking over possession of the suit property and also trying to alienate the same. By order dated 28-10-1987, the Civil Court directed that the implementation of the ex parte decree shall remain stayed for a period of two months, within which period the parties shall have the M.J.C. proceedings concluded.
4. The Party No. 2 also filed a civil suit (C.O.S. No. 110-A/87) and therein they prayed for the grant of an interim injunction protecting their possession over the suit property. The opposite party having made appearance on 2-9-1988, the Civil Court has passed a bi-parte order in the civil suit holding that the plaintiffs (Party No. 2) appeared to be prima facie in possession of the suit property on the date of the suit and hence the Party No. 1 and the two minors have been restrained from interfering with the possession of Party No. 2 over the suit property.
5. By order dated 11-9-1989 disposing of M.J.C. No. 10/1987, the ex parte decree passed earlier against the Party No. 2, has been directed to be set aside.
6. It further appears that the police of Vidisha having apprehended breach of peace on the question of possession over the suit property, initiated proceedings Under Sections 145/146, Criminal Procedure Code impleading both the parties before the S.D.M., Basoda. The learned Magistrate passed a prelimonary order Under Section 145(1), Criminal Procedure Code and also forming an opinion that the case was one of emergency directed attachment also to be made Under Section 146, Criminal Procedure Code. After hearing both the parties and all the facts of the case having been brought to the notice of the learned Magistrate, a detailed order was passed on 20-6-1988 whereby the proceedings were directed to be dropped recalling the attachment and also directing the Police and the Receiver to deliver possession of the suit property to Party No. 2 in view of the interim order of injunction of, the Civil Court referred to hereinabove.
7. The Party No. 1 preferred a revision. The learned Sessions Court formed an opinion that the two minors were not parties before the Magistrate and they too ought to have been heard, that without recording evidence, the learned Magistrate could not have directed possession to be restored back to Party No. 2 from the Receiver, and, that until the matter achieved a finality, the order of attachment and custody with the Receiver should continue to remain effective.
8. It is unfortunate that in spite of the Apex C
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