Madras High Court
A.Shantha vs The Tahsildar And Executive Magistrate on 25 March, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.03.2014 CORAM: THE HON'BLE Ms. JUSTICE K.B.K.VASUKI Crl.R.C.No.1032 of 2013 and M.P.No.1 of 2013 A.Shantha W/o.K.S.Atmanathan .. Petitioner Vs. 1.The Tahsildar and Executive Magistrate, Mylapore Triplicane Taluk, Chennai 600 028. 2.Shantha Nageswaran @ Kamakshi 3.Inspector of Police, E4 Police Station, Abhiramapuram, Chennai 600 018. .. Respondents Criminal revision is filed under Sections 397 and 401 of the Code of Criminal Procedure, praying to call for the records of the first respondent in A2/32051/2012 dated 25.7.2013 and set aside the same. For Petitioner : Mr.V.Ramesh For Respondents : Mr.C.Iyyapparaj, GA(Crl.Side)(R1&R3) Mr.K.Azhagarasan (R2) O R D E R
The petitioner herein, who is A party in Section 145 Cr.P.C proceedings, has come forward with this Criminal revision to set aside the order dated 25.7.2013 passed by the first respondent Tahsildar-cum-Executive Magistrate, Mylapore-Triplicane, Chennai-28.
2.The proceedings under section 145 Cr.P.C arose out of the complaint and FIR in Cr.No.1290/2012 dated 12.12.2012 registered by the Sub Inspector of Police, E4 Abhiramapuram Police Station, Chennai against the petitioner herein as A party and the second respondent herein as B party. The present complaint is the continuation of the complaint and FIR in Cr.No.1289/2012 dated 12.12.2012 registered on the basis of the complaint given by the petitioner herein, who is A party in FIR in Crime No.1290/2012. The complaint and FIR in Crime No.1289/2012 proceeds as if one Thirupathi and others trespassed into her house bearing Door No.11, Shriram Colony, Abhiramapuram, Chennai in the absence of inmates, by breaking open the lock and attempted to put up shed at the backyard of the house. Whereas, the complaint and FIR in Crime No.1290/2012 refers to few more complaints by rival claimants in respect of the same property and the nature of the dispute between the parties, explained in detail. It also refers to the proceedings in OP.No.68/2009 in respect of the Will purportedly executed by the original owner Ramamoorthy etc. On the basis of the complaints so received, more than one FIR was registered in the respect of the same property. In pursuance of the registration of more than one complaints in respect of the same property, the Sub Inspector of Police thought it fit to refer the same to Tahsildar to initiate proceedings under section 145 Cr.P.C. Pursuant to the same, the second respondent herein also filed OS.No.7796/2012 on the file of V Assistant City Civil Court, Chennai against the petitioner herein and her daughter for the relief of injunction. On receipt of the complaint from the Inspector of Police, E4 Police Station, Abhiramapuram, Chennai, the first respondent initiated section 145 Cr.P.C proceedings and sent notice to the parties for enquiry. The same was replied by the petitioner herein through legal notice, which states that A party is the absolute owner and in possession of entire property and the complaint lodged by B party before Land Grabbing Cell was closed as the issue involved is civil in nature and B party having approached the civil court, the proceeding under section 145Cr.P.C shall be closed, as the right of the parties can be determined only by the competent civil court. In spite of the same, the first respondent has passed the order, thereby deciding the title in respect of the property in question in favour of the second respondent on the basis of the Will dated 31.7.2009 which was probated in OP.No.68/2009. Aggrieved by the same, A party is now before this court by way of the present criminal revision.
3.The learned counsel for the petitioner has seriously questioned the propriety of the first respondent Tahsildar-cum-Executive Magistrate in passing the impugned order and validity of one such order mainly on the ground that the first respondent exceeded its jurisdiction in proceeding with section 145 Cr.P.C proceeding pending civil suit for adjudication of the right of the parties and passed the impugned order, without recording his subjective satisfaction regarding breach of peace and dispute based on the police report and rendered his finding regarding title without any jurisdiction.
4.Per contra, the learned Government Advocate (Crl.Side) appearing for the respondents 1 and 3 and the learned counsel for the second respondent would, by relying on the earlier proceedings relating to genuineness of the Will and other documents, defend the impugned order.
5.Heard the rival submissions made on both sides.
6.Admittedly, there is serious dispute in respect of the property in question between A and B parties and there are civil and criminal proceedings pending against each other. The number of criminal complaints received in respect of the same property compelled the Inspector of Police to refer the matter before the first respondent for initiating proceedings under section 145 Cr.P.C. However, the first respondent before initiating and continuing the proceedings under section 145 Cr.P.C, failed to consider various factual and legal aspects, which are as follows:
7.As on the date of initiation of proceedings under section 145 Cr.P.C, OS.No.7796/2012 was pending on the file of V Assistant Judge, City Civil Court, Chennai. Though the suit has been filed by B party/the second respondent herein, the same was seriously contested by A party and her daughter. The suit was filed for the relief of permanent injunction in order to protect the possession and enjoyment of the property by B party. Though it is sought to be argued by the learned counsel for the petitioner that B party in pursuance of the impugned order, withdrew the suit, we are only concerned with the state of affairs during the pendency of the proceedings under section 145 Cr.P.C.
8.It is well settled law in the authority of the Hon'ble Supreme Court reported in (1985) 1 SCC 427 (Ram Sumer Puri Mahant v. State of UP and others) that parallel proceedings during pendency of the civil proceedings involving the question of possession of the same property, cannot be initiated under Section 145 Cr.P.C. It is equally well settled law in the decision reported in 1991 (2) MWN (Cr) H.C.1 (K.Selvaraj v. State) that mere filing of a civil suit cannot totally bar initiation or continuation of proceedings under section 145 Cr.P.C. Further, there are catenna of decisions of the Hon'ble Apex Court and our High Court to the effect that when the civil litigation is pending between the parties, wherein the question of title and possession involved and when the parties are in a position to approach the civil court for interim orders, such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute, there is no justification for initiating a parallel criminal proceedings under Section 145 Cr.P.C., which are follows: (i)(1985) 1 SCC 427 (Ram Sumer Puri Mahant v. State of UP and others (ii) (2000) 4 SCC 440 (Amresh Tiwari v. Lalta Prasad Dubey and another) (iii)2013 (2) CTC 347 (State of A.P and others v. Star Bone Mill & Fertiliser Co.) (iv) 2002-2-LW (Crl) 695 (Justice A.Ramamurthy, Madras High Court) (V.Jeyachandran @ Chandran v. the Sub Divisional Magistrate and Revenue Divisional Officer, Padmanabhapuram, Kanyakumari District and others) (v) 2010 (2) MWN (Cr) 480 (Ganesan and others v. The Revenue Divisional Officer cum Sub Divisional Magistrate, Tiruchengode, Namakkal District and others) and (vi)2012 (1) MWN (Cr) 458 (Vishwanathan and others v. The Revenue Divisional Magistrate, Devakottai.
9.The Hon'ble Supreme Court in the decision reported in (1985) 1 SCC 427 (cited supra) is of the firm view that parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, 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 adequate protection of the property during the pendency of the dispute. The Hon'ble Supreme Court further observed that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. The Hon'ble Supreme Court, by holding so, quashed the order of the learned Magistrate, by which the proceedings under Section 145 Cr.P.C was initiated, with liberty to the parties to approach appellate Court in the civil litigation for appropriate interim orders, if so advised in the event of the dispute relating to possession.
10.The Hon'ble Supreme Court in paras 12 and 13 of the decision reported in (2000) 4 SCC 440 (cited supra) extracted the observation made in the authority reported in (1985) 1 SCC 427 (Ram Sumer Puri Mahant v. State of U.P.) and applied the same view that when the parties can approach the civil court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e., Section 145 proceedings should not continue.
11.The learned Brother Judge of our High court, in 2002-2-LW (Crl) 695 by following the same view, held that when once the civil court had taken note of the dispute between the parties with reference to the declaration or possession, then it is not open to the Executive Authority to entertain any application and to invoke Section 145 Cr.P.C. Even otherwise there should be a report from the competent police officer alleging that there was any threat to law and order or there is any possibility of breach of peace in that area, where the immovable property is located. Another learned brother Judge of our High Court, in 2010 (2) MWN (Cr.) 480 (cited supra) is of the view that the order of Executive Magistrate prohibiting both the parties from using properties and directing to maintain status quo is, pending enquiry not legally sustainable. In the same judgment, earlier decision of this court reported in 1992 LW (Cri) 579 (G.Sethurman and two others v. Meenakshi Ammal and two others) was referred to, which makes it abundantly clear that section 145 (4) Cr.P.C enables both the parties to adduce oral and documentary evidence and the Magistrate is bound not only to receive all such evidence as may be produced, but he is also empowered to take such further evidence if any, as may think necessary. After the production of the oral evidence, the Magistrate will have to decide the actual or factual possession, the evidence placed before him, on the date when the preliminary order had been passed, which necessarily implies the discussion of the evidence placed before him. The learned brother Judge, after referring the view expressed in the earlier decision, set aside the impugned order, which in the case decided therein do not at all indicate with reference to any oral or documentary evidence in deciding the question of possession.
12.The Hon'ble Apex Court in the judgment reported in (2002) 3 SCC 700 (Ranbir Singh v. Dalbir Singh and others) upheld the order of the High court quashing the preliminary order passed by the Sub Divisional Magistrate under section 145 (1) Cr.P.C for want of any finding on breach of peace relating to the property in question and the order of attachment of the property under section 146(1) Cr.P.C and granted leave to the parties to approach the civil court for appropriate order, with further direction issued to the civil court to deal with the application for interim order without being influenced by the observations made /findings recorded by the High Court in the impugned judgment.
13.In my considered view, such views expressed by the Hon'ble Supreme Court and our High Court are squarely applicable to the facts of the present case. If the same are applied herein, it would lead to a legal inference that the Magistrate is empowered to deal with the question of possession that too on the particular date of the order under section 145(1) and dispossession of the same within 2 months prior to the date of the proceedings under Section 145. When that being so, the learned Magistrate exceeded its jurisdiction in rendering any finding on the question of title which lies within the domain of the civil court. As rightly argued by the learned counsel for the petitioner, the very initiation of the proceedings under Section 145 Cr.P.C without rendering any finding for breach of peace, by applying the view of the Hon'ble Apex court renders the impugned order perse illegal and contrary to law, thereby warranting interference by this court.
K.B.K.VASUKI, J.
rk
14.Viewing from any angle, the impugned order is legally unsustainable and the same is hence liable to be set aside.
15.In the result, the criminal revision is allowed by setting aside the impugned order dated 25.7.2013 passed by the first respondent, with liberty given to the parties to approach the civil court for adjudication of their right. Consequently, connected Miscellaneous Petition is closed.
Index:Yes/No Internet:Yes/No rk 25.03.2014 To 1.The Tahsildar and Executive Magistrate, Mylapore Triplicane Taluk, Chennai 600 028. 2.Inspector of Police, E4 Police Station, Abhiramapuram, Chennai 600 018. 3.The Public Prosecutor, High Court, Madras.104.Crl.R.C.No.1032 of 2013