Patna High Court - Orders
Ram Bihari Rai & Ors. vs The State Of Bihar & Ors. on 25 April, 2013
Author: V Nath
Bench: V Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.40610 of 2011
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1. Ram Bihari Rai S/O Late Jagarnath Rai R/O Vill.- Chilahari, P.S.-
Dumraon, District- Buxar.
2. Arun Kumar Rai S/O Late Ram Chander Rai R/O Vill.- Chilahari, P.S.-
Dumraon, District- Buxar.
3. Awadhesh Kumar Rai S/O Late Ram Chandra Trai R/O Vill.- Chilahari,
P.S.- Dumraon, District- Buxar.
4. Dilip Kumar Rai S/O Late Ram Chander Rai R/O Vill.- Chilahari, P.S.-
Dumraon, District- Buxar.
.... .... Petitioners
Versus
1. The State Of Bihar & Ors.
2. Ajay Singh @ Ajay Rai, Son of Late Shree Hari Rai, Resident of
village-Chilahari, P.O.-Chilhari, P.S.-Dumraon, Distrcit-Buxar.
--------------------------- Respondents
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Appearance :
For the Petitioner/s : Mr. Brij Mohan Kumar Singh, Adv.
For the Opposite Party/s : Mr. Rajendra Prasad Nat, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE V NATH
ORAL ORDER
4 25-04-2013Heard the learned counsel for the parties.
2. This application has been filed for quashing the order dated 05.04.2011 passed by the Learned Additional District Judge F.T.C. 1st, Buxar in Cr. Revision No.41/03 whereby he has allowed the revision application and set aside the order dated 05.02.03 passed in a proceeding under Section 145 Cr.P.C. by the Sub Divisional Magistrate, Dumraon by which the proceeding was dropped.
3. From the records, it appears that there is a dispute between the parties with regard to title and possession over the land in question. Earlier a proceeding under Section 144 Cr.P.C 2 Patna High Court Cr.Misc. No.40610 of 2011 (4) dt.25-04-2013 2/6 vide case no. 699 of 2002 was initiated before the Sub-Divisional Magistrate, Dumraon on the petition filed by Sri Hari Rai. However, by order dated 28.11.2002, the said proceeding was dropped in view of the pendency of T.S. No. 136/02 between the parties with regard to the disputed land involving questions of title and possession over the same. Thereafter, the present opposite party no.2 who is the son of Sri Hari Rai @ Sri Hari Singh filed another petition alleging breach of peace due to dispute for possession over the same land and the proceeding vide Case No. 895/(M)/02 under Section 145 Cr. P.C. was initiated by order dated 28.11.02 before the Sub-Divisional Magistrate. The present petitioners, who were impleaded as second party in the said proceeding, raised objection to the maintainability of the proceeding, in view of the pendency of the civil suit i.e. T.S. 136 of 2002 between the parties for the disputed land. By order dated 05.02.03, the Sub Divisional Magistrate after hearing the parties allowed the prayer and dropped the proceeding. The opposite party no.2, however assailed the said order by preferring Cr. Revision No. 41/03 before the Sessions Judge and by the order impugned in the present application, the revision application has been allowed setting aside the order of the Sub Divisional Magistrate.
3 Patna High Court Cr.Misc. No.40610 of 2011 (4) dt.25-04-20133/6
4. Mr. Singh, the learned counsel for the petitioners has submitted that the parallel proceeding under Section 145 Cr.P.C. cannot be permitted to go on in view of the pending civil suit between the parties for title and possession over the land in question. The learned counsel has placed the plaint of T.S. No. 136/02, annexed at Annexure-2 series with the application, from which it appears that Sri Hari Rai alongwith his two brothers have filed the said suit for declaration of their title over the suit land described in schedule 2 of the plaint and for declaration that the survey entries for land mentioned in schedule 3 is wrong. The prayer has also been made for grant of interim injunction restraining the defendants from dispossessing them during the pendency of the suit. The learned counsel has also relied upon the decision of the Apex Court in the case of Amresh Tiwary Vs Lalta Prasad Dubey & Anr 2001(1) PLJR (SC) 135 in support of his contention that 145 Cr.P.C. proceeding between the same parties cannot be allowed to continue in view of the pendency of the civil suit for the same land between the same parties.
5. The learned counsel for the opposite party no.2 however has submitted that the petition for initiation of 145 Cr.P.C. has been filed by the opposite party no.2 who is not the plaintiff in the suit. The learned counsel has tried to draw a distinction on that 4 Patna High Court Cr.Misc. No.40610 of 2011 (4) dt.25-04-2013 4/6 basis on the principle as laid down by the Apex Court in the case of Amresh Tiwary (supra). However, it has not been disputed that the said civil suit is pending with the aforesaid reliefs and the father of the opposite party no.2 is the plaintiff no.2 in the suit. The learned counsel has further propounded that as no injunction has been granted uptil now in the said suit, therefore, the impugned order passed by the revisional court taking the view that the proceeding under Section 145 Cr.P.C. is made to only prevent breach of peace cannot be held to be illegal.
6. From the materials on record and after considering the submissions of the learned counsel for the parties, it is manifest that the dispute between the parties in the proceeding under Section 145 Cr.P.C. proceeding is with regard to the land which is also subject matter of T.S.No. 136/02 wherein the question of right, title and interest over the said land is under determination with further relief for injunction. It has not been disputed the present opposite party no.2 is son of the plaintiff no.2 Sri Hari Rai. It is nowhere the case of the opposite party no.2 that his claim over the suit land is independent of the title of his father rather it appears from the order dated 05.02.03 passed in 145 Cr.P.C in Case No.895/02 that the assertion of the present opposite party no.2 is similar to that of Sri Hari Rai . In this view of the matter I 5 Patna High Court Cr.Misc. No.40610 of 2011 (4) dt.25-04-2013 5/6 do not find any substance in the submission of the learned counsel for the opposite party no.2 that his case should be distinguished on the ground that he is not a party in the suit.
7. The Apex Court has delved into the similar issue in the case of Ram Sumer Puri Mahant Vs. State of U.P., AIR 1985 SC 472 and has laid down that 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 a position to approach the civil court for interim orders such as injunction or appointment of receiver for protection of property. The same view has been reiterated and clarified further by the three judges bench of the Apex Court in the case of Amresh Tiwary Vs Lalta Prasad Dubey 2001(1) PLJR (SC) 135 where it has been laid down that in cases where civil suit is for possession or for declaration of title for the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court, the proceeding under Section 145 Cr.P.C. should not be allowed to continue. Tested on the anvil of this principle, it is manifest that the revisional court has decided the matter illegally and inconsistently with this principle. In view of the pendency of the civil suit as aforementioned between the same parties, the order of the Sub-Divisional Magistrate dropping the proceeding 6 Patna High Court Cr.Misc. No.40610 of 2011 (4) dt.25-04-2013 6/6 did not suffer from any error or illegality.
8. In the ultimate eventuate, the quashing application is allowed and the impugned order passed by the revisional court is set aside.
(V Nath, J) Nitesh/-