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2000 DIGILAW 30 (CAL)

Nanturam Naskar v. Ajit Kumar Mondal

2000-01-17

MALAY KUMAR BASU

body2000
JUDGMENT 1. This is a revisional application under Section 401 read with Section 482 Cr. P.C. filed by Nanturam Naskar and three others (hereinafter referred to as the petitioners) against Ajit Kumar Mondal (hereinafter referred to as Opposite Party No.1) and the State of West Bengal (to be mentioned as Opposite Party No.2). The relevant facts leading to this application in short are as follows: – The Opposite Party No.1 filed an application under Section 144(2) of the Cr. P.C. being M.P. Case No. 618 of 1997 against these petitioners before the Executive Magistrate, Baruipur alleging inter alia that the Opposite Party No.1 was cultivating the disputed land as described in the schedule of the application and was recorded tenant, but the petitioners were forcibly cutting away the paddy and straw grown thereon. The Opposite Party No.1 further lodged a complaint before the O.C., Kultali P.S. on 6.7.97 on the same allegations being G.D.E. No. 162. The learned Executive Magistrate after hearing the applicant, that is the Opposite Party No.1 passed the order dated 15.7.97 directing the O.C., Kultali P.S. to enquire and report by the next date fixed i.e. 29.8.97 and also directed the O.C. to see that no breach of peace took place and no wrongful acts were done by the Opposite Parties of that case in respect of the disputed land. The learned Magistrate also directed the B.L.L.R.O., Kultali to make an enquiry and submit a report by the date fixed. In the meantime, the petitioners filed a title suit against the Opposite Party No.1, Ajit Kumar Mondal, before the Court of 3rd Munsif, Baruipur being R.S. No. 145 of 1997 praying for declaration of title and granting of injunction in respect of the disputed land in their favour and the learned Munsif passed an order granting temporary injunction under Order 39 Rules 1 & 2 Cr. P.C. in their favour in respect of the disputed land being Dag. Nos. 723 & 1222 under Khatian No. 236 of Mouza Garankanthi and that suit has been still pending and that order of temporary injunction has been still continuing. On 11.9.97, the Opposite Party No.1 further lodged a complaint under Section 188 Cr. P.C. in connection with the said M.P. case before the Court of learned Executive Magistrate, Baruipur alleging that the petitioners had violated the aforesaid order dated 15.7.97 of the learned Executive Magistrate. On 11.9.97, the Opposite Party No.1 further lodged a complaint under Section 188 Cr. P.C. in connection with the said M.P. case before the Court of learned Executive Magistrate, Baruipur alleging that the petitioners had violated the aforesaid order dated 15.7.97 of the learned Executive Magistrate. Thereafter, on 17.11.97, the learned Executive Magistrate passed the impugned order converting that proceeding under Section 144 Cr. P.C. into one under Section 145 Cr. P.C. and appointing a receiver for the land in question and directing the O.C., Kultali P.S. to enquire and report in respect of the alleged violation of his order dated 15.7.97. The learned Executive Magistrate further directed that the receiver so appointed would arrange for harvesting and selling of the produce of the land by auction and sale proceeds would be deposited into the treasury. 2. Being aggrieved by and dissatisfied with this order the petitioners have preferred this revisional application challenging the order as illegal, invalid and unsustainable. It is contended that the learned Executive Magistrate has admitted in the impugned order that a Civil Suit was pending between the parties over the disputed land before the learned 3rd Munsif and an interim order had been passed by the learned Munsif directing the parties to maintain status quo as regards possession and the learned Magistrate fell into an offer of law by appointing the B.L.L.R.O., Baruipur as the receiver in respect of the disputed land. According to the petitioner, the learned Executive Magistrate committed a wrong by not taking into consideration the settled legal position that where there has been an order of injunction passed by a Civil Court in respect of any land between the same parties a proceeding under Section 144 Cr. P.C. cannot be legally maintainable and no such order can be passed by the Executive Magistrate bearing upon the state of possession in respect of that land. The petitioners' contention is that the entire proceeding before the Executive Magistrate has become infructuous in view of the pendency of the Civil Suit and the order passed by the Civil Court and on that ground it is liable to be quashed. 3. The contention of the learned Advocate for the Opposite Party is that in the face of such an order passed by the Civil Court in respect of the disputed land, the Executive Magistrate was not competent to pass an order under this Section. 3. The contention of the learned Advocate for the Opposite Party is that in the face of such an order passed by the Civil Court in respect of the disputed land, the Executive Magistrate was not competent to pass an order under this Section. On a careful perusal of the impugned order, I find that the learned Executive Magistrate has not made any observation touching the State of actual possession in respect of the disputed land. Instead, he has directed an enquiry to be made by the Officer-in-Charge, Kultali Police Station in respect of the alleged violation of his previous order dated 15th July, 1997 passed under Section 144 of the Code of Criminal Procedure. What is material for the present purpose is that in his order he has appointed a receiver to take into custody the standing crops of the disputed land and arrange for the sale of the same and also deposit of the sale-proceeds in the Government Treasury. This part of the order has been made in view of sub-section (8) of Section 145 of the Code of Criminal Procedure. The question is whether this part of the order of the learned Executive Magistrate can be sustained. In support of the above contention of the learned Advocate for the Opposite Party, a decision reported in Murlidhar vs. State of Uttar Pradesh, 1992 Cr. LJ 2032, has been cited. It has been held in this judgment that where the custody of a seized truck which was the subject-matter of the trial was given by the Court to a party, the order was of interlocutory nature and revision there against was not maintainable. Learned Advocate for the Opposite Party submits that the present order under which an enquiry has been directed to be made pending final order to be passed by the learned Magistrate under Section 145 of the Code of Criminal Procedure is obviously of interlocutory nature and therefore the revisional application cannot be legally maintainable against such an order. But this contention is not correct. This revisional application is against the entire order of the Executive Magistrate which includes the second part of it to the effect that the local B.L.L.R.O. was appointed as a Receiver in respect of the disputed land to take into custody the produce of the land and to dispose of them and also to deposit the sale proceeds to the Government Treasury. That part of the order is certainly not of interlocutory nature and it affects the rights and liabilities of the parties substantially and therefore it is a revisable order and its legal maintainability does not suffer in any way. 4. The second contention of the learned Advocate for the Opposite Party is that when the Civil Court has passed an order of injunction in respect of the very same land in a civil suit between the same parties, then the hands of the learned Executive Magistrate are tied and he cannot pass an order like this imposing restriction on the parties right to enjoy the same in their own way. 5. The settled decision of law on this question is as follows: – In R.H. Bhutani's Case, AIR 1968 SC 1444 and Sajjan Singh's Case, 1970 (2) UJ 75 (SC), it has been laid down by the Apex Court that in any case involving disputes about possession, three types of orders by the Civil Court can be envisaged namely: – (i) To appoint a Receiver to manage the property. (ii) Restraining one of the parties from interfering with the possession of the other party during the pendency of the suit. (iii) The maintenance of status quo during the pendency of the suit. In the first type of case, there cannot be any possibility of dispute as the Court removes the apprehension of breach of peace by putting the property in its custody. In the second type of cases, the jurisdiction of a Criminal Court cannot be restricted because in such a case the party having obtained an ad interim order of non-interference with his possession if the other party uses force to dispossess him leading to the apprehension of breach of peace creating a situation for the launching of Section 145 proceeding and direction of an emergency power, the Magistrate will step in to defend the orders of the Civil Court. But in the third type of case i.e. maintenance of status quo during the pendency of the civil suit, Civil Court not being prima facie satisfied about any party being in possession and in such a case, when both parties claim possession a danger may develop with the anxiety of both parties or any of them to get into actual possession and the Magistrate by touching the subject-matter of dispute under Section 145 would be acting to defend the maintenance of the status quo as ordered by the Civil Court. 6. In our present case, the situation is akin to the abovementioned third type of case. Here the Civil Court has passed an order directing both the parties to maintain status quo without determining the question of actual possession thereby leaving open the possibility of both the parties claiming their possession and the situation deteriorating calling for intervention by the Executive Magistrate. In such a situation there cannot be any hesitation in our mind that the Executive Magistrate should not remain passive when there is report before him that there is a threat of breach of peace or tranquility over the disputed land. Thus, the contention of the learned Counsel for the Opposite Party cannot be accepted that simply because a civil suit is pending between the parties and the learned Munsif has passed an order directing the parties to maintain status quo, the Executive Magistrate should have no role to play. Because, for the purpose of exercising the powers under this Section, the paramount consideration is the likelihood of breach of peace which consideration should be allowed to prevail upon the question whether a particular party has a rightful claim to the title and possession in respect of the land. 7. In this case, the learned Munsif has neither determined the rights of the parties nor their actual possession in respect of the disputed land. Neither he has appointed any Receiver. 7. In this case, the learned Munsif has neither determined the rights of the parties nor their actual possession in respect of the disputed land. Neither he has appointed any Receiver. In such a situation, particularly in view of the report filed before the learned Executive Magistrate signifying the apprehension of breach of peace, it must be held that it is well within the competence of the learned Executive Magistrate to exercise the powers conferred under Section 145(8) of the Code of Criminal Procedure to appoint a Receiver for taking into the custody and making disposal of the standing crops, namely, paddy, which is subject to speedy and natural decay, in order to avert the occurrence of any untoward incident. By passing such an order, the Magistrate may rather be said to be acting in defence of the maintenance of the status quo as ordered by the learned Munsif. Therefore, there is practically no conflict between the order of the Executive Magistrate in question and the Civil Court's order in this particular case. 8. The learned Advocate for the petitioner, however, referred to two other decisions of the Apex Court in support of his contention that the decision of a Civil Court in such respects should have primacy over that of the Court of the Executive Magistrate and during the pendency of the civil suit, the parallel proceeding before the latter is barred. These are Karamchand Ganga Pershad & other vs. Union of India & others, AIR 1971 SC 1244 , and Ram Sumer Puri Mahant vs. State of Uttar Pradesh & other, AIR 1985 SC 472 . In the former it has been held that decisions of Civil Courts are binding on the Criminal Courts and the converse is not true. Nobody disputes this position. As I have already observed above, in our present case there is no scope for any conflict or divergence between any order of the Civil Court and that of the Court pf the Executive Magistrate in question. The above principle that the order of the Civil Court will always be binding upon a Criminal Court is not being ignored in any way. On the contrary, the order of the learned Executive Magistrate will help the order of the Civil Court to be effective and meaningful in view of the fact that there are reports of threat of breach of peace over the disputed land. On the contrary, the order of the learned Executive Magistrate will help the order of the Civil Court to be effective and meaningful in view of the fact that there are reports of threat of breach of peace over the disputed land. Similarly, the facts of the other ruling relied upon by the petitioner, namely, AIR 1985 SC 472 , are not found to be identical and the principles enunciated therein not squarely applicable to our present case. It has been laid down therein by Their Lordships of the Supreme Court that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjl1dicated, initiation of a parallel Criminal proceeding under Section 145 of the Code, would not be justified. The 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 the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. In the instant case as we have already discussed above, there has been as yet neither any decree of the Civil Court nor any order adjudicating upon the question of possession of the parties, nor even any interim order granting an order of injunction or appointing any receiver has been passed by the Civil Court. In such circumstances, the judgment of the Apex Court referred to above will not clearly attracted. Neither party having been found to be in prima facie, possession by the Civil Court and on order for maintenance for status quo having been passed by it during the pendency of that civil suit, nor the land having been entrusted into the hands of a receiver, the danger to peace and tranquility may emerge at any time due to both the parties claiming their right to harvest the standing crops of that disputed land and being at loggerheads. In the case under reference Their Lordships were not facing such a situation. Having regard to the foregoing reasons, I am inclined to hold that the petition for quashing the entire proceedings before the Executive Magistrate has no merit and therefore the same is dismissed. In the case under reference Their Lordships were not facing such a situation. Having regard to the foregoing reasons, I am inclined to hold that the petition for quashing the entire proceedings before the Executive Magistrate has no merit and therefore the same is dismissed. The impugned order be upheld.