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Chakrapani Mukhi and anr. Vs. Dhruba Charan Mukhi and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 417 of 1965
Judge
Reported inAIR1967Ori39; 1967CriLJ395
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145
AppellantChakrapani Mukhi and anr.
RespondentDhruba Charan Mukhi and anr.
Appellant AdvocateP. Roy, Adv.
Respondent AdvocateR.C. Ram, Adv.
DispositionPetition dismissed
Cases ReferredAnil Behari Ghosh v. Smt. Latika Bala Dasi
Excerpt:
.....and is of no assistance to the petitioners. only under exceptional circumstances, i. it is well settled by authorities that the decision in a criminal case even though relates to the same subject-matter cannot be binding upon a civil court. is admissible in a subsequent civil suit instituted to set aside the order passed under section 145. their lordships held that such orders are admissible in evidence on general principle as well as under section 13 of the evidence act to show the fact that such orders were made......of the 1st party. if the court would have appointed a receiver and given him possession of the suit property, there would have been no further apprehension of breach of the peace concerning possession of that property, between the parties and the position would have been different. in that event, the magistrate would have no justification to hold that there would be any further apprehension of breach of the peace which is the foundation of his jurisdiction. but here, no such steps were taken and in spite of the civil suit, the apprehension of breach of the peace was still there concerning possession or the property. in the case reported in (1963) 29 cut lt 111, dhaneswar singh v. bandia singh, the subject-matter of dispute in the 143 proceeding was also the subject-matter in a suit.....
Judgment:
ORDER

R.K. Das, J.

1. This is a petition by a 1st party in a proceeding under Section 145, Cr. P. C. The parties come from the same family and the dispute relates to some plots in respect of three Khatas in mouza Saheba Nagar in the district of Puri.

2. On 16-12-64, the 2nd party filed a petition before the Subdivisional Magistrate, Bhubaneswar requesting him to take action under Section 145 Cr. P. C., as there was apprehension of breach of the peace concerning possession of the aforesaid disputed property. Shortly thereafter i.e. on 6-1-65, they also filed O. S. 3 of 1965 in the court of Munsif, Bhubaneswar in respect of the same property. In the said suit, they asked for a declaration of title and for confirmation of possession or in the alternative for recovery of possession. On 17-2-65, however, the Magistrate in pursuance of the petition of the 2nd party dated 16-12-64 passed a preliminary order under Section 145, Cr. P. C. and attached the property. The 2nd party who are the plaintiffs in the civil suit prayed for an ad interim injunction for restraining the defendant-petitioners from entering upon the disputed property.

Ad interim injunction was granted, but it was later on vacated after the petitioners filed objections before the civil court. The 1st party-petitioners filed a petition before the Magistrate to drop the proceeding under Section 145, Cr. P. C. The Magistrate, however, refused to drop the proceeding, obviously because the property was not attached by the civil court and the apprehension of breach of the peace in respect or possession of the said property was still there. Both parties filed written statements and affidavits in support of their respective possession. The learned Magistrate held that the 2nd party was in possession of the disputed land on the date of the preliminary order and was entitled to remain in possession of the same until evicted in due course of law. It is against this order, the 1st party has filed this revision petition.

3. The main contention of Mr. Roy, learned counsel for the petitioners is that the proceeding under Section 145, Cr. P. C. should be quashed, in view of the pendency of the civil suit between the same parties in respect of the same property.

He relied upon the decision of this Court reported in 19 Cut LT 226: AIR 1953 Orissa 312, (1959) 25 Cut LT 557; (1963) 29 Cut LT 1.11, & 31 Cut LT 839: (AIR 1966 Orissa 5). The case reported in 19 Cut LT 226; (AIR 1953 Orissa 312) in Panua Bhoi v. Jagannath Ramanuj Das was relied upon in support of the view that the Magistrate has no jurisdiction to proceed under Section 145, Cr. P. C. where the dispute between the parties have already been taken before the civil Court. This decision has been explained by the learned Judge himself in a subsequent decision of his reported in (1960) 26 Cut LT 298 in Mst. Surja Kanti Sarafani v. Rajib Lochan Saraf.

His Lordship has explained the position saying that all that was pointed out in that decision was that a final order under Section 145, Cr. P. C. is itself subject to the decision of the Revenue Officer in an appropriate proceeding where the parties are related as landlord and tenant and there is no point in allowing a proceeding under Section 145, Cr. P C. to continue when the parties have already approached the Revenue Officer. The question is one of propriety and not one of jurisdiction. In a subsequent decision reported in (1956) 22 Cut LT 273. Sankudia Singh v. Gadadhar Jena, the position was further explained and it was pointed out that in exceptional cases, the Magistrate where a breach of the peace is apprehended, may also start a proceeding even after the termination of the proceeding under the Orissa Tenants Relief Act, though such oases must be rare.

In the case reported in (1959) 25 Cut LT 557, Champabati Dibya v. State, a regular partition suit in respect of the disputed property was pending between the same parties. It was held that once the parties have moved the Civil Court for adjudication of their rights there is no point in starting a proceeding under Section 145, Cr. P. C. If either party wants interim relief during the pendency of the civil suit, the civil court itself has jurisdiction to pass interlocutory orders either under Order 39 or Order 40, C. P. C. for interim injunction or for appointment of a Receiver as may be necessary, but the initiation of the proceeding under Section 145, Cr. P. C. after the commencement of the civil litigation is clearly misconceived. In the present case, as has already been seen, the 2nd party filed a petition for taking action under Section 145, Cr. P. C. on 16-12-64 before the civil suit was filed and thereafter the Magistrate passed the preliminary order on the ground that there was apprehension of breach of the peace concerning possession of the disputed property.

Further, the ad interim injunction granted at the first stage was vacated on the objection of the 1st party. If the court would have appointed a Receiver and given him possession of the suit property, there would have been no further apprehension of breach of the peace concerning possession of that property, between the parties and the position would have been different. In that event, the Magistrate would have no justification to hold that there would be any further apprehension of breach of the peace which is the foundation of his jurisdiction. But here, no such steps were taken and in spite of the civil suit, the apprehension of breach of the peace was still there concerning possession or the property. In the case reported in (1963) 29 Cut LT 111, Dhaneswar Singh v. Bandia Singh, the subject-matter of dispute in the 143 proceeding was also the subject-matter in a suit for partition. After the passing of the preliminary decree in the partition suit, one Dhaneswar was appointed as Receiver on 1-12-59 and was directed to take possession of the property. Subsequently however, a petition was filed by Bandia Singh under Section 145, Cr. P. C. against the Receiver on 18-11-60 on the ground that he is a bhag chasi and his possession should not be disturbed. The consent of the Subordinate Judge was not taken to implead the Receiver as a party in that proceeding under Section 145, Cr. P. C. That matter ultimately came up before the High Court where it was held that the entire proceeding under Section 145 is misconceived and the Receiver appointed by the civil court cannot be made a party in a proceeding under Section 145 Cr. P. C. without the sanction of the court. It is on that ground, the proceeding under Section 145 was quashed.

In the case reported in 31 Cut LT 839: (AIR 1966 Orissa 5), Dula Dei v. Krupasindhu Patnaik, the Magistrate did not himself go into the affidavits filed by the parties nor examined the merits of the respective contentions to find out as to which of the parties was in actual possession. He merely relied upon a decree of the civil court and directed delivery of possession in favour of the opposite party. Under such circumstances, the case was remanded to the trial court for disposal according to law. This decision is clearly distinguishable and is of no assistance to the petitioners.

The primary object of a proceeding under Section 145, Cr. P. C. is the prevention of a breach of the peace arising in respect of a dispute relating to the possession of certain immovable property. The order in a proceeding under Section 145, is interim in nature and is passed with a view to achieve one object, i.e. to avoid a breach of the peace arising out of a dispute relating to such possession. The sole object of the inquiry is to find out as to who was in possession of the disputed property on the date of the preliminary order and in case such a party was forcibly and wrongfully dispossessed by the other party within two months next before the preliminary order, the Magistrate should treat the party so dispossessed as if he had been in possession at such date and restore such party to possession under Sub-section (6) of Section 145. The criminal court has nothing to do with the merits of the claim of the respective parties but is primarily concerned with the question of possession. The effect of the final order under Section 145 is that the party whose possession was declared by the Magistrate shall be entitled to such possession until evicted therefrom in due course of law. 'Evicted' means nothing more than dispossessed. Thus, the successful party shall be entitled to remain in possession until dispossessed in due course of law.

Any court whether civil or revenue or any statutory authority competent to pass an order for eviction may by such order dispossesss the party found to te in possession by a Magistrate under Section 145, Cr. P. C.

The question, however, is if a dispute relating to the possession of the very same property is pending in a civil or revenue court or any such statutory authority, would the criminal court still have the jurisdiction to initiate or continue the proceeding under Section 145, Cr. P. C. A Magistrate can exercise jurisdiction under Section 145, Cr. P. C. only under exceptional circumstances, i.e., where there is likelihood of a breach of the peace concerning any land or water. Thus, the only test is if there is existence of any breach of the peace concerning any land or water irrespective of the fact whether a case is pending before a competent court or authority. The mere fact that a civil suit is pending is no bar to action being taken by a Magistrate under Section 145, Cr. P. C. . The position, however, may be different if a civil or revenue court appoints a Receiver and the property remains in the custody of the court. In that event, no question of apprehension of breach of the peace may possibly arise and in any event that court itself may pass such order as may be necessary for the preservation of property and put the parties to term. Here, as we have seen, none of the parties chose to take any steps before the civil court for appointment of a Receiver so as to leave the property in charge of the court, but chose to fight out their litigation in the forum of a criminal court. Under such a situation, the contention that the proceeding under Section 145, Cr. P. C. is incompetent cannot be accepted.

4. The other grievance of Mr. Roy was that the civil court might be influenced by the decision of the criminal court. This contention cannot have any force. It is well settled by authorities that the decision in a criminal case even though relates to the same subject-matter cannot be binding upon a civil court. In AIR 1941 Pat 118, Harihar Prasad Singh v. Mt. Janak Dulari Kuer their Lordships held that in a civil suit, the court would not be justified in relying upon a decision given in a criminal case even though it relates to the same subject-matter. In a case reported in AIR 1956 Pat 49, Ramdhar v. Janaki, their Lordships observed that a judgment in a criminal case is admissible to prove only who the parties to the dispute were and what order was passed. The findings of the criminal court are not admissible and the civil court is bound to find facts for itself.

In a case reported in (1902) ILR 29 Cal. 187, Dinomoni Choudhrani v. Brojomohini Choudhrani, the question was to what extent an order passed under Section 145, Cr. P. C. is admissible in a subsequent civil suit instituted to set aside the order passed under Section 145. Their Lordships held that such orders are admissible in evidence on general principle as well as under Section 13 of the Evidence Act to show the fact that such orders were made. They are evidence of the fact as to who were the parties to the dispute what the land in dispute was and who were declared entitled to retain possession. For this purpose and to -that extent such orders are admissible.

In a decision of the Supreme Court reported in AIR 1955 SC 566, Anil Behari Ghosh v. Smt. Latika Bala Dasi the question in a probate case was to what extent the finding of the criminal Court that the son of the testator murdered him is evidence in the probate proceedings. Their Lordships held that the judgment of the criminal court is relevant only to show that there was such a trial resulting in the conviction and sentence of the son. It is not evidence of the fact that the son was the murderer of the testator. That question has to be decided by the probate court on the basis of the evidence before him. In view of the legal position, there cannot be any dispute that the findings of the criminal court are not binding on the civil court which has to come to its own findings on the merits of the evidence.

5. There is thus no merit in the revision which is accordingly dismissed.


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