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2000 DIGILAW 202 (ORI)

PRAFULLA PRADHAN v. SURESH PRADHAN

2000-04-05

P.K.TRIPATHY

body2000
JUDGMENT : P.K. Tripathy, J. - Heard. 2. The 1st Party in Crl. Misc. Case No. 284/95 of the Court of Sub-Divisional Magistrate, Angul (in short, 'SDM') has preferred this revision challenging legality and correctness of order dated 14.10.96. The aforesaid proceeding was initiated u/s 145, Code of Criminal Procedure and as stated at the Bar both the parties have already filed their written statements. It is the contention of the 1st party that he is the exclusive owner in possession of the suit property measuring Ac.3.70 decimals whereas the case of the 2nd party is that the suit property is the undivided Hindu Joint Family property of the parties and not in possession of the 1st party. It is the further case of the 2nd party members that a suit for partition with consequential relief is pending in the Court? Civil Judge (Sr. Division), Angul vides T.S. No. 13 of 1996. On consideration of that factum learned SDM passed the impugned order dropping the proceeding without conducting any enquiry. Learned SDM has also stated in the impugned order that he called for a report about the latest position regarding existence of apprehension of breach of peace and since no report was received from the police, he presumed that apprehension of breach of peace does not exist. 3. Learned Counsel for the Petitioner argues that the approach of the SDM is both arbitrary and illegal factually and legally inasmuch as' mere pendency of a civil suit does not operate as a bar for the criminal Court to drop the proceeding u/s 145, Code of Criminal Procedure He further argues that Plaintiff in the aforesaid suit is not a party in the 145 proceeding and apart from that no interim arrangement has been made by the Civil Court which can avoid the scramble for possession and apprehension of breach of peace. Hence, learned SDM should not have dropped the proceeding. He further argues that once the Magistrate was satisfied about existence of apprehension of breach of peace concerning the land dispute it was not required for him to ascertain about apprehension of breach of peace at intervals or in the midst of the enquiry when such contention was not advanced by the parties to the proceeding. He further argues that once the Magistrate was satisfied about existence of apprehension of breach of peace concerning the land dispute it was not required for him to ascertain about apprehension of breach of peace at intervals or in the midst of the enquiry when such contention was not advanced by the parties to the proceeding. Learned Counsel for the opposite party argues that when a civil suit is pending the impugned order need not be interfered with because the Petitioner, being a Defendant in that suit, can apply for interim arrangement either for appointment of receiver or grant- of interim injunction and thereby the apprehension of breach of peace will automatically be wiped off. In that respect he also states that the Plaintiff or any of the Defendants can approach Civil Court for such remedy. 4. The possibility of obtaining an order from the Civil Court cannot be a ground to restrict the jurisdiction of the Magistrate where after being factually satisfied about existence of apprehension of breach of peace preliminary order under Sub-section (1) of Section 145; Code of Criminal Procedure was passed. Law is well settled that multiplicity of litigation should not be allowed by permitting the parties to have parallel proceedings in civil and criminal Courts. Law is equally well settled that existence of apprehension of breach of peace between the parties concerning dispute over land or water or boundaries thereof is the sole requirement to initiate a proceeding u/s 145, Code of Criminal Procedure Thus, mere pendency of a case in Civil Court or any other Court of competent jurisdiction to adjudicate the right and title is not a debarring factor to the Executive Magistrate to initiate proceeding u/s 145, Code of Criminal Procedure if the Civil Court or any other Court of competent jurisdiction have not passed any order to avoid scramble for possession or to protect the property to avoid dispute and apprehension of breach of peace during the pendency of such proceeding in such Courts. See the cases of Prakash Chand Sachdeva Vs. The State and another, ; Charan Nayak and Ors. v. Kirtan Mohanty (1998) 14 OCR 2941; Fagu Meher v. Bhama Meher and Ors. (1998) 15 OCR 620; and Ude Naik v. Gouranga Naik (1999) 16 OCR 319. See the cases of Prakash Chand Sachdeva Vs. The State and another, ; Charan Nayak and Ors. v. Kirtan Mohanty (1998) 14 OCR 2941; Fagu Meher v. Bhama Meher and Ors. (1998) 15 OCR 620; and Ude Naik v. Gouranga Naik (1999) 16 OCR 319. In view of that, the order of the learned Executive Magistrate in dropping the proceeding because of pendency of civil suit admittedly without any interim arrangement is ipso facto incorrect and not sustainable. 5. The approach of the learned Executive Magistrate to call for a report from the OIC of the concerned police station regarding continuance of apprehension of breach of peace was wholly unwarranted inasmuch as there was no change in the circumstance relating to the claim of possession by the rival parties and apart from that, neither party filed any application contending that the breach of peace was no more existing. Once the Executive Magistrate after being satisfied about existence of apprehension of breach of peace between the parties concerning dispute relation to land or water or boundaries thereof initiates the proceeding he is not to drop the proceeding in the midst unless it is applied for on the ground of cessation of apprehension of breach of peace and the Magistrate records the finding that because of such changed circumstance (which is to be noted) no longer there exists any dispute and thereby the apprehension of breach of peace has subsided. In that respect such an order can be passed if the requirement of Sub-Section 95) of Section 145, Code of Criminal Procedure shall be made out. Admittedly, in this case, learned Executive Magistrate did not resort to the provision in Sub-section (5) of Section 145, Code of Criminal Procedure Once the preliminary order was passed parties may no longer be continuing with the fight claiming possession because of pendency of the proceeding u/s 145, Code of Criminal Procedure That is not a ground to drop the proceeding. In other words, it is not necessary for the parties or either of them to fight everyday with the adverse party so as to keep the proceeding u/s 145, Code of Criminal Procedure alive until it is adjudicated. In other words, it is not necessary for the parties or either of them to fight everyday with the adverse party so as to keep the proceeding u/s 145, Code of Criminal Procedure alive until it is adjudicated. To explain it in a more clear manner it may be stated that during the pendency of the proceeding u/s 145, Code of Criminal Procedure learned Executive Magistrate need not intermittently call for report from the police regarding continuance of apprehension of breach of peace unless the motion is made as required under Sub-section (5) of Section 145, Code of Criminal Procedure That being the position of law, in the present case, learned Executive Magistrate has absolutely gone wrong in dropping the proceeding on the ground of absence of apprehension of breach of peace merely because the concerned OIC of the Police Station did not submit a report. As rightly criticized, this was an arbitrary whim of the Executive Magistrate which prompted him to pass such an illegal order. 6. Under such circumstances, after a due consideration of the contentions of both the parties this Court while setting aside the impugned order direct the S.D.M., Angul to take up enquiry in accordance with law and to dispose of the case as expeditiously as possible. In the meantime, if on the approach of any of the parties to the Civil preceding any interim arrangement shall be made by the Civil Court then such party may approach the S.D.M., Angul to drop the proceeding. If the Civil Court shall make any interim arrangement to protect the property then as per the above stated position of law learned S.D.M. shall have no jurisdiction to adjudicate the factum of possession due to cessation of apprehension of breach of peace and in that event only learned S.D.M. shall drop the proceeding. 7. The Crl. revision is thus allowed on contest. Send back the LCR with a copy of this order to the Court below forthwith. Final Result : Allowed