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1995 DIGILAW 610 (ALL)

Lalji Chaturvedi v. State Of U. P.

1995-05-23

K.L.SHARMA

body1995
JUDGMENT K.L.Sharma (1.) CRIMINAL Misc. Application No. 551 of 1994 has been filed under Section 482 Cr.P.C. for quashing the proceedings in criminal case No. 832/IX/93 (Gajanand Chaturvedi v. Lalji Chaturvedi) under Section 145, Cr. P.C., P.S. Kotwali, district Mathura pending in the court of City Magistrate. Mathura and for interim stay of the operation of the order dated 11.10.1993 of attachment passed by the City Magistrate Mathura in the aforesaid case under Section 146 (1) of Code of CRIMINAL Procedure and for direction to the City Magistrate Mathura to hand over the possession of the disputed property to the applicant after opening its lock put on 26.10.1993. (2.) THE connected criminal miscellaneous application No. 812 of 1994 has been filed under Section 482. Cr. P.C. by Dinesh Chandra Chaturvedi respondent No. 3 of Crl. Misc. application No. 551 of 1994 relating to the same proceedings aforesaid for quashing the orders dated 24.2.1994 passed by the City Magistrate, Mathura whereby the application for adjournment of the proceedings presented by the applicant was rejected. It has also been prayed in this application that the applicant be impleaded as a party to the aforesaid proceedings and an opportunity for hearing and evidence be given and also a prayer for transfer of this case to any other court was made. The common facts leading to the present application under Section 482, Cr.P.C. are briefly state as follows : (3.) THE respondent No. 2 Gajanand Chaturvedi moved an application on 15.6.1993 before the Superintendent of Police Mathura claiming himself to be resident of house No. 643 to 647 Tulsi Chabutara Chauki Holi, P.S. Mathura and also owns Manik Bhawan 990 Satgadha. Mathura. But he apprehended that the persons mentioned in the application wanted to take forcible possession of the said property by ousting him from his peaceful possession in the absence of his father. THE City Magistrate Mathura called for a police report and the police submitted a report on 6.9.93 stating that there is an apprehension of breach of peace and the property may be sealed. THE City Magistrate asked for an additional report on certain points from the police and then the police submitted another report on 16.9.1993 stating that there is no civil case relating to the property in question pending in any civil court and that one Bharat Kumar Mathura Das Babra resident of Bombay was its owner. THE City Magistrate asked for an additional report on certain points from the police and then the police submitted another report on 16.9.1993 stating that there is no civil case relating to the property in question pending in any civil court and that one Bharat Kumar Mathura Das Babra resident of Bombay was its owner. THE City Magistrate did not take any action on either of these reports but on 11.10.1993 he passed an order of attachment under Section 146 (1) Cr.P.C. and directed the police to comply with the order of attachment latest by 28.10.1993 and by a 3rd order of the same day the City Magistrate Mathura directed the parties to appear in his Court for giving evidence. However the said proceedings are still pending. On 16.3.1994 this court passed an interim stay order of further proceedings pending before the City Magistrate Mathura and directed the police to make inventory of the articles kept inside the building in dispute but these articles will not be handed over to any party till further orders. (4.) SINCE the respondent No. 3 Dinesh Chandra Chaturvedi was not impleaded as a party to the proceedings under Section 145, Cr.P.C, he had moved an application for impleadment as well as application for transfer of the case and for adjournment of the proceedings before the City Magistrate. The applicant Lalji Chaturvedi appeared before the City Magistrate Mathura and informed that civil suit No. 1075 of 1994 Lalji Chaturvedi S/o Bharat Kumar and others v. Gajanand and others, relating to title and possession over the disputed property was pending in the Court of Munsif, Mathura and as such the proceedings under Section 145, Cr.P.C. be dropped and the order of attachment be withdrawn and the possession be handed over back to the applicant. The respondent No. 2 had also filed his objection admitting the pendency of his civil suit relating to the disputed property. However the City Magistrate Mathura did not decide the application dated 28.10.1993 filed by the applicant and several dates were fixed in the case. SINCE the application of respondent No. 3 for impleadment was rejected by the City Magistrate, he moved an application for transfer of the case before the District Magistrate and thereafter the City Magistrate did not fix any date in the case. SINCE the application of respondent No. 3 for impleadment was rejected by the City Magistrate, he moved an application for transfer of the case before the District Magistrate and thereafter the City Magistrate did not fix any date in the case. The transfer application was also not disposed of by the District Magistrate prior to the filing of this application under Section 482, Cr. P.C. I have heard Sri S. V. Goswami learned counsel for the applicants and Sri K. K. Mishra learned counsel for respondent No. 2 and Sri Rajul Bhargawa learned counsel for respondent No. 3 and perused the material brought or record. (5.) LEARNED counsel for the applicants has submitted that in view of the injunction order passed by the Munsif Mathura in civil suit No. 1075 of 1994 filed by the applicant on 7.10.1994, the criminal proceedings under Section 145, Cr. P.C. and the order of attachment under Section 146 (1), Cr. P.C. must have been dropped by the City Magistrate on receiving the copy of the order, and legally these proceedings cannot survive after the civil court has taken cognizance of the matter and has passed the prohibitory order. In support of his submission Mr. Goswami has Invited my attention to the decision of the Hon'ble Supreme Court in the case of Dharampal and others v. Smt. Ramshri and others, AIR 1993 SC 1361 .I have carefully gone through this judgment and find the following principle of law enunciated by the Hon'ble Supreme Court: "It is obvious from sub-section (1) of Section 146 that the Magistrate is given power to attach the subject of dispute "until the competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof." The determination by a competent Court of the rights of the parties spoken of there has not necessarily to be a final determination. The determination may be even tentative at the interim stage when the competent Court passes an order of Interim injunction or appoints a receiver in respect of the subject-matter of the dispute pending the final decision in the suit. The moment the competent court does so, even at the interim state, the order of attachment passed by the Magistrate has to come to an end. The moment the competent court does so, even at the interim state, the order of attachment passed by the Magistrate has to come to an end. Otherwise there will be inconsistency between the order passed by the Civil Court and the order of attachment passed by the Magistrate. The proviso to sub-section (1) of Section 146 itself takes cognizance of such a situation when it states that "Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of any breach of peace with regard to the subject of dispute." When a civil court passes an order of injunction or receiver, it is the Civil Court which is seized of the matter and any breach of its order can be punished by it according to law. Hence on the passing of the interlocutory order by the Civil Court, it can legitimately be said that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute." (6.) ON the strength of this principle of law Mr. Goswami has contended that the jurisdiction of the Executive Magistrate comes to an end to entertain and continue proceedings under Section 145, Cr. P.C, and Section 146, Cr. P.C. The moment civil court entertains a civil suit in respect of the same property and passes a prohibitory injunction order restraining the other party from interfering in the use of the property. He further submitted that in such a situation there does not arise any question of apprehension of breach of peace between the parties to the proceedings. On the other hand, Mr. Raju Bhargawa learned counsel appearing for respondent No. 3 has submitted that if the civil court does not pass a categorical and clear order relating to the possession of the disputed property which is the subject-matter of the proceedings under Section 145, Cr. P.C, the jurisdiction of the Executive Magistrate to take action under the aforesaid provisions of Code of Criminal Procedure does not come to an end automatically and the learned Magistrate has to apply his mind in order to see whether there has been any adjudication on the question of possession in relation to the property involved in the proceedings by a civil court in the civil suit respecting the same property. But in the present case the nature of the orders passed by the learned munsif in civil suit No. 1075 of 1994 filed by the applicant after a year from the date of attachment passed by the City Magistrate Mathura under Section 146, Cr. P.C. is very vague and does not adjudicate the question of possession and as such an order did not oust the jurisdiction of the City Magistrate in the proceedings. In support of his contention Mr. Bhargawa has invited my attention to a decision of this court in the case of All Mohammad v. State, 1994 (31) ACC 521 and another decision of this court in the case of Raju v. State, 1994 (31) ACC 537. (7.) MR. K. K. Mishra learned counsel for respondent No. 2 has also made a similar statement and urged that the orders passed by the City Magistrate Mathura under Section 145, Cr. P.C. and under Section 146 (1), Cr. P.C. are not liable to be quashed on the ground that the learned Munsif Mathura has passed some interim orders in the civil suit subsequently filed. (8.) AFTER hearing the submissions of the learned counsel for the contesting parties, the question coming up for determination is whether the orders passed by the Civil Court in civil suit No. 1075 of 1994 are vague or clear so far as the disputed property is concerned and if so whether the proceedings under Section 145, Cr. P.C. and order passed under Section 146 Cr. P.C. are liable to be quashed. There is no denying the principle of law enunciated by the Hon'ble Supreme Court and followed by this court in several decisions including the one cited above that if a dispute relating to ownership and possession of the property in question has been adjudicated by this pending before a competent civil court but an order of interim nature has been passed, the criminal proceedings under Section 145, Cr. P.C. and the order of attachment under Section 146, Cr. P.C. come to an end and cannot survive. This Court had an occasion in civil cases to interpret the interim orders passed by the Civil Court in a Civil Suit in respect of the property which formed the subject-matter of the proceedings under Section 145, Cr. P.C. and order under Section 146, Cr. P.C. come to an end and cannot survive. This Court had an occasion in civil cases to interpret the interim orders passed by the Civil Court in a Civil Suit in respect of the property which formed the subject-matter of the proceedings under Section 145, Cr. P.C. and order under Section 146, Cr. P.C. and came to the conclusion that if an order of the Civil Court either final or interim is not clear and categorical in regard to the same property, the Executive Magistrate does not become functus officio and has to pass necessary orders in order to prevent breach of peace which may likely arise in the event of vague adjudication or interim orders. The responsibility for maintaining law and order and tranquility in the society has been entrusted to the Executive Magistrate only as a temporary measure with a view to prevent apprehension of breach of peace, but if the competent civil court makes an adjudication or passes an interim order restraining one party from interfering with the disputed property, then the Executive Magistrate is bound to drop the proceedings and withdraw the attachment and order in the light of the adjudication or interim order passed by the Civil Court. (9.) NOW I come to the nature of the order passed by the learned Munsif Mathura in Civil Suit No. 1075 of 1994. This suit was filed by the applicant on 7.10.1994 almost after a year from the date of the order of attachment passed by the City Magistrate Mathura. An application for an interim prohibitory order was also filed by the petitioner/plaintiff on the same date, but the learned Munsif was pleased to pass an order on 7.10.1994 that the status quo shall be maintained. The order of status quo was not very clear and it did not help the City Magistrate to decide about the fate of attachment order and of the proceedings under Section 145, Cr. P.C. This Court has already held in the decisions in the case of Alt Mohammad (supra) and Raju (supra) and other cases that the order of status quo being vague it does not divest the Executive Magistrate of its jurisdiction to continue with the proceedings under Section 145, Cr. P.C. and the order of attachment under Section 146 (1), Cr. P.C. on the ground that apprehension of breach of peace still subsists. P.C. and the order of attachment under Section 146 (1), Cr. P.C. on the ground that apprehension of breach of peace still subsists. A similar decision has been rendered by this Court in the case of Raj Bahadur and others v. State of U. P., 1994 (31) ACC 654 and in the case of Harpal v. State of U. P. and others in Civil Misc. Writ Petition No. 313 of 1994. These decisions are inconsonance with the decision of the Hon'ble Supreme Court in the case of Dharampal (supra) as well as in the case of Ramsumer Puri Mehant v. State of U.P., 1985 AWC 128. It is, therefore, for the Executive Magistrate to satisfy himself whether there is no longer any likelihood of any breach of peace with regard to the subject of dispute in the light of the adjudication of the dispute by a competent Civil Court or by a tentative determination at the interim stage. If the interim order clearly specifies as to who should remain in possession of the disputed property and the other party is restrained from interfering with the possession of the party then the Magistrate shall withdraw the order of attachment and will also drop the proceedings under Section 145, Cr. P.C. (10.) IN the present case the interim order dated 7.10.94 in the nature maintaining status quo was not sufficient at all for resolving the proceedings pending before the learned City Magistrate Mathura. Considering this lacunae and vagueness in the interim order dated 7.10.94 the petitioner/plaintiff filed another application for interim prohibitory injunction on 22.10.94 and thereupon the learned Munsif after hearing the learned counsel for both parties passed another interim order on 26.10.94 whereby he modified his earlier order dated 7.10.94 and passed a specific order restraining the defendants/opposite parties from transferring the disputed property or from interfering in any manner and from damaging the articles placed inside the property. Mr. Rajul Bhargawa learned counsel for respondent No. 3 vehemently submitted that even this interim order of 26.10.94 did not resolve the question of possession and as such the proceedings before the Executive Magistrate were surviving. Mr. Rajul Bhargawa learned counsel for respondent No. 3 vehemently submitted that even this interim order of 26.10.94 did not resolve the question of possession and as such the proceedings before the Executive Magistrate were surviving. He invited the attention of this Court to the interim order of 26.10.94 passed by the learned Munsif and pointed out that there is no mention about the possession of the petitioner/plaintiff with regard to the disputed property and as such it cannot be interpreted that the order dated 26.10.94 uphold the possession of the plaintiff/petitioner in the disputed property and can protect his possession during the pendency of the civil suit. There is no doubt that the learned Munsif has not dealt with the question of possession in this order, but in the application dated 22.10.94 filed by the petitioner, the allegations were made to the effect that the plaintiff/petitioner was in actual possession of the disputed property and the valuable items like refrigerator, cooler, television, ceiling fans, cooking gas etc. kept inside the disputed property belonged to him and that the attachment was effected under the orders of the City Magistrate Mathura. The plaintiff was in possession and it was from his possession that the property was attached. The learned Munsif has considered this application as a whole and has prima facie found the allegations correct and only thereupon he has passed a comprehensive prohibitory order to the effect that the defendants shall not interfere with the disputed property in any manner whatsoever besides being prohibited from alienating the same during the pendency of the suit. The words used by the learned Munsif are quite comprehensive and in the context of the allegations made in the application it appeal that by this tentative determination of the question of possession, the learned Munsif was pleased to restrain the defendants from interfering with the property and the goods kept inside the property in any way. It is however open for either party to approach the Munsif again for any clarification if the order in question does not relate to possession. But in my opinion the restraint order against the defendants from interfering with the property in any manner and from damaging the goods kept inside the property, leaves no doubt for clarification. It is however open for either party to approach the Munsif again for any clarification if the order in question does not relate to possession. But in my opinion the restraint order against the defendants from interfering with the property in any manner and from damaging the goods kept inside the property, leaves no doubt for clarification. The possession of the plaintiff has been accepted by the learned Munsif otherwise he would not have passed such a sweeping and comprehensive restraint order against the defendants. In view of this order, the learned City Magistrate should have dropped the proceedings and should have withdrawn the attachment order by releasing the property to the plaintiff so that the order dated 26.10.94 passed by the learned Munsif would be implemented and given effect to. I am, therefore, unable to accept the view of Mr. Rajul Bhargawa that since the prohibitory order does not pertain to possession it cannot oust the jurisdiction of the Magistrate. (11.) FOR the aforesaid reasons I, hold that the impugned order of attachment passed by the City Magistrate Mathura in Criminal case No. 832/IX/93, Gajanand Chaturvedi v. Lalji Chaturvedi under Section 146. Cr. P.C. does not survive. In view of the tentative determination made by the learned Munsif in the form of his interim prohibitory order dated 26.10.1994 passed in Civil suit No. 1075 of 1994. Since the learned Munsif has restrained defendants (now opposite parties) from interfering In any manner whatsoever, the ground for apprehension of breach of peace totally disappears. The City Magistrate must drop the proceedings under Section 145, Cr. P.C. and withdraw the order of attachment in such a situation. If any person feels aggrieved against an order of the learned Munsif, he can very well move that court or a superior Civil Court of appeal or revision but cannot agitate the same matter before the Executive Magistrate. (12.) IN view of the finding recorded above, it no longer becomes necessary for issuing any directions to the City Magistrate for impleading as a party- applicant Dinesh Chandra Chaturvedi (Crl. Misc. Application No. 812 of 1994) and for transfer of the proceedings of Crl. Misc. application No. 832/IX/93 and therefore the order dated 24.2.1994 passed by City Magistrate, Mathura in the proceedings under Section 145 Cr. P.C. does not call for any interference. In the result, the Crl. Misc. Misc. Application No. 812 of 1994) and for transfer of the proceedings of Crl. Misc. application No. 832/IX/93 and therefore the order dated 24.2.1994 passed by City Magistrate, Mathura in the proceedings under Section 145 Cr. P.C. does not call for any interference. In the result, the Crl. Misc. application No. 551 of 1994 is hereby allowed and the proceedings in Crl. Case No. 832/IX/93 Gajanand Chaturvedi v. Lalji Chaturvedi under Section 145, Cr. P.C., P. S. Kotwali, Mathura pending in the Court of City Magistrate, Mathura are hereby quashed and the order of attachment dated 11.10.1993 passed by the City Magistrate, Mathura in the aforesaid case under Section 146 (1), Cr. P.C. is also quashed and the City Magistrate, Mathura is hereby directed to hand over the possession of the disputed property to the applicant along with the goods as per inventory prepared at the time of attachment to the applicant within 10 days from the date of the receipt of a certified copy of this order. (13.) CRIMINAL Misc. application No. 812 of 1994 is hereby dismissed.