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2000 DIGILAW 510 (PAT)

Atma Singh v. State

2000-03-31

P.K.SINHA

body2000
Judgment 1. This application under Section 482 of the Code of Criminal Procedure has been filed by Atma Singh and four other petitioners for quashing the entire proceeding under Section 145 of the Cr.P.C. initiated by order dated 20.5.1994 recorded by Sri A.K.Jaiswal, learned Executive Magistrate, Danapur in case No. 326(M) 94, as well order dated 28.10.1994 recorded by Sri J.P.Ambastha, learned Executive Magistrate, Danapur in the same case. By former order, a proceeding under Section 144 of the Code of Criminal Procedure (Code in short) was converted into a proceeding under Section 145 of the Code and by later order, the property was attached under Section 146 of the Code and the Court appointed Officer-in-charge, Maner Police Station as receiver. 2. The argument on behalf of the petitioners is, under short compass, that Title Suit No. 122/94 is pending in the Court of Munsif, Danapur between the same parties and relating to same disputed land besides some other lands in which the question of title and possession both are involved, hence parallel proceeding cannot run in a Court with criminal jurisdiction. For this, learned counsel has relied upon a decision of this Court reported in 2000(1) PLJR 885 , in the case of Madan Mishra V/s. Triloki Nath Pandey and others. The learned counsel for the other side has relied upon a decision in the case of Jhumma Mal @ Devan Das V/s. State of Madhya Pradesh and others, reported in (1988)4 SCC 452 . 3. In reply thereto, learned counsel for the opposite party no.2 has drawn my attention to the impugned order which in detail discusses the cases of the rival parties and submits that not only Title Suit No.122 of 1994, but two other title suits are pending between the same parties, and a case under Section 188 of the Code and another under Section 107 of the Code as well other criminal cases. Learned counsel submits that in such circumstances, the case needs to be decided under Section 145 of the Code, in view of tense situation prevailing there between the parties which may explode any day. 4. Learned counsel submits that in such circumstances, the case needs to be decided under Section 145 of the Code, in view of tense situation prevailing there between the parties which may explode any day. 4. It is well settled that in case a civil litigation is pending for the same property in which question of possession is also involved, then a parallel criminal proceeding under Section 145 of the Code is not justified since either parties can approach the Civil Court for adequate relief so long the suit is pending. This is what has been held in the judgment of this Court, mentioned above, relied upon by learned counsel for the petitioners. Same was decided by the Supreme Court in the case of Ram Sumer Puri Mahanth V/s. State of Uttar Pradesh and others in which case, the suit having been dismissed, the appeal was pending before the Appellate Court, hence it was held that when Civil litigation was pending for the property wherein the question of possession was involved and has been adjudicated there was no question of parallel proceeding under Section 145 of the Code. 5. In the judgment of the Supreme Court relied upon by the learned counsel of the opposite party, in the case of Jhumma Mal @ Devan Das (supra) facts were not similar. Their lordships, referring to a judgment of the same Court in the case of Ram Sumer Puri Mahanth V/s. The State of Uttar Pradesh, (1985)1 SCC 437 had reiterated that ratio of that decision was that a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject matter. After this, it was observed that aforesaid did not mean that a concluded order under Section 145 of the Cr.P.C. mada by a Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party had approached the civil court. In this case, there is no concluded order of the Executive Magistrate finally disposing of case under Section 145 of the Code. 6. Learned counsel for the opposite party has also placed reliance on a decision of this Court in the case of Smt. Kalindi Devi V/s. The State of Bihar and others, reported in 1991(2) PLJR 552. In this case, there is no concluded order of the Executive Magistrate finally disposing of case under Section 145 of the Code. 6. Learned counsel for the opposite party has also placed reliance on a decision of this Court in the case of Smt. Kalindi Devi V/s. The State of Bihar and others, reported in 1991(2) PLJR 552. In that case, in the year 1979 a proceeding under Section 144 of the Cr.P.C. was drawn up respecting certain land, which was subsequently converted into proceeding under Section 145 of the Cr.P.C. and while the matter was pending before the Magistrate and the parties were to adduce evidence in support of their respective claims, a suit was filed in the year 1984 in the Court of Subordinate Judge and a prayer was made by the petitioner before the Executive Magistrate for dropping the proceeding which he declined to do. About continuance of proceeding under Section 145 of the Cr.P.C. it was observed that in such a proceeding, the Magistrate only has to see as to who was in possession over the property and that the decision in the suit would obviously prevail upon the decision of the Executive Magistrate. Hence, merely filing of suit cannot be the ground to stay the proceeding. However, in this judgment, it has not been specifically mentioned that in the Civil suit the matter involved also related to possession over the property. 7. Learned counsel also submitted that in the proceeding before the learned Executive Magistrate, date has been fixed for adducing evidence. However, the stage in the criminal proceeding before the Executive Magistrate is not very much relevant while deciding as to whether that proceeding can be allowed to continue in view of the proceeding in the civil suit. 8. In paragraph-13 of the instant petition reliefs sought in Title Suit No. 122/94 have been mentioned. The first relief is for declaring exclusive title and exclusive possession of plaintiff, and non-title and want of possession of the defendants, in respect of the suit land. The second relief is for grant of permanent injunction for restraining the defendants from interfering in any manner with the title and possession of the plaintiff over the suit land. It is submitted that the title suit is still pending in the Civil Court. The second relief is for grant of permanent injunction for restraining the defendants from interfering in any manner with the title and possession of the plaintiff over the suit land. It is submitted that the title suit is still pending in the Civil Court. When the matter of declaration not only of title but of the possession of the plaintiff is pending in a Civil Court, it would be improper to allow a proceeding for declaration of possession at a particular given time to continue before a Criminal Court. In so far as the ground-situation at spot, which also has been argued is concerned, the Civil Court has ample powers to grant interim reliefs to a party in the suit, hence for this purpose there may not appear to be any necessity for continuance of a parallel proceeding under Section 145 of the Code. 9. This being the position, the proceeding under Sec. 145 of the Cr.P.C. and the impugned order dated 20.5.94 initiating the proceeding are hereby quashed. The initiation of proceeding under Section 145 of the Code having been quashed, the impugned order dated 28.10.1984 passed in the same case has to follow suit, which also stands quashed.