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2004 DIGILAW 357 (UTT)

Suryamani Dangwal v. State of Uttaranchal

2004-12-08

J.C.S.RAWAT

body2004
JUDGMENT Hon'ble J.C.S. Rawat, J.- The challenge under section 482 of Criminal Procedure Code (for the short 'Cr.P.C.') is the order of the learned Sessions Judge. Tehri dated 1.10.2004 (annexure 6 to the petition) passed in criminal revision no. 19/2004 Heera Mani Dangwal v. State and others in which the learned Sessions Judge has allowed the revision and dropped the proceedings under section 145 Cr.P.C and quashed the attachment order passed therein in consequence of the said order. 2. Undisputedly a police report was called for by the Executive Magistrate from the police station on the behast of the petitioner for the shop in dispute measuring 1300 square feet. The police submitted report on 1.4.2004 that there is a dispute regarding the question of possession of the disputed shop and there is apprehension of breach of peace amongst the parties. Thereafter preliminary order was passed and the parties were asked to submit their written statement. Pursuant to it the parties filed written statements. The petitioner alleged in his written statement that a civil suit had been filed with regard to the same property and the civil court had passed the status quo order with regard to the possession of the disputed property. On these proceedings learned Magistrate considering all the facts of the case and situation concluding that there is eminent and urgent matter of breach of peace the attachment order was passed on 22.4.2004. The parties were directed that till the right and claim of the parties arc not adjudicated by the competent court of law the property would remain attached. Feeling aggrieved by the said order of Executive Magistrate, the revision petition was preferred by the respondent no. 2 before the learned Sessions Judge, Tehri and the learned Sessions Judge quashed the attachment order and allowed the revision on the ground that the civil suit between the same parties in pending and the competent civil court in civil suit no. 21/04 has passed an interim order of status quo and as such the proceedigns under sections 145 and 146 Cr.P.C could not be initiated by the Executive Magistrate Feeling aggrieved by the said order the present petition under section 482 Cr.P.C has been filed before this court. 3. I have heard the learned counsel for the petitioner and learned counsel for the respondents and perused the record. 3. I have heard the learned counsel for the petitioner and learned counsel for the respondents and perused the record. Learned counsel for the parties agreed that the petition may be disposed of finally at the stage of admission. 4. The short question that arises for consideration is whether in the• facts and circumstances of the case a civil suit for injunction is pending before the competent forum i.e. Civil Judge (J.D.) Tehri the respondent was not entitled to invoke the jurisdiction of the Executive Magistrate under section 145 Cr.P.C and the learned Magistrate was competent to initiate the proceedings and pass any order of appointment of receiver, attachment etc. Undisputedly in respect of the very property civil suit no. 21 of 2004 Heeramani Dangwal v. Suryamani Dangwal and 2 others (annexure 7 to the petition) for injunction was filed on 2.4.2004 on which an interim order of status quo was passed by the competent forum i.e. Civil Court. On the question whether the proceedings u/s 145 Cr.P.C. can be initiated when a civil suit is pending with regard to the same property, thee was a controversy amongst different High Courts. Some of the High Courts were of the view that such proceedings should be maintained if the conditions under sections 145 and 146 Cr.P.C. were satisfied. Some of the High Courts were of the opinion that during the pendency of civil suit in respect of same subject matter the jurisdiction of the Magistrate under sections 145 and 146 Cr.P.C. is ousted particularly when an injunction was granted by the civil court. Hon'ble Supreme Court in Ram Sumer Puri Mahant v. State of U.P. and others, AIR 1985, SC 472 has settled the controversy by observing that there is no scope to doubt or dispute the position that the decree of the civil suit is binding on the criminal court in such a matter. In the event of a decree of a 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 order such as injunction or appointment of receiver for adequate protection of property during the pendency of dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. 5. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. 5. In the present case the civil suit was pending on the date when final order was passed by the -learned Magistrate and the order for status quo has also been passed by the civil court on 2.4.2004. 6. The learned counsel for the petitioner contended that if no effective interim order has been passed by the civil court, mere pendency of the civil suit between the same parties in respect of same dispute, is of no help to the Magistrate in maintaining peace and therefore proceedings u/s 145 Cr.P.C. are maintainable. It was further contended that for such cases as referred above a Magistrate would be failing in his duties in case he doe sno proceed u/s 145 and 146 Cr.P.C. when he had an apprehension of eminent danger of peace and tranquility in the area merely on the ground that status quo order has been passed by the civil court. The learned counsel for the petitioner has relied upon the following decisions of Allahabad High Court :- 1. 1994 ACC page 537, Raju & others v. State of U.P. & others. 2. 1996 Allahabad Appeal Reporter page 300 Faquir Chand & others v. State of U.P. & others. 3. 1998 ACC page 757 Jagroop v. State of U.P. 7. In the aforesaid rulings the propositions of law has been laid down that merely an order of status quo has been passed the proceedings u/s 145 Cr.P.C. can be maintained. But the learned counsel for the respondents has relied upon the case, Amresh Tiwari v. Lalta Prasad Dubey & another, AIR 2000 Supreme Court 1504. In the instant case a civil suit with regard to declaration of title and possession and for injunction was filed on 10.10.1990 before the Civil Judge, Gyanpur, and order to maintain status quo as on that date was passed by the court. In the instant case a civil suit with regard to declaration of title and possession and for injunction was filed on 10.10.1990 before the Civil Judge, Gyanpur, and order to maintain status quo as on that date was passed by the court. When the suit was pending the station officer of police station made a report to the S.D.M. stating that there was a dispute regarding the possession of land and there was likelihood of breach of peace and the learned Magistrate initiated proceedings u/s. 145 Cr.P.C. The respondent in that case claimed that the property that is the subject matter of the civil suit was different from the property in respect of which the proceedings u/s 145 Cr.P.C. had been adopted. Later on it was admitted to the respondent no.1 that the civil suit in respect of the land i.e. the land in respect of which proceedings u/s. 145 Cr.P.C. had been adopted were the same. Hon'ble Supreme Court held that the civil suit had been filed first and order of status quo had also been passed by the competent civil court the proceedings u/s. 145 Cr.P.C. were initiated by the S.D.M. simultaneously. The Hon'ble Court applying the ratio laid down in Ram Sumer Puri Mahant's case (Supra) held that the proceedings u/s. 145 Cr.P.C. are not maintainable as order of status quo was passed by the civil court. 8. It was further submitted by the learned counsel for the petitioner that the respondent no. 3 has not filed the civil suit for possession and for declaration and as such the proposition of law laid down in Amresh Tiwari's case (Supra) is not applicable in this case. I have gone through the plaint filed by the respondent no. 2 in which it has clearly been stated that the petition rand the respondents no. 2 and 3 are brothers and a family settlement had taken place in between them and pursuant to the family settlement the said property had come in the share or respondents and they are in possession of the said property. Meaning thereby the civil court while disposing of the suit in which it would be decided as to whether the plaintiff was owner in possession of the shop in dispute or not. As such in civil suit no. 21 of 2004 the question of title and possession is involved. Meaning thereby the civil court while disposing of the suit in which it would be decided as to whether the plaintiff was owner in possession of the shop in dispute or not. As such in civil suit no. 21 of 2004 the question of title and possession is involved. As such the contention of the learned counsel for the petitioner is not tenable. 9. In view of the above propositions of law it is clear that if the civil court has passed by the order for status quo the proceedings u/s. 145 and u/s 146 Cr.P.C. are not maintainable. 10. The learned counsel for the petitioner has relied upon a decision of Hon'ble Supreme Court in the case of Prakash Chand Sachdeva v. The State and another, AIR 1994 Supreme Court 1436. In the instant case the father appellant before the Supreme Court has to approach to police authorities against his own son in which he alleged that he being the owner of the house, which was vacated by the tenant and was in possession of the appellant. In June 1992 when the appellant and his wife went to Jaipur to see her ailing daughter and when they returned back they found that their belongings had been removed and the portion of the house had been locked. Their son treated them harshly and abusively. The learned Magistrate dropped the proceedings u/s. 145 Cr.P.C. Hon'ble Supreme Court in the peculiar circumstances of the case held that Ram Sumer Puri Mahant's case (supra) when the claim and title arc not in dispute and the parties are co-owners and there is no partition, one cannot be permitted to act forcibly and unlawfully. As such the pendency of the civil suit is no bar u/s 145 Cr.P.C. In the peculiar circumstance of the case the law laid down in this ruling is not applicable on the facts of the present case. It is alleged that in the civil suit there is partition in between the parties and the respondent has alleged in the suit that he is the owner of the disputed shop. 11. In view of the above discussion the petition lacks merit and is dismissed.