Patna High Court
Most. Shamrati Kuer And Ors. vs Janki Saran Singh on 5 December, 1980
Equivalent citations: 1981(29)BLJR263
JUDGMENT Uday Sinha, J.
1. This is an application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for quashing a proceeding under Section 145 of the Code. The petitioners are the members of the second party,
2. The facts essential for disposing of the present application are that on 1-3-1979 the first party (opposite party) filed Title Suit No. 60 of 1979 for declaration of title and for permanent injunction restraining the defendants (second party) from interfering with the Batai possession of the plaintiff. While the suit was pending, on 14-6-1979 a petition was filed by the first party (opposite party) for initiating a proceeding under Section 144 of the Code against Shamrati Kuer, Sakaldipa and Shailendra. On the basis of the said application a proceeding under Section 1 of the Code was initiated by the learned Magistrate on 17-6-1979. In answer to the notice issued in the said proceeding, cause was shown by the parties therein. After hearing the parties and considering the cause shown by them, the learned Magistrate by order dated 26-7-1979 initiated a proceeding under Section 145 of the Code. It may be stated here that till that time the second party (petitioners) had not filed their written statement in the title suit before the Civil Court. On 19-9-1979 the petitioners prayed to the learned Magistrate for calling for a police report in regard to the allegations and averments of the opposite party. On 23-9-1979 the police submitted a report favourable to the petitioners. It was stated therein that there was no apprehension of breach of the peace, as members of the second party were peaceful in possession. Having created the ground in their favour, the petitioners moved this Court by the present application for quashing the proceeding under Section 145 of the Code. Those are the facts upon which the present application has got to be decided.
3. From the narration of the facts above, it would be seen that the present proceeding was initiated on 26-7-1979. The facts in possession of the learned Magistrate while formed the foundation for the initiation of the present proceeding were the existence of a proceeding under Section 144 of the Code, cause shown by the parties and the argument of the lawyers in the proceeding under Section 144 of the Code. It is true that there was no police report before the learned Magistrate, but existence of a police report is not a must for initiation of a proceeding under Section 145 of the Code. Section 145 of the Code lays down that when an executive Magistrate is satisfied from a report of a police officer or upon other information , a Magistrate may draw up a proceeding. It is thus obvious that the satisfaction must be of the Magistrate. His satisfaction may be based either upon police report or upon any other material. A full Bench of this Court in S M. Yaqub and Ors. v. T.N. Basu and Anr. A.I.R. 1949 PaT. 146., and the Supreme Court in R. H. Bhutani v. Miss Mani, J. Demi and Ors. laid down that sufficiency of material for initiating a proceeding under Section 145 of the Code cannot be enquired into in revision. It is, therefore, not open to me to quash the proceeding on the ground that there was insufficient material before the learned Magistrate for initiating a proceeding. If there were no materials for initiation of the proceeding, this Court could well have quashed it, but this is not a case where there is no material. There were undoubtedly some material before the learned Magistrate. The want of police report showing existence of apprehension of breach of the peace cannot vitiate the proceeding. To crown all, there was a proceeding under Section 144 of the Code between the parties. The fact that such a proceeding was there, is prima facie good material to base satisfaction that there is apprehension of breach of the peace which calls for initiation of a proceeding under Section 145 of the Code. In my view, therefore, there is no substance in this submission that there was no apprehension of breach of the peace and the initiation of proceeding was, therefore, invalid.
4. The next submission urged on behalf of the petitioners is that the opposite party having gone to the Civil Court for adjudication of his claim in a title suit where he may get the most effective remedy, the initiation of the present proceeding under Section 145 of the Code is an abuse of the process of the law. Reliance has been placed by the petitioners upon Sia Saran Prasad Singh v. Jagdish Saran Prasad Singh and Ors. 1974 B.B.C.J. 383. in support of their proposition. Having heard learned Counsel for the petitioners, I am of the view, that there is rule of law to the effect that if the parties are agitating their dispute before a Civil Court, a proceeding under Section 145 of the Code is illegal or without jurisdiction. I am aware of some cases where a proceeding under Section 145 of the Code had been quished on the ground that a civil suit was pending between the parties. I have failed to appreciate how a Civil Court can take care of apprehension of breach of the peace. The only legal machinery to take care of breach of the peace is found in the Code of Criminal Procedure. The provisions relevant in this connection are Sections 107,144, 145 and 147 of the Code of Criminal Procedure It should, however, be kept in mind that the primary purpose of these preventive provisions is to prevent apprehension of breach of the peace. The primary purpose of a proceeding under Sections 145 or 147 of the Code is not the declaration of rights either of title or to possession, but the prevention of breach of the peace If this aspect of the matter is lost sight of we are likely to go astray, and the border line between Civil Court and Criminal Jurisdiction of Courts is likely to get blurred. Situations may arise where, during the pendency of a civil suit, the parties as a matter of strategy may decide to take the law in their own hands. One party may try to throw the other party out of possession asserting that it has always been in possession. I fail to see what the Civil Court can do about it to prevent the change of situation. Even if the Courts were to be asked to issue injunction upon erring party, the Civil Court, will find itself in difficulty in deciding which party is in the wrong and which in the right, as that might pre-judge the issue which has to be ultimately decided at the conclusion of the suit. A Civil Court would prefer to abstain in giving its finding during the pendency of the suit as to which party was in possession of the land, without which no order of injunction can be passed. That situation can be tackled only by a Criminal Court, The Criminal Court acting in terms of Section 144 of the Code may call upon the parties to refrain from going upon the land Since the order under Section 144 of the Code would be effective for only two months, a Magistrate may initiate a proceeding under Section 145 of the Code. If the initiation of a proceeding under Section 145 is not considered stringent enough to prevent breach of the peace, a Magistrate may attach the land in dispute in terms of Section 146 of the Code. In my view, therefore, the existence of a civil suit between the parties can be no bar in law to the initiation of a proceeding under Section 145 of the Code. No decision has been brought to my notice laying down that the pendency of a civil suit, partition or otherwise, is a bar to the initiation of a proceeding under Section 145 of the Code. Whether Section 145 should be resorted to or not, depending upon the nature of the apprehensions, will have to be judged by the Magistrate upon the facts and circumstances of each case. The Magistrate must be regarded as the best judge of the situation and not this Court. In my view, therefore, the decision in Sia Saran Prasad Singh's case (supra) was not correctly decided when it laid down as a proposition of law that the parties could get adequate relief in the form of injunction or by appointment of receiver.
5. The correct law of the subject, if I may say.so with respect, was laid down in State of Bihar v. Hari Mishra and Anr. , in paragraph 3. In regard to the legality or propriety of initiating a proceeding under Section 145 of the Code during the pendency of a civil suit, Anant Singh, J., with whom G.N. Prasad, J agreed laid down as follows;
The fact that any title suit pending, although it is disputed that the facts of the title suit were the same, will make no difference in the legal position. It will not absolve the Magistrate of the necessity of proceeding in the manner as provided in Sections 145 and 146 of the Code of Criminal Procedure. The pendency of a title suit between the same parties and with respect to the same properties is no bar to the launching of a subsequent proceeding under Section 145, Criminal Procedure Code, if there be any apprehension of breach of peace in the meantime, and once such a proceeding is drawn up, it has to be disposed of according to law, unless the Magistrate would decide to stay the proceeding till the disposal of the title suit. The decision in the title suit instituted before the drawing up of any subsequent proceeding under Section 145 of the Code of Criminal Procedure would not affect the decision in the subsequent proceeding under Section 145, Criminal Procedure Code, if the decision in such a proceeding came later than the decision in this title suit.
I am in complete agreement with the law laid down by Anant Singh, J. The observations of Anant Singh, J. were quoted with approval in Jalim Mian v. Raghunath Prasad 1978 P.L.J.R. 69., The decision of the Supreme Court in Sajjan Singh son of Jagan Nath Singh v. Sajjan Singh son of Bhairu Singh 1970 Unrep.,Judg., S.C. Vol. 2,p.75., is also apt. That was a case of a proceeding under Section 145 of the Code in which the lands had been attached in terms of Section 145(4) of the Code of Criminal Procedure, 1898. While the proceeding was pending, one of the parties instituted a civil suit for permanent injunction against the other party. A temporary injunction was granted by the Civil Court. Thereafter the plaintiff in the civil suit filed an application before the Magistrate for staying the said proceeding as well as for restraining the receiver appointed by the Criminal Court from taking possession of house. The learned Magistrate rejected the prayer to stay the proceeding on the ground of pendency of a civil suit. Revision before the High Court met a similar fate. The plaintiff thereafter moved the Supreme Court against the order of the Sub-Divisional Magistrate refusing to stay the proceeding under Section 145 of the Code as well as for restraining the receiver from taking possession over a house. Upon these facts the Supreme Court directed the Sub-Divisional Magistrate to dispose of the proceeding under Section 145 of the Code expeditiously. The matter of the receiver taking possession of the house was left to the discretion of the learned Magistrate. The Supreme Court in express words did not lay down any maxim of law, yet it did not quash or stay the proceeding under Section 145 of the Code. It can, therefore, certainly be deduced therefrom that a proceeding under Section 145 of the Code during the pendency of a civil suit is not unknown to law. For all these reasons, I am of the view, that the initiation of the instant proceeding under Section 145 of the Code was not barred on account of the pendency of the civil suit between the parties. Whether the pendency of a civil suit affects the existence of apprehension of breach of the peace is a matter to be considered and decided by a Magistrate. No uniform rule of law can be laid down. It will be judged from the circumstance of each case.
6. Treated in the background of the law laid down by a Division Bench of this Court presided over by Anant Singh, J. as also the decision of the Supreme Court referred to above, I am constrained to observe that Sia Saran Prasad Singh's case (supra) was not correctly decided and must be overruled.
7. For the reasons stated above, I am of the view that there is no merit in this application and it is dismissed accordingly. The learned Magistrate will now endeavour to dispose of the proceeding as expeditiously as possible.
Umesh Chandra Sharma, J.
8. I agree.