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2023 DIGILAW 707 (ALL)

Pawan Singhania v. State Of U. P.

2023-03-16

ARUN KUMAR SINGH DESHWAL

body2023
JUDGMENT : 1. Heard Sri Sudhanshu Pandey, learned counsel for the revisionist and Sri Hari Pratap Gupta, learned AGA for the State. 2. By means of present revision, the revisionist has challenged the order dated 28.04.2010 passed by the Additional Sessions Judge/Court No.10, Gorakhpur in Criminal Revision No.217 of 2010 (Deepankar Pandey vs the State of U.P. and another) filed by the opposite party no.2 by which the revisional court set aside the order passed by the City Magistrate, Gorakhpur, under Sections 145 and 146(1) Cr.P.C. merely on the ground that civil suit, which was subsequently filed, is pending between the parties. 3. Contention of learned counsel for the revisionist is that impugned order passed by the Additional Sessions Judge, Gorakhpur is absolutely erroneous as learned court below has failed to consider that the civil suit is not in the right to possession but simply on the question of possession and prayer was made in that suit that he may not be evicted except adopt due procedural law. It was further contended that the Apex Court in the judgment of Prakash Chand Sachdeva vs State and another reported in AIR 1994 Supreme Court 1436 has held that merely pendency of civil suit between the parties can not be a ground for dropping the proceeding under Section 145 Cr.P.C. if there is no title or right of possession to the subject matter of suit. The civil suit was filed by the opposite party no.2 subsequent to the initiation of proceeding under Section 145 Cr.P.C. merely on the ground that there is some dispute between the parties on the basis of agreement to sale cannot be a ground to drop the proceeding under Section 145 Cr.P.C. 4. Learned counsel for the revisionist further relied on the case of Amresh Tiwari vs Lalta Prasad Dubey and another reported in AIR 2000 Supreme Court 1504, wherein the Apex Court has already held in the case of Jhummamal alias Devandas vs. State of Madhya Pradesh reported in, (1988) 4 SCC 452 : ( AIR 1988 SC 1973 : 1989 Cri LJ 82) that "this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145, Criminal Procedure Code should be set a naught. In our view this authority does not lay down any such broad proposition. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145, Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded order under Section 145 Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram summers case ( AIR 1985 SC 472 : 1985 Cri LJ 752) (supra) fully applies. We clarify that we are not stating that in every case where a civil suit is filed. Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil Court that proceedings under Section 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil Court would be binding on the Magistrate." 5. On the other hand, learned AGA for the State submits that there is apprehension that civil suit is pending between the parties and they can adjudicate their rights through civil court, therefore, there is no purpose for proceeding under Section 145 Cr.P.C. 6. On the other hand, learned AGA for the State submits that there is apprehension that civil suit is pending between the parties and they can adjudicate their rights through civil court, therefore, there is no purpose for proceeding under Section 145 Cr.P.C. 6. Considering the rival contention of the parties, I am of the view that impugned order was passed mainly on the ground that civil suit is pending between the parties without looking to the nature of leave of civil suit and without even going into the question that civil suit is not regarding the possession but merely to protect the possession till the process of law adopted and from perusal of plaint of the suit No. 709 of 2009, it appears that there is no title dispute between the parties and private respondents did not claim ownership or possession on the basis of any right, therefore, there is no occasion to drop the proceeding under Section 145 Cr.P.C. when there is purely question of possession is pending before the Magistrate even in the judgment relied upon by the counsel for the revisionist. The Apex Court clearly observed that question of possession is involved then the Magistrate is empowered to take cognizance under Section 145 Cr.P.C. Even in the judgment of Full Bench of this court reported AIR 1959 All 141 , Ganga Bux Singh vs Sukhdin has settled the issue. "It has been held that the proceedings under Sections 145 Cr.P.C. are only in the interest of the maintenance of peace and not in the interest of the preservation of the rights of any party. It was further held that the proceedings under Section 145 of the Code of Criminal Procedure are materially different from the proceedings in a proper suit. From the nature of the provisions it is clear that the Magistrate has been given this power primarily to preserve peace. The individual rights are affected only incidentally. The nature of the enquiry is quasi civil. It is an incursion by the criminal court in the jurisdiction of the civil court. It is, therefore, necessary that this incursion should be carefully circumscribed to the extend absolutely necessary discharging the function laid on the Magistrate of preserving the peace. The provisions of Section 145, Code of Criminal Procedure make that ample clear. It is an incursion by the criminal court in the jurisdiction of the civil court. It is, therefore, necessary that this incursion should be carefully circumscribed to the extend absolutely necessary discharging the function laid on the Magistrate of preserving the peace. The provisions of Section 145, Code of Criminal Procedure make that ample clear. The Magistrate does not enquire into the merits of the claims of the parties or even their right to possess the subject of the dispute. He is only concerned with the question as to who was in actual physical possession on the relevant date. This also indicates that the starting point of the proceedings) must be the date when he was satisfied that an apprehension of a breach of the peace existed and not even he received the first information." 7. The Apex Court clearly held that proceeding under Section 145 Cr.P.C. cannot be dropped merely on the ground that one party had approached civil court not with regard to title or right to possession therefore in view of law and fact, the impugned order dated 28.04.2010 passed by the Additional Sessions Judge, Gorakhpur in Criminal Revision No. 217 of 2010 is absolutely erroneous and passed on non-application of mind, therefore, the impugned order is liable to be quashed and it is accordingly quashed. 8. The matter is remanded back and the City Magistrate is directed to conclude the proceeding under Section 145 as well as 146 Cr.P.C. preferably within a period of six months from the date of production of a certified copy of this order, strictly in accordance with law. 9. The revision is finally disposed of.