The Executive Magistrate must conduct a detailed enquiry under Section 145(5) of the CrPC, respecting civil court jurisdiction in property disputes.

ORDER:

This writ petition is filed seeking following relief:

“…to call for records in respect of the proceedings of the respondent No.3 in RC.No.B/444/2021, dt.12-07-2022 u/Section 145(5) CrPC or issue a writ or order or direction in the nature of Writ of Mandamus or any other writ or order or direction declaring the proceeding of the respondent No.3 in RC No.B/444/2021,, dt.12-7-2022 u/Sectin 145(5) CrPC as illegal and consequently direct the respondent No.2 to issue possession certificate to the petitioner for the agricultural land of Ac.3.21 guntas situated in survey No.399/64/1, 399/64/2 and Kesamudram Village and Mandal, Mahabubabad district pursuant to the agreement dt.5-9-2019 executed in favour of the petitioner by respondent No.5 and pass such other order or orders…”

2. Heard both sides and perused the record.

3. It is stated that the petitioner and respondent No.5 started a trading business and in the course of business, they purchased the property and there are disputes between the petitioner and respondent No.5 with regard to settlement of accounts. It is also stated that several cases registered against each other and the same are pending. It is further stated that the petitioner has instituted a suit vide O.S.No.124 of 2014 on the file of VI Additional District Judge, at Mahabubabad, for recovery of amount and the same was decreed vide judgment dated 17.06.2016 in favour of the petitioner. It is also stated that seeking enforcement of the said decree, he filed Execution Petition vide E.P.No.740 of 2016 and pending adjudication of the same, at the instance of the elders, he has not-pressed the E.P. However, the disputes are not resolved, which necessitated the petitioner to take steps in pursuance of the decree. It is further case of the petitioner that in pursuance of the settlement, disputes arose and the contesting respondent No.5 has lodged a complaint and on the ground that there is breach of law and order problem over the lands which is subject matter of O.S.No.124 of 2014, the Sub-Inspector of Police, Kesamudram, submitted a report on the file of the Executive Magistrate. Acting on the said report, the respondent No.3-Executive Magistrate has issued the impugned proceedings dated 12.07.2022 under 145(5) of Cr.P.C .

4. The petitioner, who appeared as party-in-person has submitted that since he has instituted a suit and the same was decreed in his favour and the matter is pending for execution, the respondent No.3 has no power to initiate proceedings under Section 145 (5) of Cr.P.C and only the Civil Court has power to grant appropriate relief in favour of the either of the parties.

5. Sri Jelli Kanakaiah, learned Senior Counsel appearing for respondent No.5 has vehemently contended that since there is a law and order problem and the property which is subject matter of the suit has not been identified and as the petitioner is making efforts to dispossess the respondent No.5 from the schedule property, the respondent No.5 has filed a complaint on the file of Kesamudram Police. In pursuance of the said complaint, the Sub-Inspector of Police, Kesamudram Police Station, has submitted a report to the respondent No.3- Executive Magistrate and basing on which, the respondent No.3 has issued impugned proceedings. The learned Senior Counsel submitted that the respondent No.3 has rightly issued the impugned proceedings and the same does not suffer from any illegality or infirmities warranting interference by this Court under Article 226 of the Constitution of India and ultimately prayed to dismiss the writ petition.

6. Since both parties are claiming right, title and possession over the subject property and as there is a possibility of breach of peace if the possession of the subject property is handed over to either of the parties, this Court is of the view that ends of justice would be met if respondent No.3 is directed to conduct a detailed enquiry, as early as possible, strictly, following the pr