Roshan Lal v. Rekhraj

HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR S.B. Criminal Misc(Pet.) No. 2199 / 2015 Roshan Lal s/o Madan Lal, b/c Mali, r/o 82, Income Tax Colony, Jodhpur. ----Petitioner Versus 1. Rekhraj s/o Madan Lal, b/c Mali, r/o Maliyon Ka Bass, Udaimandir, Jodhpur at present 82, Income Tax Colony, Jodhpur. 2. Madan Lal s/o Ramchandra, b/c Mali, r/o Maliyon Ka Bass, Udaimandir, Jodhpur at present 82, Income Tax Colony, Jodhpur. 3. S.H.O., Police Station, Mahamandir, Jodhpur. ----Respondent _____________________________________________________ For Petitioner(s) : Mr.Mahesh Bora, Senior Advocate assisted byMr.Nishant Bora.Mr.Nishant Bora. For Respondent(s) : Mr.V.S.Rajpurohit PP for the State. _____________________________________________________ HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order Reserved on 18/09/2017 Pronounced on 19/09/2017 1.This criminal misc. petition under Section 482 Cr.P.C.has been preferred against the order dated 12.06.2015 passed bylearned Additional Sessions Judge No.1, Jodhpur in Criminal Misc.Revision Petition No.23/2015 against the order passed by thelearned ADM City, Jodhpur in Criminal Case No.3/2013 byaffirming the order of the trial court in proceeding under Sections145 and 146 Cr.P.C. 2.At the outset, learned Senior Counsel for the petitionersubmits that the proceedings under Sections 145 and 146 Cr.P.C.have not been entertained only on account of the fact that the civil suit was pending regarding the same disputed property inquestion. 3.Learned Senior Counsel for the petitioner has reliedupon the judgment rendered by a coordinate Bench of this Courtin Kishan Lal Vs. State of Rajasthan & Ors. (S.B.CriminalMisc. Petition No.1517/2014 decided on 01.12.2015),relevant paras 7 to 9 of which read as under:- “7. It is the admitted case of the petitioner that theproceedings under Section 145 Cr.P.C. were institutedmuch before the inception of the civil case. As such,the judgment rendered by the Supreme Court in thecase of Ram Sumer Puri Mahant (supra) has notapplication whatsoever to the case at hand. 8. In the case of Ram Sumer Puri Mahant (supra),the Supreme Court propounded that such proceedingsunder Section 145 Cr.P.C. which are initiated after theinstitution of a suit for title instituted in relation to thedisputed property between the parties, cannot beallowed to continue. As such, this Court is of theopinion that the prayer made by the petitioner in thismisc. petition for dropping of the proceedings pendingbefore the learned S.D.M under Section 145 Cr.P.C. ismisconceived. 9.As a result of the above discussion, the instantmiscellaneous petition, being devoid of any merit, ishereby rejected. The learned Executive Magistrate is,however, directed to decide the main proceedingsunder Section 145 Cr.P.C. Within a period of one yearfrom the date of receipt of copy of this order.” 4.Learned Senior Counsel for the petitioner admitted thatwithin forty eight hours of initiating the proceedings under Sections 145 and 146 Cr.P.C., a civil suit was instituted. LearnedSenior Counsel for the petitioner, however, stated that the basicidea of the law is to safeguard the possession under Section145/146 Cr.P.C., whereas in the civil case, the title, possessionetc. could be decided. Learned Senior Counsel for the petitionerfurther submitted that once the proceeding under Sections 145and 146 Cr.P.C. has been initiated, it could not have been closedsimply on account of the fact that a civil suit is pending. 5.Learned Public Prosecutor has submitted that in theconcluding para of the impugned order, the only reason of non-interference is that regarding property in dispute, the civil courtadjudication is going on . Sections 145 and 146 Cr.P.C., a civil suit was instituted. LearnedSenior Counsel for the petitioner, however, stated that the basicidea of the law is to safeguard the possession under Section145/146 Cr.P.C., whereas in the civil case, the title, possessionetc. could be decided. Learned Senior Counsel for the petitionerfurther submitted that once the proceeding under Sections 145and 146 Cr.P.C. has been initiated, it could not have been closedsimply on account of the fact that a civil suit is pending. 5.Learned Public Prosecutor has submitted that in theconcluding para of the impugned order, the only reason of non-interference is that regarding property in dispute, the civil courtadjudication is going on . 6.Learned Public Prosecutor also submitted that once theproperty in dispute is subjudice in a civil litigation, and after filingof the reply, the civil proceedings are in advance stage, then theproceeding under Section 145 Cr.P.C. cannot be initiated. 7.Learned Public Prosecutor has relied upon theprecedent law laid down by the Hon’ble Apex Court inJhummamal alias Devandas Vs. State of Madhya Pradesh, reported in (1988) 4 SCC 452, relevant paras 7 and 8 of whichread as under:- “7. It will be obvious from the order of the High Courtthat the decision of this Court in Ram Sumer's casehas been totally misunderstood. In that case, a titlesuit for possession and injunction in respect of certainproperty was instituted before the civil court. The suitwas dismissed on February 28, 1981. The matter wastaken up in appeal. When the appeal was pending for disposal, proceedings under Section 145 Cr.P.C. wereinitiated with regard to the same property. In thatproceedings, the Magistrate passed a preliminaryorder under Section 145(1) of the Cr.P.C. and alsoattached the property. The aggrieved party challengedthat order in a revision petition before the AllahabadHigh Court. The High Court refused to interfere withthat order. But this Court quashed the proceedingsunder Section 145 Cr.P.C. observing: There is no scope to doubt or dispute the positionthat the decree of the civil court is binding on thecriminal court in a matter like the one before us.Counsel for respondents 2-5 was not in a position tochallenge the proposition that parallel proceedingsshould not be permitted to continue and in the eventof a decree of the civil court, the criminal courtshould not be allowed to invoke its jurisdictionparticularly when possession is being examined bythe civil court and parties are in a position toapproach the civil court for interim orders such asinjunction or appointment of receiver for adequateprotection of the property during pendency of thedispute. Multiplicity of litigation is not in the interestof the parties nor should public time be allowed tobe wasted over meaningless litigation. We are,therefore, satisfied that parallel proceedings shouldnot continue and the order of the learned Magistrateshould be quashed. 8. We fail to understand how the High Court in thiscase took advantage of the decision of this Court inRam Sumer's case. The ratio of the said decision is thata party should not be permitted to litigate before thecriminal court when the civil suit is pending in respectof the same subject matter. That does not mean that a 8. We fail to understand how the High Court in thiscase took advantage of the decision of this Court inRam Sumer's case. The ratio of the said decision is thata party should not be permitted to litigate before thecriminal court when the civil suit is pending in respectof the same subject matter. That does not mean that a concluded order under Section 145 Cr.P.C. made bythe Magistrate of competent jurisdiction should be setat naught merely because the unsuccessful party hasapproached the civil court. An order made underSection 145 Cr.P.C. deals only with the factum ofpossession of the party as on a particular day. Itconfers no title to remain in possession of the disputedproperty. The order is subject to decision of the civilcourt. The unsuccessful party therefore must get reliefonly in the civil court. He may move the civil court withproperly constituted suit. He may file a suit fordeclaration and prove a better right to possession. Thecivil court has jurisdiction to give a finding differentfrom that which the Magistrate has reached. 8. 8.After hearing the learned counsel for the parties as wellas perusing the record of the case, alongwith the precedent lawcited at the Bar, this Court is of the opinion that the order madeunder Section 145 Cr.P.C. only deals with the factum of possessionof the party and does not confer any title to remain in possessionof the disputed property. The said order always remains subject tothe decision of the civil court and the unsuccessful party wouldtherefore must get the relief only in the civil court. Moreover, thisHon’ble Court has also settled the issue by saying that in case theproceedings of Section 145 Cr.P.C. have been initiated before theinstitution of the suit for the title in relation to the disputedproperty between the parties, then it cannot be allowed tocontinue. It would have been a different case, if an interim orderwas passed in the present case by the civil court. 9.Admittedly, Section 145 Cr.P.C. proceedings wereinitiated at the first instance, and thereafter the civil suit wasinstituted. Thus, the present present petition deserves to beallowed. 10.In light of the aforesaid discussion as well as theprecedent law cited by learned Senior Counsel for the petitioner,the present petition is allowed and the impugned order dated12.06.2015 passed by learned Additional Sessions Judge No.1,Jodhpur in Criminal Revision No.23/2015, affirming the judgmentof the ADM City, Jodhpur is quashed and set aside, and the matteris remanded back to the learned Authority of ADM City, Jodhpur toconsider the matter on its own merit and pass order, strictly inaccordance with law, regarding Sections 145 and 146 Cr.P.C.; untilthe civil court reaches to a conclusive finding or pass an interimorder, as finally the civil proceedings shall govern the field. (DR. PUSHPENDRA SINGH BHATI)J. Skant/-