Raisni Karsan Garva v. STATE — 1992 DIGILAW 174 (GUJ)

M. S. PARIKH, J. ( 1 ) WHAT is the extent of jurisdiction of an Executive Magistrate u/s. 145 (1) of the Code of Criminal Procedure, 1973 (for short "the Code") is the short question, that is required to be answered, in this Special Criminal Application moved u/s. 482 of the Code and Article 227 of the Constitution of India. ( 2 ) FOR the purpose of dealing with the question in the context of the legal position, it would be appropriate in the first instance to setout the facts. The facts are so stated in two different stages out of which second stage would be relevant stage so far as the present application is concerned. First stage of the facts : Opponent no. 2s application before the opponent no. 3 - executive Magistrate. On March 30, 1992 the opponent no. 2 Mr. Amrutlal Ratanshi Patel moved an application u/s. 145 of the Code before the learned Executive Magistrate at Nakhtrana (Kutch) in respect of petrol pump styled as "r. K. Petroleum", located near village Manjal in the local jurisdiction of the learned Executive Magistrate, praying for immediate restoration of the possession of the said petrol pump from the present applicant - Raishi karsan Garva and for obtaining an appropriate order restraining the applicant from disturbing the opponent no. 2s possession of the said petrol pump and thereby committing breach of peace. The allegations of facts made in the application, shortly stated, are: the opponent no. 2 - Amrutlal Ratanshi Patel has been carrying on business in the petrol pump in question of his ownership. The Indian Oil Corporation Limited approved retail outlet for distribution of diesel and petrol in favour of the present applicant Mr. Raishi. He had obtained required loan and installed a retail outlet near anandsar on or about 30th May, 1987. However, as he was lacking both for financial and technical know how, he has let it out to one Ashokbhai Nanji Hadia and such an agreement of lease was executed in favour of one Mr. Bharat K. Joshi, tax consultant of bhuj, Kutch. Said agreement came to be put to an end by force and the applicant Mr. Raishi got the possession of the said petrol pump from said Mr. Ashok Nanji Hadia. Thereafter the present applicant Mr. Raishi Karsan Garva contacted the present opponent no. 2 Mr. Bharat K. Joshi, tax consultant of bhuj, Kutch. Said agreement came to be put to an end by force and the applicant Mr. Raishi got the possession of the said petrol pump from said Mr. Ashok Nanji Hadia. Thereafter the present applicant Mr. Raishi Karsan Garva contacted the present opponent no. 2 Mr. Amrutlal Ratanshi Patel, the applicant of application before the Executive magistrate, for running the petrol pump in question and he in the company of aforesaid tax consultant Mr; Bharat K. Joshi tempted him to enter into a lease deed dated 30/4/1988 for a period of 15 years and obtained financial benefit The rent which was fixed therein was thereafter increased by a second writing. Relying upon the applicant Mr. Raishi karsan Garva, the opponent no. 2 started running petrol pump in question managed by himself as well as his younger brother Mr. Chandulal Ratanshi Patel and other relatives who were attending to various books of accounts, bill books, cash memos and other documents as well as affairs of the petrol pump. Rent was increased by Rs. 700/- per month as per the second agreement. ( 3 ) INSPITE of the facts alleged as above the present applicant Mr. Raishi Karsan Garva, with the assistance of some head strong persons forcibly dispossessed the opponent no. 2 by ousting his younger brother and by administering threats. It is in this fashion that the present opponent no. 2 (applicant of the main application) came to be dispossessed of the petrol pump in question by the present applicant on 5th February, 1992. The opponent no. 2 herein tried to persuade the present applicant and aforesaid tax consultant Mr. Bharat k. Joshi (opponent no. 2 in the above application) for restoration of the possession of the petrol pump in question, but in vain. Thereafter on 27th February, 1992 the present applicant Mr. Raishi administered threats to the present opponent no. 2 for leaving Kutch, resulting in apprehension of life and property in the mind of the opponent no. 2 Mr. Amrutlal Ratanshi Patel. In this fashion the present applicant had forcibly taken possession of the assets worth Rs. 1. 5 lacs to Rs. 2. 00 lacs belonging to the present opponent no. 2. Under such circumstances there was every possibility of breach of public peace being committed by the present applicant. 2 Mr. Amrutlal Ratanshi Patel. In this fashion the present applicant had forcibly taken possession of the assets worth Rs. 1. 5 lacs to Rs. 2. 00 lacs belonging to the present opponent no. 2. Under such circumstances there was every possibility of breach of public peace being committed by the present applicant. In order that should not happen and in order that the present opponent no. 2 might not be involved in some offences wrongly, the present opponent no. 2 gave application dated 5th March, 1992 to the D. S. P. Kutch. Setting out such facts and enclosing copies of the documents referred to in the application, present opponent no. 2 made prayers as aforesaid in his main application. He also moved an application on the same day before the learned Executive Magistrate for interim mandatory injunction by way of preventive measure directing restoration of possession of the petrol pump in question in his favour. ( 4 ) SECOND stage Order passed by the 3rd opponent- the learned Executive magistrate, Nakhtrana (Kutch): (1) On March 30,1992 the learned Executive Magistrate issued notice u/s. 145 of the Code to the present applicant Mr. Raishi Karsan Garva to show cause against the opponent no. 2s application and to hear the matter on 8th April, 1992 for that purpose. On March 30, 1992 he heard the learned advocate for the present opponent no. 2 Mr. Amrutlal Ratanshi Patel, relied upon the submission that the possession of the petrol pump in question was forcibly taken by the present applicant from the opponent no. 2 Mr. Amrutlal Ratanshi Patel without due process of law and against the decision of this Court rendered by M. P. Thakkar J. as he then was, and passed the impugned ex-parte interim mandatory order directing the present applicant Mr. Raishi Karsan Garva to hand over the possession of the petrol pump in question alongwith its office to the opponent no. 2 Mr. Amrutlal Ratanshi Patel (applicant of that application ). It is this order which has been complained of in this application. It is not in dispute that immediately thereafter the applicant of this application was dispossessed at about 5. 00 p. m. on the same day i. e. March 30, 1992 of the petrol pump in question and opponent no. 2 Mr. Amrutlal Ratanshi Patel was handed over the possession thereof. It is not in dispute that immediately thereafter the applicant of this application was dispossessed at about 5. 00 p. m. on the same day i. e. March 30, 1992 of the petrol pump in question and opponent no. 2 Mr. Amrutlal Ratanshi Patel was handed over the possession thereof. Immediately thereafter on March 31, 1992 the present applicant submitted an application to the learned Executive Magistrate requesting to cease the stock and further directing the present opponent no. 2 to stop the sale of the petroleum products. The learned executive Magistrate did not pass any order on that application and permitted the original applicant-opponent no. 2 herein to enjoy the possession of the petrol pump in question and to carry on business without any restriction and commission. Under the aforesaid circumstances on 1st April, 1992 present application was moved. It was placed for first order before this Court on or about 2nd April, 1992, Mr. J. G. Shah, L. A. voluntarily appeared on behalf of the opponent no. 2 at the time of passing of the first order. Following order was passed on 2nd April, 1992: mr. J. G. Shah, L. A. appears for respondent no. 2 and opposes grant of any ad-interim relief without hearing him. I have heard Mr. Shah for the petitioner about the urgency of the matter and bearing in mind that aspect the matter was adjourned to tomorrow on condition that on no count adjournment shall be granted for such 1 st hearing. " on April 3,1992 following order was passed: "heard the learned advocates appearing for the petitioner and respondent no. 2. At this initial stage, however, the matter cannot be decided on merits without hearing other respondents and, therefore, in order to secure the interest of the parties, the following ad-interim orders are passed: (A) Respondent no. 2 is directed to deposit in this court Rs. 25,000/- on or before 8/4/92 before this Court, since the respondent no. 2 is likely to earn some profit from running of the petrol pump in question. (B) Respondent no. 2 shall file an undertaking in this Court to the effect that he shall deposit in Court a sum to the extent of Rs. 1/- lac or any amount that may be fixed by this Court after hearing the matter on merit. 2 is likely to earn some profit from running of the petrol pump in question. (B) Respondent no. 2 shall file an undertaking in this Court to the effect that he shall deposit in Court a sum to the extent of Rs. 1/- lac or any amount that may be fixed by this Court after hearing the matter on merit. (C) Respondent shall maintain daily accounts and furnish a copy of the said account arising from the running of the petrol pump to the petitioner and also furnish one copy to the petitioners learned advocate. Such copy of account shall be furnished on or before 8/4/92 and that of subsequent accounts shall be furnished on 15/4/92 and 22/4/92. (D) The respondent no. 2 shall state in his undertaking to the Court that the respondent no. 2 shall not transfer or part with the possession of the petrol pump in question in any manner to anybody till further order is passed in this application, in this respect. (E) The respondent no. 2 shall file undertaking as aforesaid on or before 8/4/92. 2. Rule is made returnable on 20/4/92. Adinterim slay of the proceedings before the learned Executive Magistrate till 21/4/92. " the ad-interim relief was extended from time to time and ultimately till further orders and the matter was heard at length. ( 5 ) FROM the submissions made on behalf of the rival parties, following questions arise for consideration in this application: (1) Maintainability of the present Application u/s. 482 of the Code and Article 227 of the Constitution of India. Mr. J. G. Shah, L. A. for the opponent no. 2 submitted that the present application would not maintainable u/s. 482 of the Code and Article 227 of the Constitution of India. According to his submission, u/s. 145 (1) of the Code, the order that is required to be passed by an Executive Magistrate is a preliminary order and in the words of Mr. Shah, is an interlocutory order, which is outside the scope of any further proceedings either u/s. 401 of the Code or u/s. 482 of the Code. According to his submission if at all a criminal revision is maintainable, Sessions Judge would have jurisdiction and the High Court should not exercise its power u/s. 482 of the Code. Shah, is an interlocutory order, which is outside the scope of any further proceedings either u/s. 401 of the Code or u/s. 482 of the Code. According to his submission if at all a criminal revision is maintainable, Sessions Judge would have jurisdiction and the High Court should not exercise its power u/s. 482 of the Code. According to his submission both the explanation to Section 397 as also sub-section (2) of section 397 exclude the power of the high Court. The essence of his submission is that as there is alternative remedy available to the present applicant and as the impugned order is an interlocutory order, this Court can hardly entertain the present application u/s. 482 of the Code. In order to appreciate the submissions of Mr. Shah, provision contained in Section 397 of the Code may be reproduced:397. Calling for records to exercise powers of revision - (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation All Magistrates, whether Executive of Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. " it is the submission of Mr. Shah that as per the explanation noted above, an Executive magistrate is deemed to be inferior to Sessions Judge for the purpose of sections 397. and 398 of the Code. " it is the submission of Mr. Shah that as per the explanation noted above, an Executive magistrate is deemed to be inferior to Sessions Judge for the purpose of sections 397. and 398 of the Code. He, therefore, submitted that Sessions Judge would have jurisdiction and not this Court to entertain a revision application under the aforesaid provision even if the impugned order is treated as a final order. If it is treated as an interlocutory order, and according to Mr. Shah, it is an interlocutory order, sub-section (2) of section 397 ousts the jurisdiction both of the Sessions Judge as well as the High Court and once a remedy is ousted, no recourse can be had to section 482. The next submission is that the section 482 deals with the inherent powers of the high Court which are (1) executory in nature, (2) preventive in nature and cureable in nature. It is power saving provision and not power conferring provision. According to his submission such inherent power cannot be exercised except where a case falls under a saving of powers which are executory, preventive or curative in nature. For the purpose of dealing with how all these submissions would stand answered by a decision of the honble Supreme Court of India, it would be first necessary to set out the provision contained in S. 482 of the Code. SECTION 482 reads as under: 482. Saving of inherent powers of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In Raj Kapoor and others vs. State (Delhi Administration) and others AIR 1980 S. C. p. 258, Krishna Iyer speaking for the Bench has observed in para. 10 as under:"10. The first question is as to whether the inherent power of the High Court under section 482 stands repelled when the revisional power under sec. 397 overlaps. The opening words of section 482 contradict this contention because nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of S. 482. 397 overlaps. The opening words of section 482 contradict this contention because nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of S. 482. Even so, a general principle pervades this branch of law; when a specific provision is made easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In madhu Limayes case AIR 1978 SC 47 this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Sec. 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397 (2 ). Apparent conflict may arise in some situations between the two provisions and a happy solution :"would be to say that the bar provided in sub-section (2) of section 397 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. Then in accordance with one or the other principle enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1989 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power by the high Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. "in short, there is no total ban, on the exercise of inherent power where abuse of the process of the Court or other extra- ordinary situation excites the courts jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure or simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of. inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example. Where it is more than a purely interlocutory order and less than a final disposal. As can be seen from the discussion of legal position flowing from the plain reading of section 145 of the Code, the present case would squarely fall under the last category noted above in the aforesaid observation of the Honble Supreme Court of India. This is a case where the impugned order though styled as an interim order-preliminary order, incorporates within it a final order also, that could be passed at a later stage u/s. 145 (6) read with Section 145 (4) of the Code. In the words o Untwalia, J. quoted in same para in the aforesaid decision in the case of Raj Kapoor vs. State (supra):"the answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible. "mr. J. G. Shah, learned advocate for the second opponent- Mr. Amrutlal referred to recent decision of the Honble Supreme Court in the case of Mosst. "mr. J. G. Shah, learned advocate for the second opponent- Mr. Amrutlal referred to recent decision of the Honble Supreme Court in the case of Mosst. Simrikhia vs. Smt. Dolley Mukherjee @ Chabbi Mukherjee and another, reported in AIR 1990 S. C. 1605. Apparently the decision does not lay down a rule that a bar under Section 397 (2) of the code also provides an absolute restriction on the inherent powers of the High Court under section 482 of the Code. However in paragraph 6 it has been observed that the inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362 of the Code. In Amar Nath vs. State of Haryana and others, AIR 1977 S. C. p. 2185, also referred to by Mr. J. G. Shah, a Bench consisting of two Judges of the Honble Supreme Court held as under:"section 482 contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under S. 397 (2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers. "but then without analysing the facts in that case and without finding out whether the ratio has any application to the present case, the decision in the case of Madhu Limaye vs. State of Maharashtra, AIR 1978 S. C. p. 47 has at once got to be referred to. That is a later decision of the Bench consisting of three Judges of the Supreme Court of India in para. That is a later decision of the Bench consisting of three Judges of the Supreme Court of India in para. 10 of the citation following observations have been made while referring to Amar Naths case (supra): "as pointed out in Amar Naths case ( AIR 1977 SC 2185 ) (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub- section (2) in section 397. On the one hand, a bar has been put in the way of the High Court (as also of the sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court. " But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of Section 397 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. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the high Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of corruption Act without a sanction, then the trial of the accused will be without jurisdiction and after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The high Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the high Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible. With regard to Amar Naths case (supra) following observations appear in para 6. The present case undoubtedly falls for exercise of the power of the high Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible. With regard to Amar Naths case (supra) following observations appear in para 6. of the citation:"but on a careful consideration of the matter and on hearing learned counsels for the parties in this appeal, we thought it advisable to enunciate and reiterate the view taken by two learned Judges of this Court in Amar Naths case but in a somewhat modified and modulated form. "in Chandrasekhar Singh and ors. vs. Siya Ram Singh and ors. AIR 1979 S. C. p. 1, again a Bench consisting of three Judges while dealing with Section 146 of the Code referred to the powers of the High Court under Article 227. This decision was referred to by Mr. J. G. Shah. In fact the observations in para. 11 would provide useful guide with regard to power of this Court under Article 227 of the Constitution. The observations read:"the only other question that remains to be considered is whether an order under S. 146 (1-B) can be interfered with by the High Court in the exercise of its powers under Art. 227 of the Constitution. It is admitted that the powers conferred on the High Court under Art. 227 of the Constitution cannot in any way be curtailed by the provisions of the Criminal Procedure Code. Therefore, the powers of the High Court under Art. 227 of the Constitution can be invoked in spite of the restrictions placed under S. 146 (1-D) of the Criminal procedure Code. But the scope of interference by the High Court under Art. 227 is restricted. This Court has repeatedly held that "the power of superintendence conferred by Art. 227 is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors vide 1954 SCR 564: ( AIR 1954 SC 215 ) (Waryam Singh vs. Amar Nath ). In a later decision, 1958 SCR 1240 : ( AIR 1958 SC 398 ) (Nagendra Nath Bora vs. Commr. In a later decision, 1958 SCR 1240 : ( AIR 1958 SC 398 ) (Nagendra Nath Bora vs. Commr. of Hills division), the view was reiterated and it was held that the powers of judicial interference under Art. 227 of the Constitution are not greater than the power under Art. 226 of the Constitution, and that under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. In a recent decision AIR 1975 SC 1297 (Babhutmal raichand vs. Laxmibhai) this Court reiterated the view stated in the earlier decisions referred to and held that the power of superintendence under Art. 227 of the Constitution cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as the Court of appeal and that High Court cannot in exercise of its jurisdiction under Art. 227 convert itself into a court of appeal. "in Ram Sumer Puri Mahant vs. State of U. P. AIR 1985 S. C. p. 472. Their Lordships of the Supreme Court held that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding under S. 145 of the Code, would not be justified. In the present case the course is reverse. The opponent no. 2 herein has first initiated criminal proceeding u/s. 145 of the Code and on the same day he was successful in obtaining ex-parte order of dispossessing the applicant of the petrol pump in question. Having already dispossessed the applicant of the petrol pump in question pursuant to the impugned ex-parte order, the opponent no. 2 has taken recourse to a civil proceeding for obtaining equitable relief of injunction and now says the opponent no. 2 to let the criminal proceedings be put to an end without anything more. All that has so happened is ex- parte and without even allowing the applicant to put up his case. The facts in Ram Sumer Puri Mahant (supra) are quite different and reverse from the facts of the present case. In my opinion the decision in Ram sumer Puri Mahant (supra) would hardly have any application to the present case. All that has so happened is ex- parte and without even allowing the applicant to put up his case. The facts in Ram Sumer Puri Mahant (supra) are quite different and reverse from the facts of the present case. In my opinion the decision in Ram sumer Puri Mahant (supra) would hardly have any application to the present case. Jhunamal alias Devandas vs. State of Madhya Pradesh and others AIR 1988 SC p. 1973 provides a clear answer. The first head note reveals that it is true that in cases of dispute regarding immovable property 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. But then that does not mean a concluded order u/s. 145 of the Code, made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the civil Court. The unsuccessful party must get relief only in the civil court by property constituted suit and by proving a better right to possession. In that case the quashing by the High Court of the order passed u/s. 145 (6) of the Code, merely on the ground that the unsuccessful party had filed civil suit was held to be improper. Reference was made to the case of Ram Sumer Puri Mahant (supra ). Referring to a decision of this Court in the case of Bai Damyanti vs. Pushpaben gunvantrai Raval and ors. reported in 12 (1971) G. L. R. p. 523, Mr. J. G. Shah submitted that the powers conferred u/s. 145 of the Code on an Executive Magistrate are police powers in nature and, therefore, neither Section 482 of the Code nor Article 227 of the constitution could be invoked by the present applicant, particularly when the appropriate remedy before the civil Court was open. Even under the relevant provisions of the Code (see for example Section 397 itself) a Court of an Executive Magistrate is an inferior court, against whose orders inherent jurisdiction of this Court u/s. 482 of the Code woud undoubtedly be available in an appropriate case to an aggrieved party. Power of superintendence of this Court under Article 227 of the Constitution of India would also be available to an aggrieved party in an appropriate case. Power of superintendence of this Court under Article 227 of the Constitution of India would also be available to an aggrieved party in an appropriate case. Therefore, merely because the nature of the order under Section 145 of the Code is described to be a police order, it cannot be said that it looses its character, of a judicial or quasi judicial order required to be passed in the prescribed manner and at the prescribed stages. This can be seen from the entire scheme of section 145 dealt with by this Court in the aforesaid case of Bai damyanti (supra ). ( 6 ) IT is not in dispute that the present opponent no. 2 Mr. Amrutlal R. Patel after utilising the process u/s. 145 of the Code to his advantage in the aforesaid manner, filed r. C. S. No. 18 of 1992 in the Court of Civil Judge (Junior Division) at Nakhatrana (Kutch) and obtained an interim injunction restraining the present applicant from disturbing the opponent no. 2s possession of the petrol pump in question. That ad-interim injunction obtained by the present opponent no. 2 against the applicant herein is again granted on the basis of the principle that one may not forcibly dispossess the other of the disputed property. Now in the present application Mr. J. G. Shah, L. A. for opponent no. 2 Mr. Amrutlal R. Patel canvasses a proposition that so long as the temporary injunction issued by the civil Court is in force, the opponent no. 2s possession of the petrol pump in question should not be disturbed by setting aside the impugned order. In support of this proposition, he has placed reliance upon a decision in the case of Sajjan Singh son of jagan Nath Singh vs. Sajjan Singh Son of Bhairu Singh and anor. U. J. (S. C.) 1970 p. 75. In that case, in the first round of litigation between the parties there, a civil suit came to be compromised and Sajjan Singh son of Jagan Nath Singhs ownership of the property in question was recognised and Bhairu Singh was allowed to live as tenant for his lifetime without any right of inheritance or right to transfer the tenancy. In the second round of litigation initiated in January, 1959 by Gulab Kaur, wife of Bhairu Singh challenging the compromise in the earlier suit. In the second round of litigation initiated in January, 1959 by Gulab Kaur, wife of Bhairu Singh challenging the compromise in the earlier suit. The right and title of the Sajjan Singh son of Jagannath singh was affirmed and the suit of Gulab Kaur was dismissed finally. Thereafter on July 22, 1965, Bhairu Singh left the village after handing over the possession of the house to sajjan Singh son of Jagannath Singh and also executed a document which was on the record of the case. Then there was the third round of the litigation between the family somewhere in the year 1967. Sajjan Singh son of Bhairu Singh started proceedings under sec. 145 of the Code against Sajjan Singh son of Jagannath Singh. A preliminary order was passed by the Sub-Divisional Magistrate, who also ordered attachment of the house acting under the third proviso to sec. 145 (4) of the Code. Thereafter Sajjan Singh son of jagannath Singh applied to the Sub-Divisional Magistrate that the proceedings be dropped and pending that application he filed Civil Suit No. 50 of 1968 for a permanent injunction against Sajjan Singh son of Bhairu Singh. He also asked for a temporary injunction which was granted in his favour on the following day. He then produced the order of temporary injunction before the Sub-Divisional Magistrate and asked for the stay of the proceedings u/s. 145 of the Code. The Sub-Divisional Magistrate dismissed the application and ordered the Tehsildar, Bilara to take over the house as a receiver. In the context of such facts, the High Court held that both the orders of attachment of the house and appointment of Receiver by the Sub-Divisional Magistrate were valid and Civil Courts temporary injunction had no effect upon the proceedings before the Sub-Divisional Magistrate. The supreme Court, without setting aside the order of the High Court, directed the sub-Divisional Magistrate to consider whether the Receiver should be continued or not, but in any event, he was directed to see that the possession of Sajjan Singh son of jagannath Singh should not be disturbed so long as the temporary injunction in his favour was outstanding and pending the decision of the proceedings u/s. 145 of the Code, with a view to handing over the possession to the other side. Now look at the relevant facts of the present case: The opponent no. Now look at the relevant facts of the present case: The opponent no. 3- the learned Executive Magistrate on the same day when he issued notice u/s. 145 (1) of the Code, ordered restoration of possession which he could do u/s. 145 (6) of the Code in favour of the opponent no. 2, I fail to understand how the decision in the case of Sajjan Singh (supra) can ever be of any assistance to the opponent no. 2s cause. Mr. J. G. Shah, L. A. for opponent no. 2 referred to a Division Bench judgment of the bombay High Court in the case of G. M. T. Society vs. Bombay State reported in AIR 1954 bombay at page 202. According to his submission the applicant has to raise the question of jurisdiction before the learned Executive Magistrate in the first instance instead the applicant has rushed to this Court straightaway against the ex-parte interim order. Now before the Bombay High Court the main ground on which the order of the Government was challenged was lack of jurisdiction on the part of the Government to interfere in the appeal over the decision of the State Transport Authority. The petitioners there never raised the point as to the jurisdiction of the Government at the time when the Government heard the matter and they were quiet to permit the Government to hear the appeal preferred by the respondent no. 4 there. In the context of such facts, the Bombay High court observed as under:"but the question is whether the petitioners not having challenged the jurisdiction of the Government, this Court will give them relief by exercising its very special and discretionary jurisdiction. "and held that before a question of jurisdiction is raised on a petition, objection to jurisdiction must be taken before the Tribunal, whose order is being challenged. In the present case apparently there was no opportunity to the applicant to raise any question at all. Mr. A. D. Shah, learned advocate for the applicant herein, has in reply referred to the observations of Untwalia, J. appearing at page 261 in the case of Raj Kapoor vs. State (supra ). The observations have been reproduced hereinabove and they cover the present case so as to find that this is a case where this Court should invoke its inherent jurisdiction u/s. 482 of the Code. The observations have been reproduced hereinabove and they cover the present case so as to find that this is a case where this Court should invoke its inherent jurisdiction u/s. 482 of the Code. He also placed reliance upon a decision of this Court in the case of ashokkumar Chimanlal Modi vs. Chinubhai Nanalal Shah reported in 28 (2) G. L. R. p. 888. A learned Single Judge of this Court has inter alia held that mere filing of a civil suit would not put an end of the criminal proceedings u/s. 145 of the Code, where the criminal Court had been seized of the matter long before a civil suit is filed and a final decision on merits has not been passed by a civil Court, there has no justification either for droping the proceeding or for staying the proceeding u/s. 145 of the Code. The facts concerning the impugned order described under the second stage of facts, merely indicate the applicant herein would not have any other course open except to approach this Court u/s. 482 of the Code. The present application is tenable u/s. 482 of the code and even under Article 227 of the Constitution of India. (2) What is the extent of jurisdiction of the Executive Magistrate u/s. 145 (1) of the Code? this question is required to be answered for finding out whether the impugned order is without jurisdiction or without authority conferred by the Legislature upon the executive Magistrate under the aforesaid provision. In order to answer the question, let the provision be first reproduced: 145. Procedure where dispute concerning land or water is likely to cause breach of peace- (1) Whenever 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 the peace exists concerning any land or water of the boundaries thereof, 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. The aforesaid provision is contained under Part D dealing with disputes as to immovable property appearing in Chapter-X maintainance of public order and tranquillity. Part A deals with unlawful assemblies. Part B deals with Public nuisances and part C deals with urgent cases of nuisance or apprehended danger. On a plain reading of the aforesaid provision contained in sub- section (1) of Section 145, it clearly appears that the same does not provide for passing of any interim order directing restoration of possession, it provide for passing of an order stating the grounds of his satisfaction for passing such an order to the effect that breach of the peace exists concerning any land or water or boundaries thereof and requiring the parties to such a dispute to attend his Court (the Court of an Executive Magistrate) and to put in written statements of their respective claims regarding the fact of actual possession of the subject of dispute. In Mathurlal vs. Bhanwarlal and anor, reported in AIR 1980 S. C. p. 242 referred to by mr. A. D. Shah, learned advocate for the applicant, the Honble Supreme Court had an occasion to have a close scrutiny of the provisions contained in Sections 145 and 146 of the Code. After setting out the provisions as they appeared in 1898 Code before its amendment in 1955,1898 Code after its amendment in 1955 and 1973 Code, the Supreme court held that Sections 145 and 146 of the Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of the dispute concerning any land or water or their boundaries. Section 146 cannot be separated from section 145 and can only be read in the context of Section 145. Section 145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of an order, known to lawyers practising in the criminal Courts as a preliminary order, stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. A preliminary order is considered so basic to a proceeding under S. 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed u/s. 145 and 146. In fact, the first of the situations in which an attachment may be effected under S. 146 of the code has to be "at any time after making the order under sub-s. (1) of S. 145". While the other two situations have, necessarily, to be at the final stage of the proceeding initiated by the preliminary order. Now, the preliminary order is required to enjoin the parties not only to appear before the Magistrate on a specified date but also to put in their written statements. Subs. (3) of S. 145 prescribes the mode of service of the preliminary order on the parties. Sub/sec. (4) casts a duty on the Magistrate to persue the written statements of the parties, to receive the evidence adduced by them, to take further evidence if necessary and, if possible, to decide which of the parties was in possession on the date of the preliminary order. If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by sub-s. (6 ). It is at this stage that the provision contained in sub-sections (4) and (6) of Section 145 may be reproduced:" (4 ). If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by sub-s. (6 ). It is at this stage that the provision contained in sub-sections (4) and (6) of Section 145 may be reproduced:" (4 ). The Magistrate shall then, without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute, persue the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute: provided that, if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed, within two months next before the date on which the report of a police officer or other information was received by the magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under subsection (1 ). (6) (a) If the Magistrate decides that one of the parties was, or should under the 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, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3) it is thus clear that the order, which is a final order as contemplated by sub-section (6) of section 145 of the Code, would hardly have been passed under Section 145 (1) of the code. It is apparent that the learned Executive Magistrate has exercised jurisdiction not vested in him in passing an ex-parte order of directing interim possession in favour of the present opponent no. 2. It is apparent that the learned Executive Magistrate has exercised jurisdiction not vested in him in passing an ex-parte order of directing interim possession in favour of the present opponent no. 2. ( 7 ) THE scope of sections 145 (1) and 145 (6) came to be considered way back in the year 1959 in the case of Bhinka and ors. vs. Charan Singh reported in AIR 1959 S. C. 960. It has been held that section 145 of the Code does not confer on a Magistrate any power to make an order directing the delivery of possession to a person who is not in possession on the date of the preliminary order made by him u/s. 145 (1) of the Code. u/s. 145 (1) of the code his jurisdiction is confined only to decide whether any and which of the parties was, on the date of the preliminary order in possession of the land in dispute. The order only declares actual possession of a party on a specified date. Even in the case of any party, who has been forcibly and wrongfully dispossessed, within two months before the date of the preliminary order the Magistrate is only authorised to treat that party so dispossessed as if he had been in possession on such date. u/s. 145 (6) of the Code, the Magistrate is authorised to issue an order declaring a party to be entitled to possession of a land until evicted therefrom in due course of law. The Magistrate does not purport to decide the partys title or right to possession of land, but expressly reference that question to be decided in due course of law. "the foundation of his jurisdiction is an apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is coterminous with the passing of a decree by a civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. The effect of the orders passed by a Magistrate u/s. 145 of the Code is thus stated by way of reproduction of the observations of the Privy Council in dinomoni Chowdhrani vs. Brojo Mohini Chowdhrani, (1901) 29 Ind App. 24,33. The effect of the orders passed by a Magistrate u/s. 145 of the Code is thus stated by way of reproduction of the observations of the Privy Council in dinomoni Chowdhrani vs. Brojo Mohini Chowdhrani, (1901) 29 Ind App. 24,33. These orders are merely police orders made to prevent breaches of the peace. They decide no question of title. "the aforesaid decision of the Supreme Court came to be considered by a Division bench of this Court in the case of Bai Damyanti vs. Pushpaben (supra ). Dealing with the scope of section 145 (1) of the Code, it has been held that the Magistrate has to make a preliminary order as contemplated by Section 145 (1) of the Code in the first instance. The scheme of section 145 clearly sets out a stage or inquiry and hearing of the parties before any order or delivery of possession as contemplaed by Section 145 (6) can be passed. Dealing with the object of Section 145 the Honble Supreme Court of India in the case of R. H. Bhutani vs. Miss Man J. Desai, reported in AIR 1968 S. C. p. 1444 has ruled as under in para. 8 of the citation:"8. The object of section 145, no doubt is to prevent breach of peace and for that end to provide a speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court. The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute regarding an immvable 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-s. (1) and thereafter to make an enquiry under sub-s. (4) and pass a final order under sub-s. (6)". The scheme contained in section 145 deals with jurisdiction of an Executive Magistrate of a different type at different stages and in between the initiation of proceedings u/s. 145 (1) and passing of a final order u/s 145 (6) holding of an inquiry of the nature noted above intervenes. The scheme contained in section 145 deals with jurisdiction of an Executive Magistrate of a different type at different stages and in between the initiation of proceedings u/s. 145 (1) and passing of a final order u/s 145 (6) holding of an inquiry of the nature noted above intervenes. Passing of an order of directing possession as is contemplated u/s. 145 (6) at the intial stage and before holding of inquiry is apparently beyond the authority of the executive Magistrate and outside his jurisdiction. Bearing in mind the facts and circumstances of this case and in view of the legal position as stated above, following order should serve the ends of justice : (1) The impugned ex-parte interim mandatory order dated 30th March, 1992 passed by the respondent no. 3 - the learned Executive Magistrate, nakhtrana (Kutch) directing the present applicant Mr. Raishi Karsan Garva to hand-over the possession of the petrol pump in question alongwith its office to the opponent no. 2 Mr. Amrutlal Ratanshi patel (applicant of the original application), is hereby quashed and set aside, the consequent proceeding of execution of that order and taking over of the possession of the said petrol pump alongwith its office from the application Raishi karsan Garva and handing over of the possession thereof to the opponent no. 2 Mr. Amrutlal Ratanshi Patel are also quashed and set aside. (2) The applicant Mr. Raishi Karsan Garva is directed to file an undertaking before this Court within a week from today to the effect that upon restoration of possession to him, he shall not transfer or part with the possession of the petrol pump in question alongwith its office in any manner to anybody till the final disposal of proceedings u/s. 145 of the code before the Executive Magistrate and that he shall maintain daily accounts and shall file a statement of such daily accounts every week before the learned Executive Magistrate and shall furnish a copy thereof to the opponent no. 2 Mr. Amrutlal Ratanshi Patel. First such accounts shall be filed imediately after expiry of one week from the date on which the possession of the petrol pump in question alongwith its office is restored to him. (3) The applicant Mr. Raishi Karsan Garva is directed to furnish solvent security or a bank guarantee in the sum of Rs. 2 Mr. Amrutlal Ratanshi Patel. First such accounts shall be filed imediately after expiry of one week from the date on which the possession of the petrol pump in question alongwith its office is restored to him. (3) The applicant Mr. Raishi Karsan Garva is directed to furnish solvent security or a bank guarantee in the sum of Rs. 1 lac to the learned executive Magistrate within 10 days from today. (4) Upon the applicant filing undertaking and furnishing security or surety or bank guarantee as aforesaid, the learned Executive magistrate is directed to make necessary arrangement for peaceful restoration of posession of the petrol pump in question alongwith its office to present applicant Mr. Raishi karsan Garva from the opponent no. 2 - Mr. Amrutlal Ratanshi Patel. In case the applicant Mr. Raishi Karsan Garva fails to file undertaking and furnish security or surety or guarantee as aforesaid, the learned Executive Magistrate shall take the possession of the petrol pump and the office from the opponent no. 2 Mr. Amrutlal ratanshi Patel and hold it himself or through a Receiver on his behalf till final disposal of the proceedings before him. The learned Executive Magistrate shall then fix up a date of filing of the written statements of their respective claims regarding the fact of actual possession of the subject of dispute before him. The learned Executive Magistrate shall then follow the procedure as laid down in the rest of the provisions of Section 145 and decide the matter in accordance with law, after hearing the parties, as expeditiously as possible, but preferably within a period of 8 weeks from the date of receipt of writ of this order. Rule is made absolute accordingly. Mr. J. G. Shah, learned Advocate, for Opponent No. 2 prays for stay of the operation of the Judgment and order passed today. In order to enable his client to approach the supreme Court of India under Art 136 of the Constitution of India, the operation of the judgment and order passed today is stayed till June 30, 1992. The Office is directed to give the certified copy of the judgment to Opponent No. 2 or his learned Advocate within a week from today. The undertaking that the Opponent No. 2 has given to this Court shall continue till June 30,1992. .