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2003 DIGILAW 223 (JHR)

Sk. Md. Khalil v. Md. Hasim

2003-02-17

AMARESHWAR SAHAY

body2003
Order Heard the learned counsel for the parties. 2. In this application the petitioners who are the second parties in the court below in a proceeding initiated under section 145 of the Code of Criminal Procedure, are aggrieved by the order dated 17.2.2001 passed by the learned Sub-Divisional Magistrate, whereby their prayer for dropping the proceeding under section 145 of the Code of Criminal Procedure has been declined. 3. The facts of the case briefly stated are that in the year 1985, initially a proceeding under section 107 of Cr. P.C. was started by the Sub-Divisional Magistrate, Chas between Md. Hasim, Md. Islam and Md. Mobark on one side, as the first party, and Sk. Md. Khalil on the other side, as the second party. 4. However by order dated 3.1.1986 the learned Sub-divisional Magistrate converted the proceeding into a proceeding under section 145 of the Cr.P.C. after coming to the conclusion that since the apprehension of the breach of the peace was with respect to the dispute between the parties in relation to the possession of over the lands in question and accordingly the parties were issued notice to file their respective written statements and witnesses in support of their claim. 5. The said proceeding under section 145 of the Cr.P.C. remained pending for long on one ground or the other without any fruitful result. 6. From the impugned order of the learned Sub-Divisional Magistrate, it appears that by order dated 29.11.1999 i.e. after approx about 14 years four persons more were added as the members of the Second party but no notices, in fact, were issued to them and ultimately on 19.4.2002 i.e. after about one and half years the notices under section 145 of Cr.P.C. were issued to the respective parties. It further appears that in the meantime in the year 2000 the members of the second party, petitioners herein brought a Title suit no. 32/2000 in the court of the Sub-Judge. Bokaro at Chas making seven persons as defendants and two persons as proforma defendants. The main contesting defendants are all the members of the First party in the proceeding under section 145 Cr.P.C. 7. The relief claimed in the suit was for a decree for permanent injunction restraining the defendants no. 32/2000 in the court of the Sub-Judge. Bokaro at Chas making seven persons as defendants and two persons as proforma defendants. The main contesting defendants are all the members of the First party in the proceeding under section 145 Cr.P.C. 7. The relief claimed in the suit was for a decree for permanent injunction restraining the defendants no. 1 to 7 from selling executing any deed in respect of the land in suit and entering over or creating any sort of disturbance or interference in peaceful possession over the suit lands described in Sehedule 'B' and 'C' of the plaint. 8. The said suit is still pending for adjudication. Thereafter on 17.11.2000 the members of the second party/petitioners herein filed an application before the learned S.D.M. dropping the proceeding under section 145 Cr.P.C. on the grounds inter alia that because of long pendency of the proceeding under section 145 Cr. P.C. for more than 15 years it has lost its relevancy and since a Title suit is already pending between the parties with respect to the lands under proceeding and that two parallel proceedings be not allowed to proceed when the Civil court is already in session of the matter. 9. The First party members by filing rejoinder objected to the prayer of the second party stating that the parties to suit and the proceeding are not the same and the lands in dispute were also not the same and that suit was only for injunction, therefore, the dispute cannot be resolved in the title suit. 10. The learned S.D.M. after hearing both the parties, by the impugned order has refused to drop the proceeding and hence the petitioners have filed this application. 11. The opposite parties have filed counter affidavit in this case. 12. The learned counsel for the petitioner Mr. M.K. Laik, has contended that the learned S.D.M. was not right in holding that the parties as well as the lands in dispute are different 'in the Title suit and in the proceeding under section 145 of the Cr.P.C. As matter of fact the parties and properties are same in both the proceedings. On the basis of the above facts, Mr. On the basis of the above facts, Mr. Laik contended that it is a settled law that when a civil litigation is pending between the parties with respect to the properties in dispute for which a proceeding under section 145 of Cr.P.C. is also pending then in that case, the proceeding under section 145 Cr.P.C. is meaningless and should not be allowed to continue. 13. The next contention of Mr. Laik is that though since 1985 the proceeding is pending but inspite of lapse of more than 15 years there has not been any progress in the proceeding under section 145 Cr.P.C. and there has not been a single occurrence from which it can be said that still the apprehension of the breach of the peace exists, so as to justify the continuance of the proceeding. 14. He has relied on the decision reported 1995 88 CJ 398 in support of his contentions. 15. On the other hand Mr. N.N. Tiwari, learned Sr. counsel appearing for the opposite parties has vehemently contended that in the facts and circumstances of the case, this court should not exercise powers under section 482 of the Code of Criminal Procedure. He has further contended that the Civil suit bearing T.S. no. 32 of 2000 instituted by the petitioners has nothing to do with the declaration of possession of the parties under section 145 of the Proceeding bearing M.P. case no. 1645 of 1985 and the points in issue in the Section 145 proceeding is not covered by the said T.S. no. 32 of 2000. It is further submitted that in Schedule A and 8 several deeds have been described pertaining to several plots of land which are not covered by the land which are the subject matter of the proceeding of M.P. case no. 1645 of 1985. It is thus, baseless to state that the subject matter and the issue of the said proceeding in M.P. case no. 1654 of 1985 is covered by the T.S. no. 32 of 2000. It is further submitted that the petitioners have made a vague statement that the proceedings involved in the said suit are falling in Khata nos. 679, 751 of Mauza Chas, District, Bokaro. It is humbly stated that the 145 Cr. P.C proceeding is with respect to the specific area of different plots given on the Notice of the said proceeding. It is further submitted that the petitioners have made a vague statement that the proceedings involved in the said suit are falling in Khata nos. 679, 751 of Mauza Chas, District, Bokaro. It is humbly stated that the 145 Cr. P.C proceeding is with respect to the specific area of different plots given on the Notice of the said proceeding. Lastly it is submitted that once the proceeding under section 145 has been initiated then it should be decided on merit and it should not be dropped in the midst of it. 16. I have carefully gone through the materials on record and find that though all the second party members are not parties in the suit but it is a fact that all the plaintiffs and the defendants in the suit are also parties in the proceeding under section 145 of Cr. P.C. 17. I also find that all the plots in dispute in the proceeding under section 145 Cr.P.C. are also subject matter of the title suit and the suit is with respect to possession and injunction and therefore the civil court is in a position to resolve the disputes between the parties. Most disturbing aspect of the case is that the proceeding under section 145 of the Cr. P.C. is pending without any substantial progress, though more than 17 years have passed and it is still at the notice stage. 18. How leisurely the learned S.D.M. is taking the proceeding is evident from the facts that though he added more parties in the proceeding on 29.11.1999 but the notices were issued to them on 19.2.2001 i.e. about after 1 1/2 years. 19. Further more that though the application for dropping the proceeding was filed on 17.11.2000 but the same was disposed off after about 3 months i.e. 17.2.2001 and after 17.2.2001 the record was put up before the learned SDM on 2.4.2002 i.e. more than after a year and still on that day he ordered for issue of notice. The action of the learned S.D.M. and the manner in which he is taking the proceeding is strongly deprecated. 20. The action of the learned S.D.M. and the manner in which he is taking the proceeding is strongly deprecated. 20. In this view of the matter, I am of the considered opinion that the multiplicity of the litigation is not in the interest of the parties nor public time should be allowed to be wasted over the meaningless litigation as has been done in the proceeding in the question. 21. In the result, this application is allowed, the impugned order of the learned S.D.M. Chas is quashed and the proceeding under section 145 of Cr. P.C. being M.P. case no. 1654 of 1985 is hereby dropped. In future if there being any apprehension of the breach of peace at the hands of either party, learned SDM will have liberty to take preventive measures in accordance with law.