Allahabad High Court
Smt.Binda Devi vs State Of U.P.& Another. on 17 December, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Case :- CRIMINAL REVISION No. - 84 of 2001 Revisionist :- Smt.Binda Devi Opposite Party :- State Of U.P.& Another. Counsel for Revisionist :- Mohd.Arif Khan,Mohd. Adil Khan Counsel for Opposite Party :- Govt.Advocate,D.C. Mukherjee Hon'ble Arvind Kumar Tripathi (II),J.
1. Heard Mohd. Arif Khan, learned counsel for the revisionist, Sri D.C. Mukherjee, learned counsel for respondent and Sri Rizwan Kamal, learned AGA for the State.
2. This criminal revision has been filed by Smt. Binda Devi challenging the judgment dated 22.12.2000 passed by Special Judge (S.C. & S.T. Act), Unnao by which revision filed against order dated 30.8.2000 passed by Sub Divisional Magistrate, Safipur, Unnao under Sections 145/146(1) of Criminal Procedure Code for attachment of property in dispute, was dismissed.
3. As per factual matrix of the case, a proceeding under Section145(1) was initiated on a report of Inspector Incharge Kotwali Safipur dated 28.10.1998 by which it was alleged that Smt. Binda Devi was married in village Deogaon Pargana, Tehsil Safipur, District-Unnao. But unfortunately she became widow. Agricultural property of Binda Devi's husband is in possession of Vimal Chandra while name of Binda Devi is entered in revenue record. Several cases are pending between the parties but no final decision has yet been given in any case. There is dispute regarding reaping and sowing of crops. On this report, notice was issued to the parties. Vimal Chandra opposite party appeared and filed objection and prayed for dismissing the proceeding under Section 145 Cr.P.C. During the pendency of the proceedings, an order of attachment was passed under Section 145(8) of the Cr.P.C. vide order dated 13.4.2000, the agricultural produce (crop) was attached and it was directed that this crop be given in custody of an independent person who shall after reaping the crop sell it and deposit the amount in the Court. Criminal revision was filed against that order which was dismissed by Sessions Judge Unnao. Later on an application was moved by revisionist for attachment under Section 146(1) of Cr.P.C. and Sub Divisional Magistrate, Safipur Unnao vide order dated 30.8.2000 attached the disputed property and directed Inspector Incharge Kotwali Safipur to name any independent person alongwith full details so that the disputed property be given into his custody and directed both the parties not to do any agricultural work on the disputed land. Feeling aggrieved, Criminal Revision No.84 of 2000 was filed by Vimal Chandra which was allowed and order dated 30.8.2000 was set aside. Feeling aggrieved this criminal revision has been filed by Smt. Binda Devi.
4. It was argued by learned counsel for revisionist that the criminal revision filed against an order passed under Section 146(1) of the Criminal Procedure Code was not maintainable and thus the revisional court has erred in allowing the revision. Revision should have been rejected being not maintainable. It was also submitted that even other wise, the revision has wrongly been allowed.
5. Learned counsel for respondent no.2 argued that criminal revision against order under Section146(1) of the Criminal Procedure Code is maintainable and learned court below has not erred in passing such order.
6. Learned counsel for respondent has in support of his argument relied upon the decision of Munna Singh @ Shivaji Singh & others Vs. State of U.P. & Another 2011(3) JIC, 628 Allahabad; Full Bench.
7. I have heard the learned counsel for the parties and gone through the record.
8. Whether the orders passed by the Magistrate under Sections 145(1) and 146(1) of the Code of Criminal Procedure are interlocutory orders simplicitor and no revision petition under Section 397 or 403 of the Code or petition under Section 482 of the Code is maintainable against the same was under consideration before Full Bench of this Court in Munna Singh @ Shivaji Singh & others Vs. State of U.P. & Another (supra) and it was held that;
"An order under Section 145(1) followed by an order under Section 146(1), or even passed simultaneously, brings to the forefront the primary question of the assumption of jurisdiction by the Magistrate to proceed in a matter. If the facts of a particular case do not warrant the invoking of such a jurisdiction, for example, in cases where civil disputes are pending and orders are operating, then in view of the law laid down by the Apex Court in the decisions referred to hereinabove following Ram Sumer Puri Mahant's case (supra), an order ignoring such proceedings will have to be curtailed for which a revision would be maintainable under Sub Section (1) of Section 397 as, such an order, would not be a mere interlocutory order and would touch upon the rights of the parties."
The difficulty again is that can such a list of illustrations be catalogued so as to confine the revisional jurisdiction in relation to such intermediate orders. Our obvious answer is in the light of what has been said in the case of Mohan Lal's case (supra) by the apex court that the determination of such an issue as to whether a revision would be maintainable or not would in turn depend upon the nature of the order and the circumstances in which it came to be passed. Thus it would depend on the facts and circumstances of each separate individual case where the revising authority will have to examine as to whether the Magistrate has proceeded to exercise his judicious discretion well within his jurisdiction or has travelled beyond the same, keeping in view the various shades of litigation in such matters where the apex court and this Court has held that an intermediate order, which is not necessarily an interlocutory order, could be subjected to revision. An order not conclusive of the main dispute between the parties, but conclusive of the subordinate matters with which it deals is not a purely interlocutory order even though it may not finally adjudicate the main dispute between the parties. In our opinion therefore a revision would not be barred under Sub Section (1) of Section 397 of the Code if the orders impugned before the revising authority fall within the tests indicated hereinabove.
Our answer to the question referred would be therefore in the negative, and we hold that orders passed under Sections 145(1) and 146(1) of the Code are not in every circumstance, orders simplicitor, and therefore a revision would be maintainable in the light of the observations made in this judgment depending on the facts involved in each case.
9. A perusal of the decision of full Bench in the above Munna Singh's case it is clear that it will depend on the facts and circumstances of each separate individual case where the revising authority will have to examine as to whether the Magistrate has proceeded to exercise his judicious discretion well within his jurisdiction or has travelled beyond the same, and thus, the revision would not be barred under sub-section (1) of Section 397 of the Code if the orders impugned before revising authority fall within the tests indicated in the cases decided by the Apex Court.
10. Thus, the argument of learned counsel for revisionist that revision is not maintainable cannot be sustained, as each case has to be judged on facts of that case.
11. The revisional court has while deciding the revision has held that the revision is maintainable. There is no error in this finding.
12. Learned revisional court has again relied upon the case of Ram Sumer Mahant Puri Vs. State of U.P. and Others 1985 ACC 45 SC, and opined that as civil litigation is pending between the parties and orders have been passed for maintaining status quo then the order passed by Sub Divisional Magistrate is bad in law and is liable to be quashed.
13. Learned revisional court has further held that several cases are pending before competent courts in which parties have been directed to maintain status quo. Hence learned Sub Divisional Magistrate Safipur should not have passed such orders.
14. In the case of Ram Sumer Mahant Puri (supra) the emphasis of the Apex Court was that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145of the Code. The words " the question of possession is involved and has been adjudicated" is important and has significant effect on the instant case. There is nothing on record to show and Learned counsel for respondent was also unable to show that there was any civil suit pending in which question of possession is involved and has been adjudicated.
15. It is clear from subsection (I) of Section 145 of the Code that the existence of a dispute likely to cause a breach of peace constitutes the very foundation of the Magistrate's Jurisdiction thereunder. The proceedings contemplated under Section 145 read with section 146 of the Code are basically different from a suit for declaration and injunction. The conflicts of jurisdiction have, of course to be avoided but if there is no likelihood of any conflict, merely the institution of a civil suit or civil suits is no bar to the Magistrate exercising his jurisdiction for performing his function for preventing breach of peace.
16. In such cases involving the disputes of possession in my view, three types of orders can be envisaged to be passed by the Civil Courts : (i) appointment of receiver to manage the properties in dispute : (ii) restraining of one of the parties from interfering with the possession of that other party during the pendency of the suit, about which the Civil Court prima facie feels satisfied and (iii) maintenance of status quo about the possession of the property during the pendency of the case.
17. If a Civil Court appoints a receiver then there is no possibility of any dispute of the possession as the receiver gets into the possession of the property on behalf of the Court and is to deliver it to that party in whose favour the Court ultimately decides. In such cases there cannot be any possibility of the dispute giving rise to the proceedings under Section 145,Cr.P.C. as the Court removes apprehension of the breach of peace by putting the property in its custody.
18. In the second type of cases prima facie it appears that there may not be any scope for the Criminal Court to act under Section145 Cr.P.C., because the Civil Court prima facie feels satisfied about the possession of one of the parties to the litigation before passing the ad-interim order in his favour defending his possession. On giving a deeper thought I do not think that this Jurisdiction of a Criminal Court be restricted. Cases are not wanting where a party obtains an ad-interim order in his favour to the effect that during the pendency of the suit the other party will not interfere in his possession. If the other party uses force to dispossess him, in spite of the stay order in his favour, leading to the apprehension of the breach of the peace creating a situation for the launching of the proceedings under Section145Cr.P.C. and attraction of its emergency powers under subsection (4), the Magistrate will then step in, not to start parallel proceedings but to defend the orders of the Civil Court by not allowing the aggressor to establish himself in possession of the subject-matter of the dispute in violation of the orders of the Court. In such a. situation if the Magistrate acts then he adds the weight of the executive authority to respect the order of Civil Court for maintenance of status quo and does not violate any law. Yet another type of cases can be anticipated where one may enter into, wrongful or forcible possession of the property leading to proceedings under Section 145Cr.P.C. He may approach a Civil Court and obtain an order in his favour that he may not be dispossessed from the property or for the maintenance of status quo. If this argument is accepted that when the Civil Court is seized of a case then the proceedings under Section 145Criminal Procedure Code cannot continue and are to terminate, then armed with the order of the Civil Court he may go to the Criminal Court and get the proceedings under Section 145Cr.P.C. dropped. After this he can get the civil suit filed by him dismissed and thus' perpetuate his wrongful possession.
19. The third type of cases, that is, maintenance of status quo during the pendency of the civil suit is a situation in which a Civil Court does not prima facie feel satisfied about any party being in possession of the subject-matter of the suit. In such cases when both parties claim possession, dangerous situation can develop with the anxiety of both or any one of them to get into actual possession. If the situation deteriorates then the police or the Magistrate cannot act as silent spectators to witness the breach of the peace. If they act in such circumstances and the Magistrate attaches the subject-matter of the dispute under Section145, Criminal Procedure Code then he would be acting to defend the maintenance of the status quo as ordered by the Civil Court.
20. As per decision of Apex Court in Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368; mere pendency of same matter between the same party in Civil Court does not mean ouster of the jurisdiction of the Executive Magistrate under Section 145 of Criminal Procedure Code. Magistrate can initiate proceedings under Section 145 of the Code to decide which party was in possession because the Civil Court while passing orders of the status quo shall ensure as to which was party in possession.
21. In the case of Shashi Bhushan Gupta & Another Vs. Mool Chandra Gupta & Others, 1996 Criminal Law Journal, 1943; this Court has held that pendency of the civil suit is no bar to the proceeding under Section 145 Cr.P.C.
22. From the above discussion, I am of the view that order of status quo passed by any Court either Civil or Revenue means that while passing orders of status quo, the Court was unsure as to which of the parties is in a possession.
23. In view of above discussion, the revisional court has erred in quashing the order passed by Sub Divisional Magistrate regarding attachment of the disputed property.
24. For ready reference Section 146 Cr.P.C. is reproduced below:-
"146.Power to attach subject of dispute and to appoint receiver.- (1) If the Magistrate at any time after making the order under sub-section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof:
Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908:
Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate-
(a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him;
(b) may make such other incidental or consequential orders as may be just."
25. The provision should clearly reveal that the Magistrate can attach the subject of dispute (1) if he considers the case to be one of emergency or, (II) if he decides that none of the parties was then in possession or, (III) he cannot decide which of them was in possession. This order of attachment remains in force until a competent Court decide the rights of the parties or until the Magistrate being satisfied that there is no longer any likelihood of breach of peace, withdrawal it.
26. In the instant case, the Magistrate while passing that attachment order has mentioned that it is a case of emergency. On the above ground also the order of the revisional court is erroneous. Learned Revisional Court's finding while mentioning that there is no evidence to show that there is likelihood of breach of peace at the time of deciding the criminal revision can not be upheld. It was not the duty of the revisional court to assess likelihood of breach of peace at the time of deciding the revision. It is the Magistrate and Magistrate only who has to satisfy himself on this aspect.
27. Considering the entire circumstances, this criminal revision is liable to be allowed and hereby allowed. The impugned order dated 22.12.2000 is quashed. Session Judge concerned is directed to decide criminal revision expeditiously and preferably within three month from the date when certified copy of this order is put up before him.
Order Date :- 17.12.2013
Subodh/- {Justice Arvind Kumar Tripathi (II)}