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2013 DIGILAW 18 (JHR)

Mahendra Prasad Keshri v. State of Jharkhand

2013-01-03

R.R.PRASAD

body2013
Order Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party no. 2. 2. It appears that upon filing an application by opposite party no. 2 before the Sub-Divisional Magistrate, Barhi (Hazaribagh) a proceeding under Section 144 of the Code of Criminal Procedure was initiated over the land bearing plot no. 1070 appertaining to khata nos. 57 and 17 measuring an area of .08 acres. Subsequently, that proceeding was converted into a proceeding under Section 145 of the Code of Criminal Procedure. Thereupon an application was filed by the opposite party no. 2 for attaching the property under Section 146 of the Code of Criminal Procedure whereupon an order was passed on 2.2.2011 whereby the land in question was attached under Section 146(1) of the Code of Criminal Procedure. That order of attachment was challenged before the revisional court in Cr. Rev. No.61 of 2011. 3. While the matter was pending, an amendment petition was filed by the petitioner whereby prayer was made to set aside that order under which 144 proceeding had been converted into a proceeding under Section 145 of the Code of Criminal Procedure. The revisional court dismissed the revision application, vide its order dated 10.6.2011 which is under challenge. 4. Learned counsel appearing for the petitioner submitted that when the revision application was preferred before the revisional court, an order passed under Section 145 of the Code of Criminal Procedure was also challenged on the ground that opposite party no. 2 has brought Title Suit No. 155 of 2009 for declaration of right, title and interest over the suit property and in that title suit, prayer was also made for recovery of possession and, therefore, while the matter relating to possession was under adjudication before the civil court, the revisional court should have set aside not only the order passed under Section 146(1) of the Code of Criminal Procedure but also the order under which proceeding had been converted into a proceeding under Section 145 of the Code of Criminal Procedure, in view of the decision rendered in a case of Amresh Tiwari Vs. Lalta Prasad Dubey and Others [2001 (1) JLJR (SC)106] but the learned revisional court did not consider the matter in right perspective and hence, the order passed by the Revisional Court and also by the Magistrate are fit to be set aside. 5. As against this Mr. Lalta Prasad Dubey and Others [2001 (1) JLJR (SC)106] but the learned revisional court did not consider the matter in right perspective and hence, the order passed by the Revisional Court and also by the Magistrate are fit to be set aside. 5. As against this Mr. Rajesh Kumar, learned counsel appearing for the opposite party no. 2 submitted that basically this application is directed against the order passed under Section 146(1) of the Code of Criminal Procedure which 'order would remain in force till any court of the competent jurisdiction determines right of possession of the parties. 6. In this respect learned counsel has referred to a decision rendered in a case of Dharampal and Others vs. Ramshri (Smt.) and Others [ (1993)1 SCC 435 ] as well as Shanti Kumar Panda vs. Shakuntala Devi [ (2004)1 SCC 438 ] [: 2004(1) JLJR(SC)239] 7. Thus, it was submitted that orders impugned never warrants any interference. 8. Having heard learned counsel appearing for the parties, it does appear that on an application filed by the opposite party no. 2, a proceeding was initiated initially under Section 144 of the Code of Criminal Procedure which was converted subsequently under Section 145 of the Code of Criminal Procedure. Thereupon an order of attachment was passed in terms of the provision as contained in Section 146(1) of the Code of Criminal Procedure. The order passed under Section 146(1) was challenged before the revisional court. Subsequently, an amendment petition was filed whereby the order under which proceeding had been converted under Section 145 of the Code of Criminal Procedure was challenged on the ground that opposite party no. 2 has brought Title Suit No. 155 of 2009 for declaration of right, title and interest and also for recovery of possession but the learned Magistrate without considering the matter in right perspective dismissed the revision application in spite of the fact being brought before it that two parallel proceedings are going on which is not permissible under the law. 9. 9. In this regard, a decision rendered in a case of Ram Sumer Puri Mahant vs. State of U.P and Others [ (1985)1 SCC 427 ] [: 1985 PLJR (SC)14] be referred to wherein their Lordships have held as follows:- "When a civil litigation is pending for the property wherein question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt to dispute the position that the decree of the civil court is binding on the criminal court in a matter like the same before us. Counsel for the respondents was not in position to challenge the proposition that 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 position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during the pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue." 10. The same proposition of law was followed subsequently in a case of Amresh Tiwari VS. Lalta Prasad Dubey and Others (supra). 11. Thus, in view of the settled proposition, the revisional court should have passed an order for dropping of 145 proceeding. 12. Going further in the matter, it be stated that the stand which has been taken on behalf of the opposite party no. 2 is that once an order has been passed under Section 146(1) of the Code of Criminal Procedure that will remain in force until competent court determines the right of the parties with respect to possession. 13. 12. Going further in the matter, it be stated that the stand which has been taken on behalf of the opposite party no. 2 is that once an order has been passed under Section 146(1) of the Code of Criminal Procedure that will remain in force until competent court determines the right of the parties with respect to possession. 13. No doubt it is true that the learned Magistrate after making an order under sub-section (1) of Section 145, may attach the property under Section 146(1) of the Code of Criminal Procedure if he considers the case of emergency and that order of attachment remain in force until competent court determines the right of the parties with respect to possession but when the initiation or continuance of a proceeding under Section 145 of the Code of Criminal Procedure is itself illegal, then the order passed under Section 146(1) of the Code of Criminal Procedure can be said to be nullity. 14. Furthermore, it be stated that determination by a competent court of the right of the parties as has been contemplated under Section 146(1) of the Code of Criminal Procedure need not to be necessarily final determination. The determination may be even tentative at the interim stage when the competent court passes an order of interim injunction or appoints receiver in respect of subject matter of the dispute pending final decision in the suit. The moment the competent court passes an order even at the interim stage, the order of attachment passed by a Magistrate has to come to an end. This proposition has been laid down in both the cases referred to above on behalf of the opposite party no. 2. 15. It has been placed before this Court by learned counsel appearing for the petitioner that when opposite party no.2 filed title suit, an application was filed for grant of temporary injunction which was rejected. This plea has not been controverted on behalf of opposite party no. 2. 16. Under the circumstances the order passed under Section 146(1) is bad not only on the ground mentioned just above but also on the ground that initiation/continuation of the proceeding was quite bad. 17. Accordingly, both the orders under which 144 proceeding was converted into 145 proceeding and also the order of attachment being bad are hereby set aside. 18. In the result, this application stands allowed.