Kalap Din v. State — 1970 DIGILAW 200 (ALL)

JUDGMENT J.M.L. Sinha, J. - These two references and the three revisions arise out of cases u/s 145, Code of Criminal Procedure and raise almost identical questions for consideration. In Cr. Ref. No. 509 of 1968, the facts are as follows: S.I. Police Station Chilhia submitted a report dated 18-11-1967, that a dispute likely to cause a breach of peace existed between two sets of persons named therein. On the basis of that report, a preliminary order u/s 145(1), Code of Criminal Procedure was passed by the Magistrate directing the parties concerned to attend the court on 18-12-1967, to put in written statement of their respective claims and to put in such documents in evidence as they may rely upon. Both the sets appeared before the Magistrate, filed their written statements and affidavits. The Magistrate, being unable to arrive at a conclusion on the point of possession, made a reference to the civil court vide his order dated 6-2-1968. Against that order, one set of persons, viz. Kalap Deen, Pashupati Nath and Ram Lakhan, went up in revision before the Sessions Judge and the main ground taken in the revision was that a revenue case u/s 229 of UP ZA and LR Act was pending in the court of J.O., Naugarh and in that view of the matter, the proceedings u/s 145, Code of Criminal Procedure should have been dropped. The Addl. Sessions Judge placing reliance on the case Sohan Lal v. State 1967 AWR 550 held that since a revenue suit was pending between the parties, resort should not have been made to proceedings u/s 145, Code of Criminal Procedure. He, therefore, made a reference to this Court for the proceedings u/s 145, Code of Criminal Procedure being quashed. The criminal reference came up for decision before a learned Single Judge of this Court. He was of the view that there was some conflict in the various decisions and consequently, directed that the papers be laid before the Hon'ble the Chief Justice for constituting a larger Bench for decision of the case. The reference has, accordingly, been sent to us for disposal. 2. In Cr. Revision No. 1164 of 1968, the facts are as follows: Mahadeo and others filed an application along with an affidavit before S.D.M., Naraini, district Banda, stating that there was an apprehension of breach of peace in respect of possession over plot No. 9522. The reference has, accordingly, been sent to us for disposal. 2. In Cr. Revision No. 1164 of 1968, the facts are as follows: Mahadeo and others filed an application along with an affidavit before S.D.M., Naraini, district Banda, stating that there was an apprehension of breach of peace in respect of possession over plot No. 9522. A preliminary order was passed on the basis of this application by the learned SDM on 8-3-1968. Raghubir, who was opposite party in the application, filed an objection before the learned SDM on 13-5-1968 contending that a regular suit u/s 229 of the UP ZA and LR Act was pending in the court of Assistant Collector since before the filing of the application u/s 145, Code of Criminal Procedure and the proceedings u/s 145, Code of Criminal Procedure should, therefore, be stayed. This application was rejected by the learned SDM the same day. Raghubir then filed a revision before the Sessions Judge. The revision was rejected by the Addl. Sessions Judge, vide his order dated 15-6-1968. Against that decision, Raghubir came in revision before this Court and by an order passed by Hon'ble the Chief Justice, it was directed that this revision may also be decided by the Bench together with Cr. Reference No. 509 of 1968. 3. The facts in Cr. Revision No. 2390 of 1968 are as follows: On a report submitted by the police, proceedings u/s 145, Code of Criminal Procedure were initiated by a Magistrate 1st Class, Dehradun. One of the opposite parties moved an application before the Magistrate that since a civil suit relating to the same land was pending, the proceedings u/s 145, Code of Criminal Procedure be dropped. An express reference was made in the application to the case Sohan Lal and Anr. v. State (supra). The application was rejected by the Magistrate. A revision was filed before the Sessions Judge, Dehradun, which revision also ended in dismissal. Uma Shanker then came up in revision before this Hon'ble Court. This revision has been admitted and has been sent to us for disposal. 4. The facts in Cr. Reference No. 555 of 1968 are as follows: On the report of S.O. Vindhayachal dated 22-3-1968, proceedings u/s 145 Code of Criminal Procedure were initiated by SDM, Sadar, Mirzapur. Uma Shanker then came up in revision before this Hon'ble Court. This revision has been admitted and has been sent to us for disposal. 4. The facts in Cr. Reference No. 555 of 1968 are as follows: On the report of S.O. Vindhayachal dated 22-3-1968, proceedings u/s 145 Code of Criminal Procedure were initiated by SDM, Sadar, Mirzapur. During the pendency of the case, one of the parties, inter alia, filed certified copy of a judgment of the Settlement Officer (Consolidation). The learned Magistrate placing reliance on the judgment of the Settlement Officer (Consolidation) passed an order in favour of the party in whose favour the judgment of the Settlement Officer. (Consolidation) stood and restrained the other party from interfering in the peaceful possession of that party. Against the order of the SDM, the aggrieved party filed a revision before the Sessions Judge and the Sessions Judge agreeing with the contentions raised before him referred the case to this Court with the recommendation that the order passed by the learned Magistrate be set aside and the learned Magistrate be directed to record a finding u/s 145(5), Code of Criminal Procedure on the question of the existence of the breach -of peace. The reference came up for consideration before a learned Single Judge of this Court who directed that in view of there being conflicting authorities, the papers may be laid before the Hon'ble the Chief Justice for constituting a larger Bench to decide the reference. The case has, accordingly, been referred to us for disposal. 5. In Cr. Revision No. 1315 of 1969, the facts are as follows: An application u/s 145, Code of Criminal Procedure was moved by one Ahsan Beg in the court of SDM, Budhana. The application was sent to police for report and since the police confirmed that apprehension of breach of peace existed, proceedings u/s 145 Code of Criminal Procedure were initiated. One of the opposite parties appearing before the learned SDM raised a plea that the matter was subjudice in a revenue case pending in the court of J.O. Sadar and consequently, the proceedings u/s 145, Code of Criminal Procedure cannot continue. Reliance was placed in support of this contention on the case of Sohan Lal and Anr. v. State of UP (supra). 6. Reliance was placed in support of this contention on the case of Sohan Lal and Anr. v. State of UP (supra). 6. In view, however, of another decision of this Court referred to him, the learned Magistrate rejected that application, Lal Chand went up in revision before the Sessions Judge and the revision also ended in dismissal. He then filed a revision before this Court which has been connected with Criminal Reference No. 509 of 1968 and has been sent to us for disposal. 7. From the facts of all the five cases, stated above, it will appear that two common points arise for decision: (1) Whether proceedings u/s 145, Code of Criminal Procedure can be initiated or continued when a civil suit between the same parties and relating to the same property is pending in a court of competent jurisdiction? (2) When the rights relating to the property forming the subject matter of the proceedings u/s 145, Code of Criminal Procedure have been adjudicated upon by a court of competent jurisdiction, whether the decision of that court is binding on the Magistrate and should the Magistrate drop the proceedings to give effect to that decision or he should proceed to conclude the proceedings u/s 145, Code of Criminal Procedure in accordance with the procedure contained therein? Point No. 1. 8. A perusal of Section 145 Code of Criminal Procedure would show that whenever a Magistrate is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, it is obligatory on his part to make an order Under Sub-section (1) of Section 145 Code of Criminal Procedure. The words used by the Legislature in Section 145, Sub-section (1) are: ...he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims. 9. 9. Sub-section (4) of Section 145 makes it obligatory on the Magistrate to peruse the statements, documents and affidavits, if any, filed by the parties and to decide, if possible, the question whether any and which of the parties was, at the date of the order Under Sub-section (1) of Section 145 Code of Criminal Procedure, in possession. 10. If the Magistrate is able to come to a conclusion on the point of possession by means of the documents and affidavits, he has to record an order in terms of Sub-section (6) of Section 145 Code of Criminal Procedure. In case he is not able to decide as to which of the parties before him was in possession on the date of the preliminary order he has to make a reference to the civil court u/s 146 Code of Criminal Procedure. 11. Now once a Magistrate is satisfied that apprehension of a breach of the peace exists with regard to any immovable property within his jurisdiction he has no option but to pass an order Under Sub-section (1) of Section 145 Code of Criminal Procedure. The Magistrate, on the language contained in Section 145 Code of Criminal Procedure, cannot take into consideration any other circumstance like pendency of a civil suit. In other words, even if a civil suit is pending with regard to a property and the Magistrate concerned receives a report affording satisfaction that an apprehension of a breach of the peace exists over that property between two parties, it is his duty to take proceedings u/s 145 Code of Criminal Procedure and the pendency of the civil suit can have no bearing on that duty which the Magistrate has to discharge under the mandatory provisions contained in Section 145 Code of Criminal Procedure. 12. It was argued before us that the word "shall" does not always carry the meaning ordinarily assigned to that word and that it has to be interpreted in the context in which it is used. We have no quarrel with that proposition. The point, however, remains that in Section 145 Code of Criminal Procedure the word "shall" has been used in the context of apprehension of a breach of the peace. We have no quarrel with that proposition. The point, however, remains that in Section 145 Code of Criminal Procedure the word "shall" has been used in the context of apprehension of a breach of the peace. We have, therefore, no doubt that the word "shall" having been used in Sub-section (1) of Section 145 Code of Criminal Procedure in the context of an apprehension of a breach of the peace, the provisions of Section 145 are not directory but mandatory. 13. Reference was made before us to the case of Sri Karori Mal v. Virendra Singh 1964 AWR 46 in which it has been held by a learned single Judge of this Court that: In case the civil court had taken cognizance of the civil suit before the Magistrate was moved or the Munsif had passed the interim injunction before the Magistrate took cognizance u/s 145 Code of Criminal Procedure, it would be proper for the Magistrate to drop the proceedings u/s 145 Code of Criminal Procedure, of course, with regard to the property in dispute in the civil court and to take action u/s 107/117 Code of Criminal Procedure against the party disregarding the Munsif's order. 14. Another case to which reference can be made is Malkappa v. Padamanna AIR 1959 Mys 122. The learned Single Judge deciding that case held that: If the criminal courts should start parallel proceedings in respect of a matter which is pending before a Civil court, I have no doubt that it will have the effect of undermining respect for the authority of the civil Courts with the result that the very objective of Section 145 will be defeated. This is not saying that the Magistrate cannot proceed u/s 107 to bind over parties who, it is apprehended, might commit some offence or commit breach of the peace. Indeed that section is more proper because it is exclusively a matter for a Magistrate to deal with, whereas Section 145 impinges upon the authority of civil courts. When, therefore, there is a choice between Section 145 and Section 107 before a Magistrate by reason of the pendency of civil litigation, it seems to me perfectly obvious that he must choose Section 107 and not Section 145. 15. The point, however, stands concluded by a Division Bench decision of this Court in Mst. Hosnaki and Ors. v. State 1955 AWR 654 . 15. The point, however, stands concluded by a Division Bench decision of this Court in Mst. Hosnaki and Ors. v. State 1955 AWR 654 . After taking into consideration a number of decisions of the various High Courts and the language contained in Section 145, Code of Criminal Procedure this Court held: For a Magistrate to have jurisdiction to proceed u/s 145 there must exist a dispute likely to cause a breach of the peace. He is only concerned with the existence of a dispute; he is not concerned at all with the question how it arose, which party is on the aggressive or unreasonable, whether the dispute has been decided remotely or even recently by a court of competent jurisdiction or whether an alternative remedy is open to the party that seeks his assistance. The law has not made his assumption of jurisdiction dependent on any of these matters. The use of the word "shall" in Sub-section (1) makes it obligatory upon him to assume jurisdiction on being satisfied that a dispute likely to cause a breach of the peace exists. Neither is any other fact required to exist before he can assume jurisdiction, nor is his jurisdiction barred by the existence of any -fact. (The underline--herein in italics--is by us). 16. Another case in which a similar view was taken in Chairman, Municipal Board, Bhadra v. The State ILR (1961) 11 Raj, 1180. In this case proceedings u/s 145 Code of Criminal Procedure were initiated despite the fact that a civil suit had been instituted and a temporary injunction had also been issued by the civil court. The Addl. Sessions Judge made a reference to the High Court for quashing the order pissed u/s 145 Code of Criminal Procedure. It was held that: Tae next ground on which the Addl. Sessions Judge has made the reference is that the Munsif-Magistrate, Bhadra having already passed an injunction order in favour of the Mahila Kendra in a civil suit, instituted for the purpose and having directed removal of wooden stalls from the Chabutras the Magistrate should have dismissed the application u/s 145 of the Code of Criminal Procedure. The learned Judge appears to ignore the fact that in-spite of the order of the civil court, there could still be an apprehension of breach of the peace. The learned Judge appears to ignore the fact that in-spite of the order of the civil court, there could still be an apprehension of breach of the peace. In such a case, it is the duty of the Magistrate to take preventive action u/s 145 of the Code; and then if necessary to proceed against the party seeking to disturb lawful possession and commit breach of the peace u/s 107 of the Code. Further it was held: Therefore, there is nothing to prevent the Magistrate from taking action u/s 145 of the Code, even where a civil suit is pending between the parties in respect of the same subject-matter. 17. Yet another case on the point is Tikuda v. The State ILR (1961) 11 Raj. 657 FB. The Full Bench posed the following questions for consideration: Now the first question which arose for determination by this Court is, whether in a case where a dispute about a certain immovable property is pending before a revenue court, if an application u/s 145, Code of Criminal Procedure, is presented by one of the parties before a Magistrate, he should not call upon the parties to file their written statements or affidavits in support of their respective possession over the disputed property and whether he should not decide the question as to which of them was in possession of the disputed property on the date of the preliminary order.... The question was answered by the Full Bench thus: ...If a dispute about certain immovable property is pending before a revenue or a civil court and if one of the parties to that suit moves a Magistrate to take proceedings u/s 145 of Code of Criminal Procedure about the same immovable property which is involved in the suit, the Magistrate should not lightly proceed in the matter. He should weigh and answer whether there is a real apprehension of the breach of peace and even if there is such an apprehension, whether the same cannot be averted by a proceeding u/s 107 of Code of Criminal Procedure.... This does not, however, mean that the jurisdiction of the Magistrate to proceed u/s 145 of Code of Criminal Procedure is ousted simply because a suit about the same immovable property is already pending in a revenue or civil court. This does not, however, mean that the jurisdiction of the Magistrate to proceed u/s 145 of Code of Criminal Procedure is ousted simply because a suit about the same immovable property is already pending in a revenue or civil court. What we only mean to say is, that in such cases the Magistrate must proceed with care and caution, after ascertaining full facts from the party which moves the application u/s 145 of Code of Criminal Procedure. The Court then took into consideration a case in which the Magistrate may not be aware of the pendency of the civil suit till he passed the preliminary order u/s 145, Sub-section (1), Code of Criminal Procedure. After making a reference to the various sub-clauses of Section 145 Code of Criminal Procedure it was observed: It is thus crystal clear from the provisions of Sub-section (4), that after the Magistrate has drawn up the preliminary order, it is his bounden duty to peruse the written statements of both the parties and also the affidavit and other evidence which has come on the record. He cannot proceed u/s 145(1) Code of Criminal Procedure, unless he is of opinion that none of the parties was in possession of the disputed property on the date of the preliminary order or unless he is unable to decide as to which of them was in such possession of the subject of dispute on the date of the preliminary order. The Full Bench, it will appear, has ruled-- 1. That a Magistrate shall have jurisdiction in a proper case to act u/s 145, Code of Criminal Procedure even if a civil suit is pending on the date on which the application or report for initiating action u/s 145, Code of Criminal Procedure is moved. 2. That in a case where the Magistrate comes to know of the pendency of the civil suit after the order u/s 145(1), Code of Criminal Procedure is passed or in a case in which the proceedings in civil court are initiated after the order u/s 145(1) is passed, it is obligatory for the Magistrate to conclude the enquiry in accordance with Section 145(1), Code of Criminal Procedure and that the proceedings u/s 145, Code of Criminal Procedure cannot be discontinued or dropped for the reason of the civil suit. 18. 18. The same view was reiterated in the case of Jafar Husain v. State and another 1969 AWR 199 . 19. Learned Counsel for the Applicant contended that if it is held that proceedings u/s 145, Code of Criminal Procedure can be initiated or continued despite the pendency of a civil suit, it can give rise to conflicting decisions and the Division Bench decision of this Court in the case of Mst. Hosnaki v. State as well as the Full Bench decision of Rajasthan High Court in the case of Tikuda v. State need reconsideration. We have given our careful thought to the contentions raised and we fail to find any substance in them. If the civil suit is decided before the conclusion of the enquiry in proceedings u/s 145, Code of Criminal Procedure, it will be open to the successful party to produce a certified copy of the judgment of the civil court before the Magistrate and it should be expected that the Magistrate shall give due weight to the judgment while passing the final order. We should not presume that the Magistrate will totally ignore the decision of the civil court if a certified copy thereof is produced before him while passing his final orders, In case, however, the civil suit is decided after the final orders are passed in proceedings u/s 145, Code of Criminal Procedure, it is the decision of the civil court which shall prevail. Section 145, Sub-section (6) Code of Criminal Procedure itself states: If the Magistrate decides that one of the parties was or should under the second proviso to Sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law. 20. Our conclusion on point No. 1, therefore, is that if a Magistrate is satisfied that a dispute relating to immoveable property giving rise to apprehension of breach of peace exists, he can take action u/s 145, Code of Criminal Procedure even when a civil suit relating to the same property and between the same parties is pending in a court of competent jurisdiction. Point No. 2 21. Point No. 2 21. It was argued before us on one side that when the rights between the parties have been decided by a civil or revenue court of competent jurisdiction, it is not open to a Magistrate to take proceedings u/s 145, Code of Criminal Procedure in regard to the same property. It was contended that even if proceedings u/s 145, Code of Criminal Procedure have been initiated, the moment it is brought to the notice of the Magistrate that the rights have already been adjudicated upon between the parties, the Magistrate should drop the proceedings to give effect to the decision of the civil or the revenue court. 22. As opposed to the above, the centention raised on the other side is that if a Magistrate is satisfied on police report or otherwise that a dispute relating to immovable property giving rise to an apprehension of breach of peace exists, it is obligatory for him to take proceedings u/s 145, Code of Criminal Procedure. It was urged that the fact that the rights between the parties have been adjudicated upon by a civil or a revenue court of competent jurisdiction cannot prevent the Magistrate from discharging that statutory duty and once the proceedings u/s 145, Code of Criminal Procedure have been initiated by a Magistrate, the law requires that he should make enquiry in accordance with the procedure mentioned in Sub-sections (1) and (4) of Section 145, Code of Criminal Procedure to conclude as to which of the parties was in possession on the date of the preliminary order or within a period of two months prior to it. It was urged that the decision of the civil or revenue court, if filed before the Magistrate, will not be binding on him, but shall be considered only as an evidence in the case. 23. After making a reference to the language contained in Sub-section (1) of Section 145 Code of Criminal Procedure and to the case Mst. Hosnaki and Ors. 23. After making a reference to the language contained in Sub-section (1) of Section 145 Code of Criminal Procedure and to the case Mst. Hosnaki and Ors. v. State, we have already held that once a Magistrate is satisfied that a dispute giving rise to an apprehension of breach of peace exists in relation to an immovable property, it is obligatory on his part to initiate proceedings u/s 145, Code of Criminal Procedure irrespective of the fact whether any suit between the same parties and in relation to the same property is or is not pending in any civil or revenue court. That also holds good to a case where the suit is not only pending between the parties but, has actually been decided. 24. A reference in this connection can advantageously be made to the following observation made by this Court in case Mst. Hosnaki and Ors. v. State (supra): For a Magistrate to have jurisdiction to proceed u/s 145 there must exist a dispute likely to cause a breach of the peace. He is only concerned with the existence of a dispute; he is not concerned at all with the questions how it arose, which party is on the aggressive or unreasonable, whether the dispute has been decided remotely or even recently by a court of competent jurisdiction or whether an alternative remedy is open to the party that seeks his assistance. 25. The proposition that once the Magistrate is satisfied that a dispute likely to cause breach of peace exists, it is obligatory on his part to take proceedings u/s 145, Code of Criminal Procedure regardless of everything else also finds fortification from the observations made by the Supreme Court in case R.H. Bhutani v. Miss Mani J. Desai and Ors. 1969 AWR 59. The Court observed: The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute regarding an immovable property exists and that such dispute is likely to cause breach of peace. But once he is satisfied of these two conditions, the section requires him to pass a preliminary order Under Sub-section (1) and thereafter to make an enquiry Under Sub-section (6). 26. But once he is satisfied of these two conditions, the section requires him to pass a preliminary order Under Sub-section (1) and thereafter to make an enquiry Under Sub-section (6). 26. We have, therefore, no hesitation in concluding that if a Magistrate is satisfied that a dispute in relation to immoveable property giving rise to an apprehension of breach of peace exists between the parties, he should initiate proceedings u/s 145, Code of Criminal Procedure and that the existence of any decision of a civil or revenue court in favour of any of the disputants cannot bar the initiation of proceedings u/s 145, Code of Criminal Procedure. 27. Coming to the second part of the contention, namely, whether the Magistrate should drop the proceedings if it is brought, to his notice at any time in the midst of the proceedings that the dispute between the parties has been adjudicated upon by a civil or revenue court of competent jurisdiction, a mere reading of Section 145, Code of Criminal Procedure shows that this is not permissible. 28. Sub-section (1) of Section 145, Code of Criminal Procedure states that when a Magistrate is satisfied that a dispute likely to cause a breach of peace exists, he should make an order in writing requiring the parties concerned in that dispute to attend the Court and to put in written statements of their respective claims as respects the facts of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims. Sub-sections (2) and (3) of Section 145, Code of Criminal Procedure are not relevant for our purpose. Sub-sections (2) and (3) of Section 145, Code of Criminal Procedure are not relevant for our purpose. Then comes Sub-section (4) of Section 145 Code of Criminal Procedure, which reads as follows: The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and con-elude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the subject of dispute. 29. It may be noticed that the legislature has used the word 'shall'. It is, therefore, obligatory on the Magistrate, after he has passed an order Under Sub-section (1) of Section 145, Code of Criminal Procedure, to peruse the written statements and the evidence of the parties and to come to a conclusion as to which of the parties before him was in possession on the date of the preliminary order. If the Magistrate is able to decide on the point of possession, he is to proceed Under Sub-section (6) of Section 145, Code of Criminal Procedure. If he is not able to arrive at a decision on the point of possession, he has to act u/s 146, Code of Criminal Procedure. There is nothing in Section 145, Code of Criminal Procedure lending support to the contention that if it is shown to the Magistrate in the midst of the proceedings u/s 145, Code of Criminal Procedure that the right of the parties have been decided by a court of competent jurisdiction, he should drop the proceedings. 30. Reference was made before us to the case Behari Gir v. Bhubaneshwari Koer and Ors. AIR 1920 Pat 633, Abhoy Mondal and Ors. v. Bau Rai and Ors. AIR 1923 Cal. 126, Makhan Lal v. Mangal and Ors. 1942 AWR 361, Sh. Masih Uddin v. The State and Saheb Khan v. State 1956 ACR 102. 31. So far as the case of Behari Gir v. Bhubaneshwari Koer and Ors. (supra) is concerned, possession had been delivered to one of the parties Under Order XXI Rule 35, CPC by the civil court. 126, Makhan Lal v. Mangal and Ors. 1942 AWR 361, Sh. Masih Uddin v. The State and Saheb Khan v. State 1956 ACR 102. 31. So far as the case of Behari Gir v. Bhubaneshwari Koer and Ors. (supra) is concerned, possession had been delivered to one of the parties Under Order XXI Rule 35, CPC by the civil court. The Magistrate held that the possession delivered was symbolical and not physical. It was in the context of these facts that the Court said: Indeed if a Magistrate could be permitted to start proceedings u/s 145, under the circumstances which I find in this case, I cannot conceive any finality of dispute between the decree-holder and the judgment-debtors. It was further observed: The Magistrate is under the impression that the possession that was delivered to the Mahant was symbolical possession and therefore, he could still proceed u/s 145, Code of Criminal Procedure and determine actual possession. In my opinion, this is an erroneous view of law. It is conceded that possession was delivered Under Order 21, Rule 35 and where possession is delivered under that rule, it is not in my opinion, symbolical or formal possession but it is actual possession that is delivered. 32. It will thus appear that all that was sought to be impressed by the court in the above case was that once possession Under Order XXI Rule 35, CPC has been delivered to any party, it is not open to a Magistrate acting u/s 145, Code of Criminal Procedure to hold that the possession was symbolical and not physical. The court did not hold that in every case to which a decision of the civil or revenue court exists in favour of either party, the jurisdiction of the Magistrate u/s 145 Code of Criminal Procedure is barred. It will be abundantly clear from the following observations contained in the case: It is only when possession is delivered Under Order 21 Rule 36, that it is symbolical and provided that the other ingredients of Section 145, Code of Criminal Procedure, are present, the Magistrate's jurisdiction under that section can be attracted inspite of delivery of such possession. 33. Reference may be made at this very place to a later case of the same High Court Rajendra Narayan Bhanja Deo Vs. Cahudhuri Chintamani Mahapatra, AIR 1939 Patna 151 . 33. Reference may be made at this very place to a later case of the same High Court Rajendra Narayan Bhanja Deo Vs. Cahudhuri Chintamani Mahapatra, AIR 1939 Patna 151 . In this case, proceedings u/s 145, Code of Criminal Procedure were initiated despite an order of the civil court. The Sessions Judge before whom a revision was filed, was of the view that since there existed an order of the civil court, the Magistrate had no jurisdiction to start proceedings u/s 145, Code of Criminal Procedure and the Magistrate, therefore, referred the matter to the High Court with a recommendation that the order of the Magistrate u/s 145, Code of Criminal Procedure be set aside. It was observed: No doubt there are a number of decisions to this effect find there are also my own observations if some cases that once there has been a delivery of possession by the civil court the Magistrate has no jurisdiction to start a case u/s 145, Code of Criminal Procedure. This view however has not been accepted by the Full Bench of the Calcutta High Court in Agni Kumar Das v. Mantazaddin AIR 1956 Cal. 290 where the majority of the learned Judges held that the Magistrate inspite of delivery of possession by the Civil Court, has jurisdiction to start a case u/s 145 Code of Criminal Procedure and this view has been adopted in some later decisions of this Court. 34. It will thus appear that the Patna High Court is not of the view that the decision of a civil court ousts the jurisdiction of a Magistrate to act u/s 145, Code of Criminal Procedure. 35. Coming to the other case Abhoy Mondal and Ors. v. Babu Rai and Ors. (supra), it is not at all relevant to the point in issue before us. In this case, there existed the decision of a civil court in favour of one of the disputants. The Magistrate wholly ignored that order on the ground that the civil court had no jurisdiction over the land and further that the possession was symbolical. The Magistrate had thus questioned the validity of the decree. The Court held that it was not open to the Magistrate to question the validity of the decree passed by the civil court. This case can, therefore, be of no assistance. 36. The other four cases, viz. The Magistrate had thus questioned the validity of the decree. The Court held that it was not open to the Magistrate to question the validity of the decree passed by the civil court. This case can, therefore, be of no assistance. 36. The other four cases, viz. Makhan Lal v. Mangal and Ors. (supra), Sh. Masih Uddin v. The State (supra), Saheb Khan v. State (supra) are concerned, they are of Single Judge decisions. 37. Reference can more appropriately be made on this point to the Division Bench decision of this Court in case Mst. Hosnaki and Ors. v. State (supra). After taking into consideration a series of decisions of different High Courts, it was held: A decision of a competent court on a question of title, even if followed by delivery of possession to the successful party, is not conclusive evidence of the party's possession in an inquiry u/s 145(4); a Magistrate is not bound by any law to give his finding in accordance with the decision regardless of the actual evidence. If the evidence satisfies him that the other party is in actual possession, he is bound by law to declare him to be in possession despite the decision of the civil court 01 the delivery of possession by it. The admissibility of a previous judgment is governed by the provisions of the evidence Act, there is no provision which makes a judgment of a civil court conclusive. The Bench summed up its conclusion thus: My conclusions are that the jurisdiction rightly assumed by the Magistrate in the present case was not destroyed by the decision on title to the revenue court, that the judgment of the revenue court was not conclusive but only a piece of evidence to prove that the opposite party was in possession on 10-9-1953, that it was open to the Applicant to prove that the possession of the opposite party ceased after 10-9-1953, that the Magistrate was bound io give him an opportunity to produce evidence and to receive all evidence that he produced though he had discretion not to issue a process against a witness at his instance and that the order passed by the Magistrate without recording his evidence was illegal. 38. The above view was reiterated in case Ram Iqbal Pandey and Ors. v. Mahant Ram Nath Gir 1956 AWR 469 . 38. The above view was reiterated in case Ram Iqbal Pandey and Ors. v. Mahant Ram Nath Gir 1956 AWR 469 . In this case, after proceedings u/s 145, Code of Criminal Procedure had been instituted, one of the parties filed before the Magistrate a certified copy of the judgment of the revenue court. The Magistrate decided the case u/s 145, Code of Criminal Procedure on the basis of the judgment of the revenue court without applying his mind and without discussing the evidence taken by him as to which party was in possession of the disputed plots on the date of the preliminary order. It was observed: According to Sub-section (4) of Section 145, Code of Criminal Procedure it is incumbent on a Magistrate to decide for himself after considering the entire evidence on the record as to which of the parties was in possession on the date of the preliminary order and then direct the release of the attached property in favour of the party which is found in possession on that date. This sub-section does not contemplate that the Magistrate is bound by the decision of the revenue court on the question of possession and is not to decide for himself as to which party was in possession on the relevant date. No doubt, it is open to the Magistrate to take into consideration the judgment of the revenue court in deciding the question of possession, but then he has to consider that evidence along with the other evidence which has been produced in the case and then decide for himself the question of possession. There is no doubt that in the present case the learned Magistrate has not complied with the provisions of this sub-section and his order cannot therefore be maintained. 39. The proposition that once proceedings u/s 145, Code of Criminal Procedure have been initiated, it is necessary for the Magistrate to conclude the enquiry on the point of possession in accordance with Sub-sections (4) and (6) of Section 145, Code of Criminal Procedure also finds fortification from the observations made by the Supreme Court in case R.H. Bhutani v. Miss Mani J. Desai and Ors. (supra). (supra). The Supreme Court said: But once he is satisfied of those two conditions, the section requires him to pass a preliminary order Under Sub-section (1) and thereafter to make an enquiry Under Sub-section (4) and pass a final order Under Sub-section (6). 40. Therefore, on a consideration of the language contained in Section 145, Code of Criminal Procedure and the case law produced before us, we hold that the decision of a civil court does not oust the jurisdiction of a Magistrate u/s 145, Code of Criminal Procedure nor such a decision is binding on the Magistrate. It is not open to the Magistrate to drop the proceedings or to pass an order on the basis of the decision of the civil or revenue court without himself making an enquiry in accordance with Sub-section (4) to Section 145, Code of Criminal Procedure and without applying his mind to the evidence in the case. In other words, it is necessary for the Magistrate to conclude the proceedings u/s 145, Code of Criminal Procedure in accordance with the procedure contained therein. The judgment of the civil or revenue court, if produced before the Magistrate, should be considered by him only as evidence in the case. 41 In Criminal Reference No. 509 of 1967, before us, a reference has been made to this Court for proceedings being quashed on the ground that a revenue case u/s 229 of the UP ZA and LR Act was pending in the court of J.O. Navgarh. In view of our conclusions of point No. 1, formulated earlier in this judgment, the reference cannot be accepted and is, accordingly, rejected. 42. In Criminal Revision No. 1164 of 1968, before us, the contention is that the proceedings u/s 145, Code of Criminal Procedure pending before the SDM be quashed because a suit u/s 229 of UPZA and LR Act is pending between the parties. In view of our finding on point No. 1, the contention cannot be accepted. Criminal Revision No. 1164 of 1968, therefore, fails and is hereby rejected. 43. In Criminal Revision No. 2390 of 1968 before us, again, the contention is that proceedings u/s 145, Code of Criminal Procedure should have been dropped because a civil suit relating to the same land is pending between the same parties. In view of our conclusion on point No. 1, the contention cannot be accepted. 43. In Criminal Revision No. 2390 of 1968 before us, again, the contention is that proceedings u/s 145, Code of Criminal Procedure should have been dropped because a civil suit relating to the same land is pending between the same parties. In view of our conclusion on point No. 1, the contention cannot be accepted. Criminal Revision No. 2390 of 1968 also, therefore, fails and is hereby rejected. 44. In Criminal Reference No. 555 of 1968 before us the SDM, Mirzapur, passed orders in favour of one party on the basis of the judgment of the Settlement Officer, Consolidation, without applying his mind to the evidence adduced by the parties and without arriving at the independent conclusion on the point of possession. The procedure adopted by him does not find support either by the provisions contained in Section 145, Code of Criminal Procedure or by the dicta laid down in the Division Bench decision of this Court in case Mst. Hosnaki v. State (supra), with which we are in full agreement. Criminal Reference No. 555 of 1968 is, therefore, accepted. The order dated 26-8-1968, passed by SDM, Mirzapur, is set aside. Let the case be sent back to him to be decided afresh in accordance with law. 45. In Criminal Revision No. 1315 of 1969 before us, after proceedings u/s 145, Code of Criminal Procedure had been initiated, one of the parties raised a plea that a revenue suit relating to the property in dispute between the same parties was pending in the court of J.O. Sadar and consequently, the proceedings u/s 145, Code of Criminal Procedure be discontinued. The application was rejected by the learned SDM. A revision, was filed against that order which was dismissed by the Sessions Judge. In view of our conclusions stated earlier, there is no scope for any interference with the order passed by the learned Sessions Judge. Criminal Revision No. 1315 of 1969, therefore, fails and is rejected. Let the file of the case be sent back to the court concerned to enable it to proceed according to law.