Allahabad High Court
Janjir Singh And Ors. vs State Of Uttar Pradesh And Ors. on 9 May, 1997
Equivalent citations: 1998CRILJ2089
Author: D.C. Srivastava
Bench: D.C. Srivastava
ORDER D.C. Srivastava, J.
1. This revision has been filed challenging the judgment and order dated 21-9-1996 passed by Special Additional Sessions Judge, Mirzapur whereby after allowing the revision he has set aside the order of the Sub Divisional Magistrate in proceedings under Section 145, Cr. P.C. and directed the said Magistrate to proceed in accordance with law and in the light of the direction and observation made in the judgment.
2. The facts giving rise to this revision are that proceedings under Section 145, Cr. P.C. were initiated in which the preliminary order was passed so also an order of attachment under Section 145(8), Cr. P.C. A revision was preferred against that order which was dismissed by the Sessions Judge, Mirzapur on 17-4-1995 with the observation that the orders were interlocutory order against which no revision can be maintained. In that order, Annexure-3 to the counter affidavit, the question of maintainability of proceedings under Section 145, Cr. P.C. in face of pendency of civil suit No. 662 of 1994 in respect of the same property was also considered. The learned Magistrate passed a final order dropping the proceedings under Section 145, Cr. P.C. in view of the pendency of civil suit. A revision was preferred against this order which was allowed under the impugned order.
3. Learned counsel for the revisionist has assailed the impugned order mainly on the ground that since the civil suit between the same parties in respect of the same property was pending in which the question of possession is to be investigated and injunction was refused to the plaintiff-opposite party No. 2 hence criminal proceedings under Section 145, Cr. P.C. could not be continued and the order of the learned Magistrate is justified whereas the order of the revisional Court being illegal deserves to be set-aside.
4. In order to appreciate this contention based on the 3 cases cited by the learned counsel for the revisionist certain facts are necessary to be mentioned.
5. The original suit No. 662 of 1994 was filed by Prem Chandra-opposite party No. 1 against the revisionist and others. It was a suit for cancellation of sale deed and also for permanent injunction as is disclosed from Annexure-1 to the counter affidavit. Proceedings under Section 145, Cr. P.C. were initiated and preliminary order was passed on 7-3-1995. An application for temporary injunction was moved in the original suit aforesaid vide Annexure 1 to the petition in which the prayer was that the defendants be restrained during the pendency of the suit from forcibly taking possession of the entire land in dispute and further not to interfere with 1/3 share of the plaintiff over the land in dispute and not to change the nature of the land in dispute. This application was disposed of not on merits but with the consent of the parties vide order dated 28-11-1994 Annexure 2. The translation of the aforesaid order is as follows:-
Parties are agreeable not to transfer the land in dispute. Therefore, on the basis of the consent of the parties, the parties are directed not to transfer the land in dispute to any one till the disposal of the suit. Application (6-c) is disposed of accordingly.
This order was interpreted by the learned counsel for the revisionist as amounting to rejection of injunction order claimed by the plaintiff-opposite party No. 1 However, this contention cannot be accepted. This order can safely be interpreted to mean an order with the consent of the parties simply to prevent transfer of the land in dispute by the parties during the pendency of the suit to any one else. This prayer was not made in application for temporary injunction (Annexure-1) nor in this order there is any mention that the application (6-C) Annexure-1, was decided on merits. There is no observation or finding regarding prima facie case, balance of convenience and irreparable loss and injury. There is also no finding that these conditions could not be established by the plaintiff-opposite party No. 1. Consequently, the order, Annexure-2 cannot be interpreted to mean that question of possession was decided by the civil Court against the plaintiff-opposite party No. 1. on 28-11-1-994 nor it cat) be interpreted in the manner that the injunction prayed for was impliedly refused. On the other hand, the only reasonble interpretation of this order is that nothing was decided in terms of application, Annexure-1, rather the said application was decided in terms of the consent of the parties not to transfer the land in dispute to anyone. Consequently, it cannot be held that the Civil Court at any stage either prior to or during the pendency of the proceedings under Section 145, Cr. P.C. decided the question of possession in one way or the other nor it can be said that injunction was refused on merits and the plaintiff-opposite party No. 1 was not granted any injunction. If this is so then the only inference which can be drawn from this order is that neither any injunction was refused to the plaintiff nor the question of possession was decided against the plaintiff and these questions are yet to be decided by the competent Civil Court.
6. The next question is whether on these facts proceedings under Section 145, Cr. P.C. could be dropped. Unless the question of possession was decided one way or other or injunction was refused to the plaintiff or was granted to the defendant against the plaintiff bar to initiate and continue the proceedings under Section 145, Cr. P.C. could not be attracted. The cases cited by the learned counsel for the revisionist are distinguishable on facts.
7. In, Ram Raj v. State of U.P. 1995 U.P. Cr. R 745, the facts were all together different. In this case, the Civil Court namely the Munsif granted injunction in favour of the plaintiff. It was on these facts held that the proceedings under Section 145, Cr. P.C. could not be initiated. No such injunction was granted in the suit between the parties of this revision nor any such injunction was refused expressly or impliedly by the learned Munsif.
8. The case of, Jameel Khan v. Mujammil Khan 1995 U.P. Cr. R 356 is also distinguishable. In this case pendency of civil suit between the same parties in respect of the same land was admitted. It was also admitted to the parties that application for ad-interim injunction was rejected by the Civil Court. On these facts it was held that proceedings under Section 145, Cr. P.C. cannot be proceeded. In the case before me the facts are otherwise. Here it is not admitted that injunction application was refused. On the other hand, the contention of the learned counsel for the opposite parties has been that injunction application was not considered on merits nor the prayer made in the injunction application were expressly or impliedly refused and what was granted by the trial Court was not even prayed for either in the civil suit in the nature of permanent relief or in the injunction application as temporary relief. As such this case also distinguishable.
9. The case of, Jaunamal alias Devandas v. State of Madhya Pradesh, AIR 1988 SC 1973, is likewise distinguishable.
10. Mere pendency of civil suit is no bar to the initiation of proceedings under Section 145, Cr. P.C. A suit might have been pending and if the question of possession was not decided one way or other either prior to initiation of criminal proceedings or during the pendency of criminal proceedings, the criminal proceedings can continue if there is iminent apprehension of breach of peace on account of dispute of possession over the land in dispute. Likewise, subsequent institution of civil suit will also be no bar to proceedings under Section 145, Cr. P.C. unless, of course, in the subsequent suit, the question of possession has been determined prior to the culmination of proceedings under Section 145, Cr. P.C. These situations have not yet arisen in the present case before, me hence the impunged order does not suffer from any illegality. The proceedings could not be dropped and the revisional Court committed no error of law in setting aside the order and remanding the case for fresh disposal in accordance with law. The revision in thus, devoid of any merit and is bound to fail.
11. The revision is hereby dismissed. Stay order dated 29-10-1996 is vacated.