RANJIT SINGH v. MOTI LAL KATIYAR — 1987 DIGILAW 1056 (ALL)

R. P. SHUKIA, J. ( 1 ) THROUGH these two connected criminal miscellaneous applications under Section 482 Cr. P. C. the prayer to quash the proceedings under Section 145 Cr. P. C. in case no. 2 of 1987 pending before the Sub. Divisional Magistrate, Bilhaur, Kanpur, Dehat, is made. I propose to decide both these petitions by this order. ( 2 ) THE facts giving rise to the aforesaid petitions are that the petitioners are the Partners of M/s Jamuna Ice and Cold Storage Mills, situate at Chaubey Pur Tahsil Bilhaur District Kanrur Dehat. That the aforesaid Cold Storage is said to have been constructed in the year 1979 and the licence was also granted in the same year. That the opp. parties no. 1 and 2 filed a civil suit, the same being number 5 of 1987 on 15/1/1987. in the Court of Civil Judge, Kanpur, Dehat for permanent injunction restraining the defendants therein i. e. the present petitioners, from dispossessing the plaintiffs i. e. the opp. parties no. land 2 in the present petitions with the allegations that the opp. parties nos. 1 and 2 were the lessee of the said lee and Cold Storage Mills since 1985 and the defendants in the said suit wanted to evict and dispossess them from the said premises. Alongwith the plaint an application under order rule 1 and 2 C. P. C, was also moved claiming interim injunction during the pendency of the suit. The learned Judge vide his order dated 19/1/1987 held that the prima-facie case as set-up by the opp. parties nos. 1 and 2 was not proved by any evidence on record and, therefore, he rejected the application for interim injunction. Thereafter, an application for review of the order dated 19/11/1987 was moved by the opp. parties nos. 1 and 2. This application was also rejected by the Judge on 22/1/1987, who recorded the findings that it was not proved by the evidence or material on record that any lease has been created in favour of the opp parties nos. 1 and 2 or that they had been actually put in possession of the said lee and Cold Storage Mills. These orders have been filed as annexure 1 and 2 to the petition. The aforesaid suit was still pending in the Court of the Civil Judge when on 23rd of February, 1987 the opp. parties nos. 1 and 2 or that they had been actually put in possession of the said lee and Cold Storage Mills. These orders have been filed as annexure 1 and 2 to the petition. The aforesaid suit was still pending in the Court of the Civil Judge when on 23rd of February, 1987 the opp. parties nos. 1 and 2 moved an application with the similar allegations in the Court of wife Sub- Divisional Magistrate, Bilhaur, District Kanpur, Dehat under Section 145 Cr. P. C. The Sub-Divisional Magistrate vide his order dated 27-2-1987 passed the preliminary order under Section 145 (1) of the Cr. P. C. and simultaneously passed an order under Section 146 (1) Cr. P. C. attaching the said Ice and Cold Storage Mills. The opp. parties after the order of attachment passed by the Subdivisional Magistrate, Bilhaur, under Section 146 (1) Cr. P. C. on 27-2-1987. Withdrew the civil suit on 5. 3. 1987. The applicants, who claim to be in peaceful possession of the said Cold Storage being aggrieved by the orders of the Sub-Divisional Magistrate Bilhaur, have preferred these petitions. ( 3 ) THE learned counsel for the applicants has contended, firstly that the order passed by the Sub- Divisional Magistrate on 27-2-1987 is illegal, arbitrary and without jurisdiction and it appears that the same has been passed without any application of mind by the Sub-Divisional Magistrate. He has also contended that the Sub-Divisional Magistrate had no jurisdiction to pass the order under Section 146 (1) Cr. P. C. simultaneously alongwith the order under Section 145 (1) Cr. P. C. The learned counsel for the applicants also contends that the proceedings under Section 145 Cr. P. C. could not be allowed to continue as the civil suit for possession was pending in the competent civil court and an order with respect to the temporary injunction was passed by the civil court. ( 4 ) AS regards the first contention of the learned counsel for the applicant, it is settled proposition of law that the existence of the ingredients necessary for passing an order under Section 145 (1) Cr. P. C. would not automatically attract the provisions of Section 146 (1) Cr. P. C. for attachment of the property. Therefore, the Magistrate must satisfy himself as to whether emergency exists in spite of the order under Section 145 (1) Cr. P. C. would not automatically attract the provisions of Section 146 (1) Cr. P. C. for attachment of the property. Therefore, the Magistrate must satisfy himself as to whether emergency exists in spite of the order under Section 145 (1) Cr. P. C. before he passes an order of attachment under Section 146 (1) Cr. P. C. The object of the attachment is to keep the subject matter of dispute in Qustodia legis so as to prevent the contesting parties from their attempt to obtain the actual physical possession of the subject of the dispute. The order of attachment made under Section 146 (1) Cr. P. C. may have the effect of depriving the rightful occupier of his possession of the disputed properties. Therefore, the said power should be exercised with due care and caution and should be limited to cases in which the likelihood of the breach of peace is so imminent as to call for immediate action to prevent the same. The language of the impugned order does not show that the Magistrate was satisfied that it was a case of emergency inspite of an order under Section 145 (1) Cr. P. C. It is evidence from the order that the Sub-Divisional Magistrate did not apply his judicial mind before passing the attachment order. This order therefore cannot be sustained. ( 5 ) AS regards the second contention of the learned counsel for the applicants, who has also placed reliance on Ram Sumer Pun Mahant v. The State of U. P. and others, wherein their Lordships of the Supreme Court have held: When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel proceeding under Section 145 of the Code would not be justified. The parallel proceeding should not be permitted to continue and in the event of the decree of a civil court the criminal court should not be allowed to invoke its jurisdiction particularly when the 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 suit. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. The learned counsel for the opp. parties has argued that the civil suit no. 5 of 1987 was no longer pending in the court of Civil Judge, Kanpur as the same was withdrawn on 5-3-1987 and the opp. parties had every right to approach the criminal court under Section 145 Cr. P. C. I am unable to agree with the contention of the learned counsel for the opp. parties. A person having title to the property or possession of the same can go to a civil court and have the question determined properly and affectively. An order under Section 145 Cr. P. C. is only a temporary settlement of the dispute with a view to prevent the apprehension of breach of peace. Even after the decision of the dispute under Section 145 Cr. P. C. the parties have to approach the competent civil court for proper and affective determination of the title and possession over the property. There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal court. In the instant case the opp. parties withdrew the civil suit only after the order of attachment was passed under Section 146 (1) Cr. P. C. Thus, the withdrawn of the civil suit after passing of the order of the attachment by the Executive Magistrate appears to be mala fide and motivated. The Magistrate may initiate and continue the proceedings under Section 145 Cr. P. C. irrespective of the pendency of the civil suit unless an interim order of the civil court with respect to the possession of the disputed property is in operation. In the present case such an order was very much in operation. The Civil Judge held that the plaintiffs i. e. the opp. parties Nos. 1 and 2 failed to prove any lease being created in their favour and they also failed to prove that they had been actually put in possession of the Cold Storage. This is evident from annexure 1 and 2 to the connected petition no. 2974 of 1987. The fact that the opp. parties nos. parties Nos. 1 and 2 failed to prove any lease being created in their favour and they also failed to prove that they had been actually put in possession of the Cold Storage. This is evident from annexure 1 and 2 to the connected petition no. 2974 of 1987. The fact that the opp. parties nos. 1 and 2 withdrew the civil suit wherein the question of possession could have been properly and affectively determined and approached the criminal court under Section 145 Cr. P. C. and obtained an order for attachment of the subject of dispute is nothing but mala fide and vexatious and cannot be allowed to continue. ( 6 ) THE learned counsel for the opp. parties has contended that an order under Section 145 (1) and 146 (1) are interlocutory orders and under Section 397 (2) Cr. P. C. a revision against these orders is barred and therefore, he contended that these orders could not be examined under Section 482 Cr. P. C. In L. Madhulimlye v. State of Maharashtra the Honble Supreme Court has held: The 1973 Code put a bar on the power of revision in order to facilitate expeditious disposal of cases. But in Section 482 it was provided that nothing in the Code, which would include Section 397 (2) also, shall be deemed w limit or affect the inherent powers of the High Court. On a harmonious construction it should be held that the bar provided in Section 397 (2) operates only in exercise of the revisional power of the High Court, meaning thereby, that the High Court will have no power of revision in relation to any interlocutory order. But in such a case, the inherent power will come into play there being no other provision in the Code for the redress of the grievances of the aggrieved party. In case the impugned order clearly brings out a situation which is an abuse of the process of the court, or for the purpose of securing the ends of justice, interference of the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power of the High Court. ( 7 ) I have already held that the proceedings under Section 145 Cr. P. C. , initiated in the court of Sub Divisional Magistrate, Bilhaur, Kanpur, Dehat, by the opp. ( 7 ) I have already held that the proceedings under Section 145 Cr. P. C. , initiated in the court of Sub Divisional Magistrate, Bilhaur, Kanpur, Dehat, by the opp. parties, is mala fide, vexatious and without jurisdiction in view of the fact that the civil suit where the question of possession was involved was pending in the civil court on the date when the order under Sections 145 (1) and 146 (1) Cr. P. C. were passed in the aforesaid proceedings and an injunction order was very much in operation. Therefore, the aforesaid proceedings cannot be allowed to continue as it would be nothing but abuse of the process of the Court. ( 8 ) IN the result the applications succeed and they are allowed. The orders dated 27/2/1987 passed under Sections 145 (1) and 146 (1) of the Cr. P. C. by the Sub-Divisional Magistrate, Bilhaur, District Kanpur, Dehat, and the entire proceedings under Section 145 Cr. P. C. in case No 2 of 1187, Moti Lal and others v. Jaswant Singh and others, P. S. Chaubey Pur, District Kanpur Dehat, are hereby quashed. Application allowed .