BASUDEB HALDER v. ASHOKE HALDER — 1985 DIGILAW 258 (CAL)

SAKUMAR CHAKRAVATY, J. ( 1 ) BY this revisional application under sections 40 I and 432 of the Code of Criminal Procedure the petitioners have challenged the order dated 24. 485 passed by the learned Executive Magistrate, Bongaon, in Case No. M 175 of 1985 under sections 145 and 146 of the Code of Criminal Procedure and has prayed for setting aside the said order for dropping the proceeding itself. The facts leading to the aforesaid proceedings under section 145 Cr. P. C. are as follows: ( 2 ) THE mother of the opposite party let out the disputed two rooms contained in a tin shed and the adjacent vacant land to the petitioner No. 1 at the monthly rental of Rs. 12/- and the petitioner No. 1 is in possession of the said property. Petitioner Nos. 1 and 2 as partners who deal in ice business have their ice-store there. The owner landlord threatened to disturb the possession of the petitioners in the suit property with the help of the police. The petitioners moved the High Court under Article 226 of the Constitution of India. The High Court passed the order for maintaining the status quo regarding the disputed property and ultimately discharged the Rule by directing the petitioners to approach the civil court fur redress. The owner landlord then brought the Title Suit No. 27 of 1985 in the Court of the Sub-divisional Munsif, Bongaon, for permanent injunction restraining the petitioners from entering into the disputed property and for other reliofs. The owner landlord filed also a petition for temporary injunction and obtained the temporary injunction. The petitioners filed the Misc. Appeal No. 221 of 1985 against the order of the learned Munsif granting temporary injunction and that misc. appeal is pending in the Court of the learned District Judge. The petitioner No. 1 has however alleged that he is in actual possession of the disputed property. The opposite party No. 1 made a complaint before the local police station on 12. 4. 85 alleging that on the said date when he went to see his godown in the disputed property, the petitioners accompanied by others tried to assault and that there was the apprehension of severe breach of the peace. The opposite party No. 1 made a complaint before the local police station on 12. 4. 85 alleging that on the said date when he went to see his godown in the disputed property, the petitioners accompanied by others tried to assault and that there was the apprehension of severe breach of the peace. The Officer-in-Charge of the said police station submitted a report before the learned Executive Magistrate alleging that the dispute over the suit property was likely to cause breach of the peace and to prevent the loss of life the disputed property should be attached and given in possession of the Receiver to be appointed by the learned Executive Magistrate. ( 3 ) THE learned Executive Magistrate drew up the preliminary order under section 145 (1) of the Code of Criminal Procedure the considering the emergency, although the certified copy of the relevant order of the learned Executive Magistrate shows the word urgency, passed the order under section 146 (1) of the Code of Criminal Procedure attaching the dispute property and appointing the Officer-in-Charge of the Police Station, Bongaon, as Receiver of the said attached property by the impugned order. Being aggrieved by such order, the petitioners have filed this revisional application for the relief as already stated. Mr. Balai Chandra Ray appearing for the petitioners has first of all submitted that in view of the prudence of the Title Suit No. 27 of 1985 over the dispute regarding the possession in the disputed property, a parallel proceeding under section 145 Cr. P. C. over the disputed of possession in respect of the self same property cannot lie and in support of his such submission he has relied on the decision in the case of Ram, Sumer Pun Mahant v. The State of A. P. and others. Mr. Ray's next submission is that the impugned order of the learned Executive Magistrate does not disclose upon what particulars or objects and under what circumstances he considered the case to be one of emergency so that he could pass the order attaching the disputed property and appointing the Receiver under section 146 Cr. P. C. and accordingly the impugned order is illegal. Mr. Ray has relied on the decision in 1978 Cr. L. J. 671 and 1985 Cr. L. J. 2. Mr. P. C. and accordingly the impugned order is illegal. Mr. Ray has relied on the decision in 1978 Cr. L. J. 671 and 1985 Cr. L. J. 2. Mr. Dilip Kumar Dutt appearing on behalf of the opposite party No. 1 has submitted that the decision in A. I. R. 1985 S. C. 472 is not applicable in the facts and circumstances of the present case and that the principle as laid down in 1978 Cr1. L. J. 671 and 1985 Cr1. L. J. 2 has been followed by the learned Executive Magistrate while passing the order under sections 145 (1) and 146 (1) and (2) Cr. P. C. after being satisfied with report of the police officer. Mr. Tapas Midhya appearing for the State has supported the submission of Mr. Dutt. ( 4 ) IN the case reported in A. I. R. 1985 S. C. 472 it was found that in respect of the very property which was the subject matter of the dispute under the proceeding under section 145 Cr. P. C. , there was a suit for possession and injunction being Title Suit No. 87 of 1975 filed in the Court of the learned Civil Judge Ballia wherein the question of title was gone into and by judgment dated February 28, 1981 the said suit was dismissed and the appeal against that judgment and decree of dismissal was pending before the appellate court. The Supreme Court b the aforesaid decision held 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 if 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. Mr. Dutt appearing for the opposite party No. 1 submits that the decision in A. I. R. 1985 S. C. 472 is not applicable in the present case because in the Title Suit No. 27 of 1985 over the disputed property, the question of possession involved has not been adjudicated but such question of possession was adjudicated by the trial court in Title Suit No. 87 of 1975, although the appeal is pending against the decision of the trial court. ( 5 ) I cannot accept such submission of Mr. Dutt as tenable. The above-quoted observation of the Supreme Court in A. I. R. 1985 S. C. 472 goes to show that the initiation of the parallel proceeding under section 145 of the Code over the dispute of the immovable property wherein the question of possession is involved, is prohibited when a civil litigation is pending for such property wherein the question of possession is involved irrespective of the fact whether the question of possession was once adjudicated by trial court while decreeing or dismissing the suit, if appeal against such decree or dismissal is admitted and remains pending. A suit or civil litigation remains pending even after the decree or dismissal of the suit or the civil litigation by the trial court, if that decree or dismissal is appealed against and the appeal remains pending. The question of possession in the subject- matter of that suit or civil litigation, even if adjudicated by the trial court, cannot be paid to have been finally adjudicated till the appeal is disposed of. I, therefore, find that the decision in A. I. R. 1985 S. C. 472 with all its force applies in the present case when it bas been found that a parallel criminal proceeding under section 145 of the Code of. Criminal Procedure has been stated over the dispute of the property wherein the question of possession is involved although the Title Suit No. 27 of 1985 is pending for such property wherein the question of posses ion is involved and under adjudication be-cause of the fact that appeal in the title suit has remained pending. Accordingly I am obliged to accept the argument of Mr. Ray, learned counsel for the petitioners as quite tenable. So, placing reliance on the decision in A. I. R. 1985 S. C. 472 I hold that the initiation of the parallel proceeding under section 145 Cr. P. C. over selfsame property when the Title Suit No. 27 of 1985 is pending, is unjustified and illegal and accordingly it must be quashed. In view of my above finding the other point in the submission of Mr. Ray does not require any consideration in the matter of disposal of this revisional application. But I like to record my observation and finding over that point also. In view of my above finding the other point in the submission of Mr. Ray does not require any consideration in the matter of disposal of this revisional application. But I like to record my observation and finding over that point also. ( 6 ) THE principle of law as enunciated in the case of Amrit Singh and others v. Gyandeo Sharma and another and also in the case of Girwar Dan and others v. Ram Prasad is undisiuted. It has been held in 1978 Cr. L. I. 671 as follows: In the order to be passed by the Magistrate he must explain the circumstances why he thinks to be a case of emergency, so that the superior Court may judge whether Magistrate has really applied his mind to the facts or not whether his satisfaction of the case emergency is judicial and objective one. In absence of this, the order of attachment on the ground of emergency cannot be sustained. The relevant portion of the decision in 1985 Cri. L. J. 2 is also quoted herein below: However, the order under section 146 (1) may not be passed in a mere mechanical manner without applying the mind regarding emergency. It must be clearly borne out from the order of the Magistrate, even if he passes a composite order that he was satisfied separately with regard to the conditions existing for drawing the preliminary order and for under section 146 (1) The impugned order of the learned Executive Magistrate is also the composite order under section 145 (1) and under section 140 (1) (2) Cr. P. C. It appears from the impugned order that the preliminary order under section 145 (1) of the Code of Criminal Procedure has been passed by the learned Executive Magistrate after being satisfied from the report of the police officer that a dispute likely to cause a breach of the peace exists concerning the disputed property. A copy of the report of the police officer which has been produced before me shows the likelihood to the serious breach of peace over the disputed property which may result in loss of life. So I find no illegality in the preliminary order under section 145 (1) Cr. P. C. As regards the order under section 146 (J) Cr. A copy of the report of the police officer which has been produced before me shows the likelihood to the serious breach of peace over the disputed property which may result in loss of life. So I find no illegality in the preliminary order under section 145 (1) Cr. P. C. As regards the order under section 146 (J) Cr. P. C. , the relevant portion in the impugned order is however very cryptic and has not explained the circumstances why the learned Magistrate considers it to be a case of emergency. The relevant portion of the impugned order is quoted hereunder: and considering urgency to prevent from serious breach of peace, the suit land is attached under section 146 (1) Cr. P. C. and 0/c, Bongaon P. S. is appointed as receiver of the suit land under section 146 (2) Cr. P. C. ' Mr. Dutt appearing on behalf of the opposite party No. 1 has submitted that the word urgency in the order should be read as emergency. Even if I do so, the relevant portion of the order under section 146 (1) Cr. P. C. does not say under what circumstances the learned Executive Magistrate has considered it to be a case of emergency. In the relevant portion of the order the report of the police officer has not been referred to, although it was referred to while passing the preliminary order under section 145 (1) Cr. P. C. It appears that the learned Executive Magistrate has not followed the principle of law as enunciated in 1978 Cri. L. J. 671 and 1985 Cri. L. J. 2 while passing the order under section 146 (1) and (2 ). ( 7 ) I, therefore, find that the order under section 146 (1) and (2) Cr. P. C. is illegal and it deserves to be set aside. However, as the proceeding under section 145 (1) Cr. P. C. is going to be q slashed being found to be illegal, no further order for setting aside the order under section 146 (1) and (2) Cr. P. C. is necessary. ( 8 ) THE revisional application is, therefore, allowed. The criminal proceeding under section - 145 (1) Cr. P. C. started by the impugned order of the learned Executive Magistrate is quashed. Consequently the order under section 147 (1) and (2) Cr. P. C. in the impugned order stands vacated. P. C. is necessary. ( 8 ) THE revisional application is, therefore, allowed. The criminal proceeding under section - 145 (1) Cr. P. C. started by the impugned order of the learned Executive Magistrate is quashed. Consequently the order under section 147 (1) and (2) Cr. P. C. in the impugned order stands vacated. Revisional application allowed.