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Mastanshah Didarshah Fakir Vs. Umarshah Hattushah Fakir - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case Number Criminal Revision Application No. 230 of 1969
Judge
Reported in(1970)72BOMLR820; 1970MhLJ587
AppellantMastanshah Didarshah Fakir
RespondentUmarshah Hattushah Fakir
DispositionAppeal allowed
Excerpt:
.....146(1b) whether amenable to revisional jurisdiction.;where an application under section 145 of the criminal procedure code, 1898, is decided after due consideration of all the evidence adduced and on merits, a second application under that section on the same facts in respect of the same parties and the same property cannot be validly entertained.;aram sordar v. hara sundar [1928] a.i.r. cal. 95, elimudddin v. umed ali bepari [1986] a.i.r. cal. 650, gajadhar singh v. state [1958] a.i.r. all. 684, ramrachya singh v. singeshwar rai [1941] a.i.r. pat. 607, ambika pandey v. gokul pandey [1960] a.i.r. pat. 180, alarakshi bibi v. mst. ujala bibi [1966] a.i.r. orissa 49, munawar v. gulla shah [1967] a.i.r. j.& k. 129, v thi ha v. maung ngai [1985] a.i.r. ran. 447, veerabhadra rao v...........magistrate in the background of another decision in a prior section 145, criminal procedure code proceedings and which decision was given on merits. it appears to me therefore that this decision of the allahabad high court will not be able to help the learned advocate for the opponents.19. in indersingh v. state a.i.r. [1964] raj. 81, the rajasthan high court was considering an order passed by the magistrate under section 146 {1-b) of the criminal procedure code on the basis of a decision of a civil court regarding the question of possession. that court was of the view that there was no force in the objection that no revision lies against the order of the magistrate passed under section 146 {1-b) of the code. it was observed that it was true that section 146 (1-b) provides that no.....
Judgment:

Bhole, J.

1. Being aggrieved by the order passed by the Additional District Magistrate, Amravati, in a criminal revision before him arising out of an order dated October 25, 1966 passed by the Sub-Divisional Magistrate, Amravati, in a proceeding under Section 145 of the Criminal Procedure Code, the applicant Kasamshah son of Mastanshah Fakir has come here in revision.

2. There was a dispute in respect of Nazul Plots Nos. 182/1 and 182/2, sheet No. 82-D, Amravati, between opponents Nos. 1 and 2 and the applicant and his deceased father. It appears that opponent No. 2 Hydershah Umarshah got the names of opponent No. 1 and of himself mutated on the ground that they were trustees of this property. It is said that there is a Durgah of Wali Kalandarshah on these two plots of land. On the other hand, the applicants claim to be in possession of this property. The applicants' complaint was that the opponents were trying to disturb their peaceful possession and there was likelihood of the breach of peace. Therefore, the police started proceedings under Section 145 of the Criminal Procedure Code in the year 1960 before the Sub-Divisional Magistrate, Amravati. The Sub-Divisional Magistrate after considering all the evidence before him declared that the applicants were in possession of these impugned lands. He made this declaration on May 5, 1961. A revision was preferred by the opponents and their revision was dismissed and the order of the Sub-Divisional Magistrate was confirmed. The opponents did not then seek recourse to establish their right in a civil Court.

3. In spite of this declaration by the Sub-Divisional Magistrate on May 5, 1961 and in spite of an injunction in that order that the opponents should not disturb the peaceful possession of the applicants' property, the opponents appear to have again raked up a quarrel with the applicant. The applicant, therefore, had to make an application in the year 1968 before the Sub-Divisional Magistrate requesting that he should take proceedings under Section 188, Indian Penal Code against the opponents. The matter however appears to have remained there only. Later on, because there was again an apprehension of breach of peace, therefore, the police had again appeared before the Sub-Divisional Magistrate with a request that he should start proceedings under Section 145, Criminal Procedure Code. The parties to the proceedings were the same as those in the proceedings which resulted in a declaration of the possession of the applicant on May 5, 1961. The subject-matter of the new proceedings also was the same impugned property. There were no new circumstances made out.

4. In September 1968, therefore, a second proceeding under Section 145 of the Criminal Procedure Code was initiated before the Sub-Divisional Magistrate. The Sub-Divisional Magistrate passed a preliminary order on September 9,1968. The learned Sub-Divisional Magistrate, Amravati, then passed an order on November 18, 1968 referring the matter to a civil Court with a direction that he should decide whether any and which of the parties was in possession of the subject of dispute at the date of the preliminary order, viz., September 9,1968. He also directed the parties to appear before the civil Court for this purpose. He did this because he had before him at this time a decision of the revenue Court of the year 1958 wherein it decided that the names of the opponents were to be mutated on the records of the impugned property. According to the learned Magistrate, this was, therefore, one of the circumstances to conclude that the opponents were in possession of the impugned property. He also considered the order of the Sub-Divisional Magistrate dated May 5, 1961 which declared the possession of the applicant and which order was later on confirmed by the Additional District Magistrate in revision. It was his view after considering these circumstances that he was not m a position to decide which of the two parties was in actual possession of the impugned property which was in dispute. Accordingly, therefore, he assumed jurisdiction under Section 146 (1) of the Criminal Procedure Code and forwarded the record and proceedings to the civil Court to decide the question of possession.

5. The learned Joint Civil Judge, Junior Division, Amravati, heard this reference made by the Sub-Divisional Magistrate, Amravati. Both the parties had already filed their affidavits and documentary evidence before the Sub-Divisional Magistrate. Both the parties also appeared before the learned Civil Judge. The learned Civil Judge heard the learned advocates on behalf of both the parties and after considering the evidence came to the conclusion that there was no satisfactory evidence to conclude that the applicant was in possession of the impugned property. On the other hand according to him, it was the opponents who were in possession of the impugned property on the date of the preliminary order, i.e. on September 9, 1968, and also before that for a number of years. He passed this order on June 21, 1965. The record and proceedings thereafter were sent back to the Sub-Divisional Magistrate, Amravati.

6. It appears that the Sub-Divisional Magistrate, Amravati, was transferred by the time the record and proceedings were returned to his office by the learned Civil Judge. The new Sub-Divisional Magistrate appears to have felt the infirmity in the reference by his predecessor to the civil Court, But since the matter was already referred to the civil Court and a competent civil Court had already decided the reference, therefore, according to him, in his order dated October 25, 1966 he had no alternative but to decide in conformity with the decision of the civil Court. Because, according to him, he had no jurisdiction to either examine or discuss anything more, therefore, he accepted the findings of the civil Court and declared that the opponents were in possession of the impugned property on the date of the preliminary order, i.e. September 9, 1968, and before that for a number of years. He also passed an injunction against the applicants and ordered them not to disturb the possession of the opponents until the opponents were evicted in due course of law.

7. The applicants, therefore, filed a revision application against this order passed by the Sub-Divisional Magistrate before the Additional District Magistrate. The Additional District Magistrate also was of the view that the order passed by the Sub-Divisional Magistrate was in conformity with the decision of the civil Court to which the matter was referred under Section 146 (1-B) of the Criminal Procedure Code. The learned Additional District Magistrate was also of opinion that the new proceedings under Section 145 of the Criminal Procedure Code were not barred on the ground that a similar dispute was raised before and a similar proceeding in respect of the same subject-matter was decided before. According to him, therefore, the second proceeding under Section 145, Criminal Procedure Code was not barred on that ground. Accordingly, therefore, he confirmed the order passed by the learned Sub-Divisional Magistrate and dismissed the revision petition. This order of the Additional District Magistrate which confirmed the order of the Sub-Divisional Magistrate is challenged here in this revision. The point, therefore, that arises here for consideration is whether this order is legal and proper.

8. The learned advocate for the applicant has contended here that in view of the history of this trust and the impugned property and in view of the fact that there was already a proceeding under Section 145, Criminal Procedure Code in the year 1960-61 and in view of a final decision on merits by the Sub-Divisional Magistrate, a new and similar proceeding under Section 145 in respect of the same parties and in respect of the same impugned property cannot again be initiated. In other words, according to him, the second proceeding under Section 145, Criminal Procedure Code is barred because of the decision in similar proceedings before on merits. It is, therefore, his contention that the Sub-Divisional Magistrate has committed an error by entertaining the second proceeding under Section 145 of the Code and forwarding the record and papers for disposal under Section 146 to a civil Court of a competent jurisdiction. He relies on a number of cases for this purpose. The learned Assistant Government Pleader also is of the same view, although the learned advocate for the opponents contests this view. We will, therefore, have to examine this legal position.

9. There are decisions of the Calcutta High Court, Allahabad High Court, Orissa High Court, Andhra Pradesh High Court, Patna High Court, Jammu and Kashmir High Court, and Rangoon High Court, which show that a second proceeding under Section 145, Criminal Procedure Code when the parties are the same and when the impugned property is also the same, cannot again be initiated.

10. In Aran Sordar v. Hara Sundar A.I.R. [1923] Cal. 95 and Elimuddin v. Umed Ali 2 A.I.R. [1986] Cal. 650 a similar proposition is laid down. In Aran Sordar v. Hara Sundar a Sub-Divisional Magistrate had passed an order under Section 145, Criminal Procedure Code declaring the first party to be entitled to retain possession as against the opposite party. Thereafter the interest of the principal person of the opposite party passed to another and he began to disturb the possession of the first party. The Magistrate thereupon made an order drawing up new proceedings under Section 145, Criminal Procedure Code even though the parties and lands were identical. It was held by the High Court that when proceedings are taken under the Criminal Procedure Code which amount to an abuse of process of Court and the object of which was only to harass the party who has got a previous order of the Magistrate in his favour, the High Court has ample jurisdiction to interfere and ought to interfere under Section 107 of the Government of India Act, which was then in force. According to the High Court, the Magistrate did not exercise proper judicial discretion in starting the proceedings. In Elimuddin v. Umed Ali also, the High Court held that as provided by Section 145 (6) of the Criminal Procedure Code, the party declared to be entitled to possession in the former dispute was entitled to be protected against disturbance of such possession until evicted therefrom in due course of law; otherwise it would be possible for the opposite party to continue to harass his opponents by instituting successive proceedings under Section 145. The party alleging that it was aggrieved, had its remedy in a civil Court, where the questions of title and possession could be settled as between contending parties.

11. In Gajadhar Singh v. State A.I.R. [1958] All. 684 the Allahabad High Court also was of the view that ordinarily a person against whom an order was passed under Section 145(6), of the Criminal Procedure Code would go to a civil Court for getting the other party evicted; but if he could get him evicted by a Court of another jurisdiction such as of a criminal Court in proceeding under Section 447, Penal Code, he could certainly do so.

12. In Ramrachya Singh v. Singeshwar Rai : AIR1941Pat607 , the Patna High Court also held that where a Magistrate in earlier proceedings under Section 145, Criminal Procedure Code has put the parties R and S in exclusive possession of specific portions of the land in dispute, he was bound to maintain their possession in a subsequent dispute; that even if the parties were put in joint possession of the land in dispute, it was not open to the Magistrate to make another order under Section 145 excluding one party from one half of the land in dispute and leaving the other in exclusive possession of the other half and that the Magistrate had to wait until the matter had been decided by the civil Court or settled by arbitration. ' That was also the view of the Patna High Court in Ambika Pandey v. Gokul Pandey : AIR1960Pat189 . It was held that it was not open to the party after the earlier order was passed to initiate another proceeding under Section 145 in respect to the offerings alone dissociated with the land containing the temple. A similar view was also propagated by the Orissa High Court in Alarahshi Bibi v. Ujala Bibi : AIR1966Ori49 wherein it was held that even minors though not represented by guardians were bound by the first order.

13. According to Jammu and Kashmir High Court in Munawar v. Gulla Shah [1967] A.I.R. J.& K. 129, fresh proceedings under Section 145, Criminal Procedure Code relating to same land do not lie. The order of attachment made in such subsequent proceedings is illegal. They have relied on their own decisions in Ashan Safi v. Sana Mir A.I.R. [1958] J.& K. 17, Ram Saran v. Ramdas [1965] A.I.R. J.& K. 49 and Ghulam Shah v. Meerajuddin A.I.R. [1964] J.& K. 1. That appears also to be the view of the Burmah (Rangoon) High Court in 1985 and that is disclosed by a decision in U Thi'Ha v. Maung Ngai A.I.R.[1985] Ran. 447.

14. A similar view was also taken by the Andhra Pradesh High Court in Veerabhadra Rao v. Venkatraju [1966] Cr. L.J. 1080. There is, however, one decision of the Punjab High Court and one of the Rajasthan High Court wherein they were considering the first proceedings under Section 145, Criminal Procedure Code not decided on merits but decided without considering the merits. In those circumstances, according to those High Courts a second proceeding under Section 145 in respect of the same parties as well as in respect of the same properties can be entertained. In Rana Balram v. Pritam Singh A.I.R. [1960] P&H; 464, the Punjab High Court was considering a fresh petition on the same facts in the back-ground of another application under Section 145, Criminal Procedure Code which was dismissed in limine for want of specific allegations as to breach of peace. According to that High Court, entertainment in such circumstances of such a petition was not illegal. The order, therefore, passed by the Magistrate on such petition would be valid. In Jaikrit Singh v. Sohan Baj A.I.R. [1959] Raj. 63, the Rajasthan High Court was considering also a second application and it was also urged there that a first application under Section 145, Criminal Procedure Code was dismissed by the Extra-Magistrate, First Class, Jodhpur on December 4, 1954 and thereafter the Additional District Magistrate had no jurisdiction to entertain another application on the same facts on December 11, 1954. It was contended that the entire proceedings were fit to be set aside on account of the want of jurisdiction. It appears that the Extra Magistrate First Class had dismissed the first application of Party No. 1 there on December 4, 1954 and he ordered that the papers should be filed by stating that, in his opinion, there was no apprehension of a breach of peace. In the background of these circumstances the second application was, therefore, held to be validly tenable. Therefore, these two cases of the Punjab and Rajasthan High Court were such wherein the matter was not decided at all on merits. The orders appeared to have been passed either in limine or to file the papers because there was no apprehension of breach of peace. Under these circumstances, of course, a second application could be entertained. But if the first application was decided after due consideration of all the evidence that was adduced and on merits, the second application on the same facts in respect of the same parties and in respect of the same property cannot validly be entertained.

15. My learned brother Mr. Justice Padhye in Bombay Lodge, Akola v. State (1907) Criminal Revision Application No. 196 of 1966, decided by Padhye J., on January 19, 1967 (Unrep.) had also taken a view relying on Pritam Singh v. State of Punjab A.I.R. [1956] S.C. 415 that certain judgments in criminal trials which were being considered by him would operate as resjudicata and therefore certain questions could not again be reagitated. The principle of res judicata in criminal trials was being considered by the Supreme Court in Pritam Singh v. State of Punjab. Their Lordships were of the view that a verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim' res judicata proveritate accipitur' is no less applicable to criminal than to civil proceedings. Therefore, it is not that the principle of res judicata is attracted only to civil litigations, it is also attracted on the basis of similar principle to criminal trials. The Supreme Court was considering another case in State of A. P. v. Kokkiliagada Meerayya [1969] 1 S.C. C. 161 the principle of 'issue estoppel' in criminal cases and whether it operated in India, apart from Section 403, Criminal Procedure Code, which deals with persons once convicted or acquitted and lays down a principle that they should not be tried for the same offence. After considering a number of cases and a consensus of opinion on this subject, the Supreme Court was of the view that the rule of 'issue estoppel' in criminal trials evolved by the High Court of Australia and approved by the Judicial Committee has been applied to criminal trials in India, apart from the terms of Section 403 of the Code of Criminal Procedure. The Supreme Court approved the view of Lord Macdermot in Sambasivam v. Public Prosecutor, Federation of Malaya [1950] A.C. 458 that the maxim 'res judicata pro veritate accipitur' was no less applicable to criminal than to civil proceedings.

16. Therefore, it appears to me that the second proceeding under Section 145 of the Criminal Procedure Code cannot validly be entertained by the Sub-Divisional Magistrate especially when the proceedings under Section 145 were once decided on merits and the applicant's possession was also declared on May 5, 1961.

17. The learned advocate for the opponent however is at pains to contend that the applicant did appear and take part in the second proceedings under Section 145, Criminal Procedure Code and that he did also take part before the Civil Judge to whom the record and proceedings were forwarded. According to him, therefore, the applicant cannot now turn round and say that the Sub-Divisional Magistrate had illegally entertained the second proceedings under Section 145, Criminal Procedure Code. According to him, because the applicant had not come to this Court for the purpose of revising the order of reference by the Sub-Divisional Magistrate to the Civil Judge, therefore, he cannot now come, at this stage of the proceedings in revision, attacking also the reference by the Sub Divisional Magistrate to the Civil Judge. It is, however, difficult for me to accept this contention. The learned advocate for the opponents has also contended here that the learned Sub-Divisional Magistrate had a right to refer the case to the Civil Court because there was a fresh cause of apprehension of breach of peace and according to him, therefore, he could do so in spite of the first decision by the Sub-Divisional Magistrate in the first proceedings under Section 145, Criminal Procedure Code. He further argues that in such circumstances he is entitled on a fresh cause of action on a breach of peace not only to pass the preliminary order which he passed but also to see who was in possession on that date. But we have seen the view of a large number of High Courts against this view. It would, therefore, be difficult for me to concede that even if there was a prior decision by a Sub-Divisional Magistrate in Section 145 proceedings, the Sub-Divisional Magistrate could again entertain on a fresh cause of apprehension of a breach of peace. In my view, once a party is asked not to disturb the peaceful possession of another party, the first party certainly cannot take law into his own hands and raise a colour of the apprehension of breach of peace and give cause to the police to initiate a second proceeding under Section 145. It appears to me that even though there is a cause for apprehension of breach of peace, later on, it is the duty of the Sub-Divisional Magistrate to consider that application in the background of the decision of the first application on merits. He has thereafter to see that the party who was asked not to disturb the possession of the other party does not disturb.

18. I am also unable to agree with the learned advocate for the opponents when he Bays that the applicant ought to have come in revision only at a stage when the Sub-Divisional Magistrate referred the record and proceedings under Section 146 of the Criminal Procedure Code to the Civil Judge for finding out who was in possession. After all, the reference was made in a proceeding under Section 145, Criminal Procedure Code. The Civil Judge under Section 146 had decided because of the reference by the Sub-Divisional Magistrate in Section 145 proceedings. A final order after reference was passed in the same proceedings by the Sub-Divisional Magistrate. The applicant, therefore, can come even against this final order attacking also the interim order against which he may have a grievance. But the learned advocate for the opponents invites my attention to Chandi Prasad v. Chandra Pratap A.I.R. [1970] All. 118 and says that the ruling in this case helps him. There was a reference of dispute to the civil Court in this case under Section 146 (2) of the Criminal Procedure Code. It was held that in judging whether a Magistrate had sufficient ground what has to be seen is substance and not form of order of reference. If the order discloses that the Magistrate found it difficult to decide on a question of possession, it was held that it could not be said that the order of reference was incompetent. In this case an order under Section 146 {1-B) was passed after adopting a finding of the civil Court on a question of possession referred to it. The Allahabad High Court in the context of this case, therefore, held that it was no more open to a party to assail the order of reference to the civil Court. It was further held by the Allahabad High Court that the order of the Magistrate under Section 146 {1-B) cannot he set aside in revision. It is, therefore, contended by the learned advocate for the opponents that we have a case in which the Sub-Divisional Magistrate had referred the question of possession to the civil Court; that the civil Court had decided the question of possession and that the Sub-Divisional Magistrate had adopted the finding of the civil Court and it was thereafter that the applicant has come here in revision against that order. It is, therefore, argued that the revision application of the applicant in such circumstances is not tenable and it cannot be entertained. It is, however, difficult for me to accept this contention for the obvious reason that the Allahabad High Court was not considering another criminal proceeding under Section 145, Criminal Procedure Code which was already decided before a second criminal proceeding was initiated before the Sub-Divisional Magistrate. The Allahabad High Court was considering a case in which, for the first time, the proceedings were initiated before the Sub-Divisional Magistrate and because he could not come to a conclusion which party was in possession, therefore, he was certainly entitled under Section 146 (1) to refer the dispute to the civil Court. In the context therefore of only one proceeding and the decision thereon, the Allahabad High Court held that the order of the Magistrate adopting the finding of the civil Court on the question of possession cannot be revised under Section 146 (1-J3) of the Criminal Procedure Code. We are considering here facts which were quite contrary to the facts which were considered by the Allahabad High Court. We are considering the order passed by the Sub-Divisional Magistrate in the background of another decision in a prior Section 145, Criminal Procedure Code proceedings and which decision was given on merits. It appears to me therefore that this decision of the Allahabad High Court will not be able to help the learned advocate for the opponents.

19. In Indersingh v. State A.I.R. [1964] Raj. 81, the Rajasthan High Court was considering an order passed by the Magistrate under Section 146 {1-B) of the Criminal Procedure Code on the basis of a decision of a civil Court regarding the question of possession. That Court was of the view that there was no force in the objection that no revision lies against the order of the Magistrate passed under Section 146 {1-B) of the Code. It was observed that it was true that Section 146 (1-B) provides that no appeal shall lie from any finding of the civil Court given on a reference under Section 146 nor shall any review or revision on any such finding be allowed. But according to the Rajasthan High Court, by incorporating this provision, it was intended by the Legislature that the proceedings under Section 145 be not needlessly protracted and the dispute regarding possession should be decided soon. The Sub-section {1-D) of Section 146 bars the remedy of appeal, revision or review against the finding of the civil Court but it cannot be interpreted to mean that when a final order was passed by the Magistrate though in conformity with the decision of the civil Court, a revision under the provisions of the Code of Criminal Procedure will also not lie to the Court of Sessions or the High Court. The order passed by a Magistrate under Sub-section {1-B) of Section 146, is by an inferior criminal Court and should be amenable to the revisional jurisdiction of the Courts mentioned in Section 485, Criminal Procedure Code. It is in this view of the matter, therefore, the revision application was entertained. With respect, I agree with the observations of the Rajasthan High Court. There should therefore be no reason for me not to entertain this revision application by the applicant. This is also the view of the Assam and Nagaland High Court. In Ram Lakhan v. Raghunath A.I.R. [1969] A. & N. 81, that High Court was hearing a criminal revision against a final order of a Magistrate under Section 146 (1-B) of the Criminal Procedure Code, It was urged that an application under Section 489, Criminal Procedure Code was absolutely a bar against an order passed by a Magistrate under Section 146 (1-B), in view of the provisions under Section 146 (1-D). That High Court repelled this view. After considering Section 140 (1-B) and 146 (I'D) that High Court held that Section 146 (1-D) cannot be invoked to be a bar against a revision application under Section 485 or 489, Criminal Procedure Code. Therefore, after the final order was passed under Section 146 (1-B) by the Magistrate, it was open to an aggrieved party in an appropriate case to invoke the revisional jurisdiction under Section 483 or 489, Criminal Procedure Code. That High Court followed a Full Bench decision of the Patna High Court in Raja Singh v. Mahendra Singh A.I.R. [1968] Pat. 248, With respect, I agree with the observations made therein. It appears to me, therefore, that the argument raised by the learned advocate for the opponents that the revision application cannot be entertained is without substance.

20. The applicant can validly attack not only the reference of the Sub-Divisional Magistrate to the civil Court but also the final order passed by the Magistrate accepting the reference of the civil Court.

21. Therefore, the Sub-Divisional Magistrate has erred in law by making a reference in the second proceedings under Section 145, Criminal Procedure Code, to the Civil Judge on a question of possession. He ought not to have taken cognizance in the way he did of the second proceedings. The second proceedings were therefore barred because of a decision on merits and because of a declaration on May 5, 1961 by the Sub-Divisional Magistrate that the applicant was in possession of the impugned property on that day. The remedy for the opponents Was to decide the question in a competent Court of civil jurisdiction and not to again raise the same dispute over again by disturbing the possession of the applicant and creating an apprehension of breach of peace in the minds of the police. The Magistrate, in fact, under those circumstances ought to take proceedings against the opponents because they were ordered not to disturb the peaceful possession of the applicant in the declaration by the Sub-Divisional Magistrate on May 5, 1961. He cannot again resjudicata the same question over again.

22. In the above view of the matter, therefore, this revision application will have to be allowed. I, therefore, set aside the order passed by the Additional District Magistrate confirming the order passed by the Sub-Divisional Magistrate. The orders passed by the Additional District Magistrate and the Sub-Divisional Magistrate, therefore, are quashed. The revision application is allowed.


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