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1989 DIGILAW 413 (ALL)

IBNE HASAN v. STATE OF UTTAR PRADESH

1989-05-10

PALOK BASU

body1989
PALOK BASU, J. ( 1 ) THESE two petitions under Section 482 of the Criminal Procedure Code have been filed by two respective parties leaders claiming themselves to be Mutwallis of the one and the same property which is subject matter of the dispute under Section 145 of the Criminal Procedure Code pending in the Court of Sub Divisional Magistrate, Maunath Bhanjan, Azamgarh. ( 2 ) IT appears that on 25/3/1988, the Station Officer of the said Police Station made detailed report to the Magistrate concerned intimating to him that there is imminent danger of peace concerning the possession of a mosque known as Masjid Ahreak according to Sunni sect and Masjid Rahat Ali according to Shia sect. It was reported that both parties are claiming possession not only over the mosque but also on the adjoining land The report indicated that if proceedings under Sections 145/146 of the Criminal Procedure Code are not immediately taken the two sects will use Criminal force and a serious law and order problem will arise, because Shia sect was claiming title and possession while Sunni sect was also claiming title and possession over the same mosque. Being satisfied with the police report the Magistrate drew proceedings under Section 145 of the Criminal Procedure Code and on the same day i. e. 25/3/1988, he also passed order under Section 146 (1) of the Criminal Procedure Code attaching the disputed property. ( 3 ) BOTH parties preferred separate revisions before the Sessions Judge on the ground that since each of them was in rightful possession the other party should not be permitted to get help of the police and get initiated proceedings under Section 145 of Criminal Procedure Code and divest the respective revisionist from rightful possession over the mosque. The Second Additional Sessions Judge, before whom the two revisions came for final hearing, by his order dated 3/6/1988 dismissed the revision holding that the order dated 25/3/1988 initiating proceedings under Section 145 of the Criminal Procedure Code and also passing order for attaching the disputed mosque was an interlocutory - order and revision did not lie in view of the bar created by Section 397, subsection (3) of the Criminal Procedure Code. Hence these two applications. Hence these two applications. ( 4 ) I have heard Sri L. P. Naithani at length in support of Ibne Hasans application in so far as the claim of the Shia sect is concerned and Sri S. A. , Ansari in so far as the claim set up by the Sunni sect is concerned Shri Harihar Prasad Tripathi appeared for the State. ( 5 ) A factual controversy urged by both sides is as to whether on the given facts of the present case proceedings under Section 145 of Criminal Procedure Code should at all have commenced. ( 6 ) THE other limb of the argument connected with the said point is that admittedly the sunni sect has already approached the court constituted under the relevant Waqf Act with the relief that they be declared to be in rightful possession of the mosque and in the said reference an injunction order has been passed on 1/12/1988. The injunction order has been filed as Annexure - 19 to the counter affidavit in criminal Misc. Application No 8792/1988. This reference was made admittedly in the month of Dec. 1988 and on 1/12/1988 the injunction order was passed Translate into English, the operative portion may read some what as under: The respondents are restrained till 15/1/1989 from interfering with the management and maintenance of the property in dispute either through himself or through his agents or his supporters or friends. Admittedly, the said proceedings are pending and some date has been fixed in the next month. ( 7 ) THE attention of the Court was drawn by Sri Naithani to the case reported in Ram Sumer Purl Mahant v. State of U. P. It was held in the said case. Admittedly, the said proceedings are pending and some date has been fixed in the next month. ( 7 ) THE attention of the Court was drawn by Sri Naithani to the case reported in Ram Sumer Purl Mahant v. State of U. P. It was held in the said case. There is 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 parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil Court and parties are in a position to approach tile Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. True it is that the Hon. Supreme Court has depicted the continuance of parallel proceedings but equally true is the fact that the said decision was considered by Their Lordships in the case of Jhunamal2 while explaining Ram Sumers case (supra), it has been observed: We fail to understand how the High Court in this case took advantage of the decision of this Court in Ram Sumers case. The ration of the said decision is that a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject matter That does not mean that a concluded order under Section 145 of Criminal Procedure Code made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the Civil Court an order made under Section 145 of the Criminal Procedure Code deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to the decision of the Civil Court. The unsuccessful party therefore must get relief only in the Civil Court. He may move the Civil Court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. It confers no title to remain in possession of the disputed property. The order is subject to the decision of the Civil Court. The unsuccessful party therefore must get relief only in the Civil Court. He may move the Civil Court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The Civil Court has jurisdiction to give a finding different from that which the magistrate has reached. ( 8 ) FOR two reasons this Court is not agreeable to the arguments advanced by the learned Counsel for the parties that the mere pendency of the reference should be equated with a civil suit. Firstly the basic question to be considered by the Tribunal constituted under the relevant Waqf Act is as to which party should be registered as Mutwalli or have the right to maintain the mosque. Be that as it may the Tribunal, it is hoped will decide expeditiously the matter according to the provisions contained in the Act and the evidence produced. ( 9 ) SECONDLY in the instant case, the fact remains that the Magistrate was initially of the view that proceedings under Section 145 of the Criminal Procedure Code must at once be initiated to maintain law and order. I am not agreeable to interpret either of the two decisions of the Hon. Supreme Court as laying down that in such a serious situation the Magistrate becomes powerless and can not attach the property. In any case, the preliminary order in the instant case was passed on 25/3/1988 and the proceedings, under the Waqf Act has been initiated only in December 1988. This being the factual position, the applicability of the Supreme Court decisions is ruled out. ( 10 ) THE attention of the Court was drawn by Mr. Naithani that Ibne Hasan has been registered as Mutwalli of the property managing the mosque. This has been countered by the other side saying that Ali Ahmad has been accepted as the Mutwalli of the Committee managing the mosque. These are questions of fact which may be suitably dealt with only by the Competent Court and at this stage it is impossible for the High Court in a petition under Section 482 of the criminal Procedure Code to record any finding whatsoever on the respective claims of the respective sides. These are questions of fact which may be suitably dealt with only by the Competent Court and at this stage it is impossible for the High Court in a petition under Section 482 of the criminal Procedure Code to record any finding whatsoever on the respective claims of the respective sides. Consequently it will be open to the appropriate authorities to decide this issue if and when raised in accordance with law. No observation in the body of this Judgment will be interpreted in favour or against either of the parties claiming rightful possession over the disputed property. ( 11 ) IN view of what has been stated above, the other question which remains to be decided is whether any interference should be made by this Court with the order passed by the Magistrate under Section 146 of the Criminal Procedure Code. ( 12 ) A quick look at Chapter X of the Criminal Procedure Code may be necessary in order to examine the said argument. This Chapter is named as Maintenance of Public Order and tranquility. Part (A) deals with the unlawful assemblies; (B) Public nuisance (c) urgent cases of nuisance or apprehended danger and (D) dispute as to immoveable property. The last part in (D) contains 4 Sections, 145 to 149. For our purposes we may refer to sub-section (I) of Section 145 of the Criminal Procedure Code. (1) Wherever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of peace exists concerning any land or water or the boundaries there of within his local jurisdiction, 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, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. 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, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Similarly a reference to sub-section (1) of Section 146 also necessary:(1) If the Magistrate at any time after making the order under sub-section (1) of Section 145 considers the case to be one of emergency or if he decides that none of the parties was then in such possession as is referred to in Section 145 or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession there of. Provided that such Magistrate may withdraw the attachment at any time, if he is satisfied that there is no longer any likelihood of breach of peace with regard to the subject of dispute. That is yet another sub-section of Section 145 which is of importance and that is sub-section (1) which is quoted hereinafter for ready reference. 10. Nothing in this Section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107. Primarily, the maintenance of public order and tranquility is the responsibility of the Magistrate within whose jurisdiction the property is situated. Normally when the Magistrate is informed of a dispute likely to cause a breach of peace concerning any land or water of the boundaries there of he is duty bound to initiate proceedings under Section 145 of the Criminal Procedure Code to maintain law and order. Having initiated the proceedings once, he shall have to take recourse to sub-section (1) of Section 146 of the Criminal Procedure Code if he considers the case to be one of emergency. The Law thus enjoins a responsibility upon a Magistrate to maintain public order by passing orders under Sections 145/146 of the Criminal Procedure Code on the report of the police officer or other information satisfying him as to the need of exercising those powers. The Law thus enjoins a responsibility upon a Magistrate to maintain public order by passing orders under Sections 145/146 of the Criminal Procedure Code on the report of the police officer or other information satisfying him as to the need of exercising those powers. ( 13 ) IT is notable that sub-section (I) of Section 146 of the Criminal Procedure Code makes it abundantly clear that initiation of a proceeding -under Section 107 of the Criminal Procedure Code will not debar the Magistrate to proceed under Section 145 of the Criminal Procedure Code. The legislative intent is thus apparent that though in some cases proceedings under Sections 107/116 of the Criminal Procedure Code as envisaged through Chapter VIII may be necessary yet, if contingencies arise proceeding under Section 145 of the Criminal Procedure Code should also ensure. ( 14 ) THIS matter was examined by the Hon. Supreme Court in the case of R. M. Bhutani Miss Mani Desai It has been held therein. The satisfaction under sub-section (I) of m Section 145 is of the Magistrate. The question whether on the materials before him, he should initiate proceedings or not is therefore, in his discretion which no doubt has to be exercised in accordance with the well recognised rules of law in that behalf The High Court in the exercise of its revisional jurisdiction would not go in the question of sufficiency of material which has satisfied the Magistrate. Very relevant observation have been made in para 8 of the Judgment which in a way concludes the argument of the learned Counsel. It has been laid down. The Section requires that the Magistrate must be satisfied before initiating proceedings that a dispute regarding an immoveable 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 inquiry under sub-section (4) and pass a final order under sub-section (6 ). In two other decisions the Hon. Supreme Court considered the jurisdiction and scope of Order under Sections 145/146 of the Criminal Procedure Code. Those cases are Mathura Lals4 case and Raj Patis case. In two other decisions the Hon. Supreme Court considered the jurisdiction and scope of Order under Sections 145/146 of the Criminal Procedure Code. Those cases are Mathura Lals4 case and Raj Patis case. In Mathura Lals case (supra) Supreme Court says: In a case of emergency Magistrate may attach the property at any time after making the preliminary order under Section 145 (1) There is no express stipulation under Section 146 that the jurisdiction of the Magistrate ends with the attachment nor is it implied The only provision for stopping the proceeding and cancelling the preliminary order is to be found in Section 145 and it can be on the ground that there is no longer any dispute likely to cause a breach of peace. An emergency is the basis of attachment under the first limb of Section 146 (1) and if there is no dispute likely to cause a breach of peace. It has been held by the Honble Supreme Court in Raj Patis case (supra) as under: Once a preliminary order drawn up by the Magistrate sets out the reasons for holding that a breach of peace exists it is not necessary that the breach of peace should continue at every stage of proceeding unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of sub-section (5) of Section 145. Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under sub-section (6) of Section 145. It may be useful to refer to a Judgment of a Division Bench of this Court reported in Kalapdeen and ors. v. State of UP It has considered practically all the decisions relevant on the point till then including the case of the Supreme Court in R. H. Bhutani v. Miss Mani Desai (supra) and then formulated two questions for decision: Whether proceedings under Section 145 of the Criminal Procedure Code can be initiated or continued when a civil suit between the same parties and relating to the same property is pending in the court of a competent jurisdiction?2. When the rights relating to the property forming the subject matter of the proceedings under Section 145 of the Criminal Procedure Code have been adjudicated upon by a Court of Competent jurisdiction whether the decision of that court is binding on the Magistrate and should be Magistrate, drop the proceedings to give effect to that decision or he should proceed to conclude the proceedings under Section 145 of the Criminal Procedure Code in accordance with the procedure contained therein? The Division Bench replied to the two questions as under:Point No. 1: 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 under Section 145 of the Criminal Procedure Code even when a civil suit relating to the same property and relating to the same parties is pending in the court of competent jurisdiction. Point No. 2: Therefore, on a consideration of the language contained in Section 145 of the Criminal Procedure Code and the case law produced before us, we hold that the decision of a Civil Court does not oust the jurisdiction of a Magistrate under Section 145 of Criminal Procedure Code nor such a decision is binding oil 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 Court or revenue court without himself making an inquiry in accordance with sub-section (4) of Section 145 of the Criminal Procedure Code and without applying his mind to the evidence in the case. In other words it is necessary for the Magistrate to conclude the proceedings under Section 145 of the Criminal Procedure Code 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. It is true that neither in Ram Sumers case (supra) nor in Jhunamals case (supra) the earlier decisions of the Supreme Court in R. H. Bhutanis case Mathura Lals case and Raj Patits case were placed for consideration and the decision of our court in Kalapdeens case (supra) was also not noticed or cited. It is true that neither in Ram Sumers case (supra) nor in Jhunamals case (supra) the earlier decisions of the Supreme Court in R. H. Bhutanis case Mathura Lals case and Raj Patits case were placed for consideration and the decision of our court in Kalapdeens case (supra) was also not noticed or cited. Therefore, in some suitable case it may have to be examined as to how far the decision in Kalapdeens case can be said to hold field after the pronouncement of the law by the Supreme Court in the case of Ram Sumer and Jhunamal. However) so far as the present case is concerned, the fact remains that the mere filing of a reference under the relevant Waqf Act should not be interpreted and compared with a Civil Suit so as to oust the jurisdiction of the Magistrate to proceed under Sections 145/146 of the Criminal Procedure Code. ( 15 ) ON an examination of the material produced in these two applications it can not be said that there was no report or material before the Magistrate to pass the preliminary order and the attachment order. The Magistrate should be left to be the best Judge of the Temergency arising out of an imminent danger to peace concerning the mosque claimed by Shias and Sunnist of the locality with equal force and vehemence from both sides and conclude the proceedings under Section 145 of the Criminal Procedure Code in accordance with law. ( 16 ) IN view of what has been stated above both these applications are devoid of merits and are accordingly dismissed. The interim order dated 8/9/1988 in Ibne Hasans ease and dated 2/1/1989 in All Ahmads ease, as extended from time to time are vacated The Magistrate is directed to conclude the proceedings as expeditiously as possible keeping in view the aforesaid observations. .