Patna High Court
Mohan Lal Kuer vs State Of Bihar And Ors. on 15 June, 1999
Equivalent citations: 1999CRILJ4249
Author: P.K. Sarkar
Bench: P.K. Sarkar
ORDER P.K. Sarkar, J.
1. This criminal Misc. application under Section 482, Cr.P.C. has been filed for quashing the order dated 24-8-90 passed by the Executive Magistrate Naugachia in Misc. Case No. 464/89 whereby he dropped the proceeding under Section 145, Cr.P.C. and also for quashing the consequential order passed in criminal revision bearing No. 312/90 whereby Addl. Sessions Judge, Naugachia confirmed the aforesaid order of the Executive Magistrate.
2. The brief facts leading to this application are as follows :-
An application was filed by the petitioner, Mohan Lal Kuer before SDM Naugachia to the effect that there was an apprehension of breach of the peace with respect to the possession over the land appertaining to khata No. 1026 old, 2988 new of KhasraNo. 4393 old, 5859 new area 0.08 acres. Accordingly, on 1-7-89, a proceeding under Section 144, Cr.P.C. was initiated and it was registered as Misc. Case No. 362M/89 and in the said proceeding Chandra Shekhar Kuer (opposite party No. 3) was member of the second party. Both the parties were restrained over the land in question. However, on 20-6-89 Officer Incharge, Gopalpur police station submitted a report before SDM Naugachia for initiation of a proceeding under Section 188, IPC stating that Chandra Shekhar Kuer (opposite party No. 3) violated the above order passed under Section 144, Cr.P.C. and had gone over the land in dispute with deadly weapon along with some other persons. On 12-9-89 SDM, Naugachia dropped the aforesaid case No. 362M/89 under Section 144, Cr.P.C. observing inter alia therein that a title suit No. 205/71 is pending in the Court of Addl. Sub Judge, Naugachia in which the first party and the vendor Shyam Tara Devi and others are defendants but in the said order it had been observed that there was apprehension of breach of the peace and as such a proceeding under Section 107, Cr.P.C. should have been initiated to maintain peace and tranquillity. Petitioner-first party filed an application before the Executive Magistrate, Naugachia for initiation of the proceeding under Section 145, Cr.P.C. against Smt. Godavari Devi. Both the parties were directed to appear and file show cause. After hearing both the parties Sri. R.M. Ram, Executive Magistrate, Naugachia was satisfied that there was an apprehension of breach of peace with regard to the land in question and hence he initiated proceeding under Section 144, Cr.P.C and ordered for issuance of notice to the parties and on 5-12-89, the member of first party filed an application before the Executive Magistrate, Naugachia to attach the disputed land under Section 146, Cr.P.C. A report was called for from the Officer Incharge of Gopalpur police station, who submitted his report on 12-12-89 before SDM, Naugachia stating inter alia that first party was claiming to be in possession over the land in question as his grandfather had purchased the land in dispute as such Shyam Tara Devi had no right, title and interest over the land in question and as such she has illegally sold the land in favour of Smt. Godavari Devi (opposite party No. 2). A proceeding had also been initiated under Section 144, Cr.P.C. as the members of second party wanted to build a hut on the land. Both the parties were restrained but the member of the second party disobeyed the prohibitory order passed under Section 144, Cr.P.C and thus, report has been submitted for initiation of proceeding under Section 188, IPC against them. On 14-12-89 on consideration of the report (annexure-3) and also considering the situation and to prevent the bloodshed, SDM, Naugachia attached the land in question under Section 146, Cr.P.C. and further Officer Incharge of Gopalpur Police Station was also directed to take steps to maintain law and order. The member of the first party-petitioner filed a written statement stating his case before the Court. However, member of the second party did not file any written statement. On 23-3-90 the members of the second party filed an application in the Court of SDM, Naugachia stating therein that title Suit No. 205/71 relates to the share of Shyam Tara Devi, his vendor who is defendant 2nd party in the said suit. The revisional survey records of right stands in the name of said Shyam Tara Devi and the sale deed executed by her in favour of members of the 2nd party will be presumed an unimpeachable document and no negative inference can be drawn against the said documents. In the meantime, proceeding under Section 144, Cr.P.C. was converted into a proceeding under Section 145, Cr.P.C. The matter was heard by Sri. B. Mehta, Executive Magistrate, Naugachia and he came to the conclusion that there was apprehension of breach of peace but he observed in his order dated 24-8-90 in Misc. Case No. 464/89 while dropping the proceeding under Section 145, Cr.P.C. stating that there cannot be a parallel proceeding of a civil suit and a criminal proceeding. The petitioner being aggrieved and dissatisfied with the said order preferred a criminal revision before the Court of Sessions Judge, Bhagalpur which was numbered as Cr. Revision No. 312/90. The said criminal revision was transferred to the Court of 7th Addl. Sessions Judge, Bhagalpur and ultimately, the same was heard by Sri A. Kumar, Addl. Sessions Judge, Naugachia who by order dated 7-9-92 dismissed the revision application and confirmed the order of the Executive Magistrate.
3. The petitioner further contended that during the pendency of the said revision application before Addl. Sessions Judge, Naugachia another proceeding under Section 144, Cr.P.C. was once again initiated which was numbered as case No. 38M/92 and both the parties were noticed to file show cause. Parties filed show cause and the SDO Naugachia once again dropped the proceeding on 23-8-92 on the same ground of pendency of title suit. It is further stated that Shyam Tara Devi, defendant No. 6 along with defendant Nos. 7 to 9 filed written statement in title suit No. 205/71, stating therein inter alia that those defendants are entitled to 8 annas share in all joint family property but defendant 1st party are interfering with and putting obstruction in peaceful enjoyment of the defendant on the lands given to them by way of temporary provisional family arrangement in the year 1952, also. In the said written statement, a list of lands was annexed as per her statement made in the written statement but the disputed land measuring 0.08 acres appertaining to khata No. 2988 (new) 1026 (old) kheshra No. 5859 (new) 4393 (old) does not find place in the said list. Thus defendant No. 6 was not entitled to transfer any land by executing a sale deed in favour of the members of the 2nd party during the pendency of title suit No. 205/ 71. There was also a dispute in the aforesaid title suit regarding appointment of receiver. It is further stated that 2nd party is not party in title suit No. 205/71. In that view, the order passed by the SDM, Naugachia or Addl. Sessions Judge, Naugachia are illegal, arbitrary and contrary to principle of law and deserves to be set aside. Accordingly, petitioner has prayed that the impugned order passed by the Executive Magistrate, Naugachia in Misc. case No. 464/89 and is affirmed by the Addl. Sessions Judge, Naugachia in Cr. Revision No. 312/90 deserve to be set aside.
4. Counter affidavit was filed on behalf of opposite party Nos. 2 and 3 alleging therein inter alia that the application under Section 482, Cr.P.C. filed by the petitioner is barred by Section 397 (3), Cr.P.C. It is further stated that the petitioner by securing contain collusive police reports, in order to harass opposite party No. 2 and 3, got initiated for filing a case under Section 188, IPC against opposite party No. 3. However, as there was no truth in the said reports, no complaint was filed against opposite party No. 2. As a matter of fact, SDM, Naugachia by his order dated 15-9-89 held that the structure of the house existing on the disputed land was pretty old and hence the allegation that after the service of notice of the proceeding under Section 144 Cr.P.C. this opposite party No. 3 constructed some structure is absolutely false. It is further contended that the disputed land was in possession of Shyam Tara Devi and her husband's sister and they were recorded tenants in the record of rights wherein the house and sahan are also mentioned as in their possession. In the year 1971, Smt. Anita Devi and others all daughters of Medani Kuer filed title suit No. 205/71 against Smt. Laija Devi wife of late Priyabratta Kumar and others including the petitioner who was defendant No. 3 for partition. The said suit is still pending in which question of title and possession both are involved. During the pendency of the suit a petition was filed for appointment of receiver. The trial Court refused to appoint receiver in a suit for partition. Plaintiff went in appeal before the Hon'ble High Court being Misc. Appeal No. 249/73 and this Court by judgment dated 7-11-74 allowed the appeal and appointed the 2nd party to be receiver of the property in possession of each of them. It is also stated that the land has been recorded in the revisional survey published in January, 1978 in the name of Shyam Tara Devi and another vendors of those opposite parties. No criminal Court in a proceeding under Section 145 Cr.P.C. can declare possession against the order of the Hon'ble High Court passed in Misc. Appeal No. 249/73 and the record of rights which were prepared subsequently in the aforesaid order. Matter is still subjudice and is pending before the concerned civil Court. Thus, a parallel proceeding cannot be allowed to continue. It is submitted that the petitioner is at liberty to approach the civil Court for interim order also for adequate protection. It is, therefore, submitted that the order of the SDM dated 12-9-89 whereby he considered it desirable not to continue the proceeding was perfectly justified. The petitioner again filed petition for initiation of a proceeding under Section 144, Cr.P.C. Notices were issued in that proceeding also but it is clear that there was no necessity for further proceeding under Section 144, Cr.P.C. There opposite parties are claiming over the land and submitted that the application of the petitioner deserves to be dismissed.
5. On a careful perusal of the case of both the parties and also submission made by their respective lawyers, it is clear that there are long pending litigation between the parties on the question of possession of the land for which question of breach of peace arose from time to time and different proceedings under Sections 144,145 and 107, Cr.P.C. were initiated between the parties and subsequently, proceeding under Section 145 Cr.P.C. (sic) vide impugned order by the learned Executive Magistrate, Naugachia was dropped on the ground that a title suit is pending before the Civil Court bearing Title Suit No. 205/71 in which both the possession and title would be considered by the Civil Court. Both the learned Executive Magistrate, Naugachia and the learned Additional Sessions Judge in their respective orders, hold that parallel civil litigation cannot be allowed because the same may give rise to multiplicity of litigations which is not in the interest of the parties nor in public interest. The learned Addl. Sessions Judge, therefore, find that the order of the Executive Magistrate whereby he dropped the proceeding under Section 145, Cr.P.C. to be perfectly in order and did not interfere in the matter and dismissed the criminal revision petition.
6. Learned counsel for the petitioner submitted that from the statements of the parties, it is apparent that there are regular disputes between them in respect of the disputed lands, which had given rise to possibility of serious breach of peace as a result different proceedings under Sections 107, 144 and 145, Cr.P.C. were initiated from time to time. It is further stated that these proceedings under Section 144 or 145, Cr.P.C. should be viewed from a different angle and requires prohibitory order to contain them. The proceeding in the Civil Court for the title and possession are separate matter and the same cannot take care of the dispute leading to disturbance of public peace and tranquillity. Thus, only because a title suit is pending the proceeding under Section 145, Cr.P.C. cannot be dropped. In this connection, learned counsel has referred to a decision reported in 1995 Pun LR (SC) 40: (1994 Cri LJ 2117) (Prakash Chand Sachdeva v. State) wherein it has been held that criminal proceeding under Section 145, Cr.P.C. should not be dropped only on the ground that civil suit is pending. In that view of the matter, it is submitted that the order of the Executive Magistrate, Naugachia and also the order passed by the Addl. Sessions Judge, Naugachia in the revision petition against that order are liable to be quashed.
7. Learned counsel for the opposite party submitted that subject matter in the case referred to above by the petitioner is completely different from the present case. In that case, Supreme Court has clearly observed that proceeding under Section 145, Cr.P.C. should not be dropped on the ground that civil suit is pending where the title is not a question and only dispossession is involved in that suit. But in the present case, both the title and possession of the disputed land have been challenged. Learned counsel for opposite party has also relied upon a decision of Division Bench of this Court reported in 1995 BLJ (1) 254 (Smt. Vidya Devi v. Arjun Prasad) wherein while disposing of that application, this Court observed as follows:-
Thus, it is well as settled law that if there is a dispute with regard to the title or right to possession between the parties and the matter has gone to Civil Court and the question of possession is being examined by the Civil Court, in that case, the continuance of proceeding under Section 145 of the Code with regard to the suit land and between the same parties is not permissible. The party may approach the Civil Court for grant of injunction or appointment of receiver. Both the proceedings should not be allowed to continue as it amounts to wasting of public time for unnecessary litigations. It is also not in the interest of the parties. However, in case, where the title is not in dispute and only question of possession is in dispute between the parties, then proceeding under Section 145 of the Code will continue even if the civil suit is pending between the parties. In our concluded view the law laid down by the Division Bench of this Court in the said case that the pendency of the title suit is not a ground for quashing the proceeding under Section 145 of the Code is no longer a good law.
8. From the counter affidavit filed on behalf of the opposite party Nos. 2 and 3, it is clear that title suit No. 205/71 is pending in which question of title and possession both are involved. Moreover from the submissions of the parties, it appears that the matter is keenly contested by the parties and the matter of receivership was also raised which was ultimately decided in the High Court vide Misc. Appeal No. 249/73 disposed of on 7-11-74. In that view of the matter, it is submitted that division bench decision of this Court referred to above is more applicable in this case than the decision referred to by the petitioner. I find that there is much substance in the submission of the learned counsel for opposite party.
9. Accordingly, I find there is no discrepancy/ irregularity in the order of the learned Addl. Sessions Judge, Naugachia dated 7-9-92 passed in Cr. Revision No. 312/90 for which interference under Section 482, Cr.P.C. is necessary. This application is, therefore, dismissed.