Pritam Singh Pattar, J.
1. This criminal revision petition has been filed by Des Raj, Ramji Dass and Srnt. Lajo against the order dated 5th July, 1970, of Shri Dev Raj Saini, Additional Sessions Judge, Patiala, by which he dismissed their revision petition against the order dated 27th January, 1970, of Dalip Singh Sub-Divisional Magistrate, Rajpura.
2. The facts of this case are that one Mst. Akki widow of Badri Parshad was owner of land measuring 30 Bighas situate in two villages and on her death which took place in September, 1966, this land was mutated by the revenue authorities in the names of Ramji Dass, Des Raj, Dwarka Dass and Mst. Lajo, vide mutation order No. 342 decided on 31st January, 1967, and mutation order No. 255 decided on 31st January, 1967. Against these orders Sat Pal respondent who is the son of Dwarka Dass filed an appeal in the Court of the Collector alleging that on the basis of a will executed by Mst. Akki in his favour he was entitled to inherit the land and the same should be mutated in his favour. This appeal was dismissed by the Collector on 28th February, 1968. Sat Pal then filed a civil suit against Des Raj, Ramji Dass, Dwarka Dass and Mst. Lajo regarding this land in the Court of the Subordinate Judge, Rajpura, district Patiala, on or about 29th February, 1968.
The Subordinate Judge was stated to have issued an order on 2nd May, 1968, that status quo regarding possession of land may be maintained. It appears that later on there was some dispute regarding possession of this land and the police submitted a report to the Sub-Divisional Magistrate Rajpura, on 6th November, 1969, stating that there was a dispute likely to cause breach of peace regarding this land and action may be taken under Section 145, Criminal Procedure Code. The Sub-Divisional Magistrate passed an order on 6th November, 1969, and appointed Shri Bachittar Singh Tehsildar Rajpura, as Receiver of this land in dispute. After hearing the parties the Sub-Divisional Magistrate came to the conclusion that since civil suit regarding this land between the parties was pending in the Court of Subordinate Judge, Rajpura, therefore, he thought that no useful purpose would be served by proceeding under Section 145, Criminal Procedure Code, and by his order dated 27th January, 1970, he dropped those proceedings and vacated the attachment order dated 6th November, 1969.
However, he directed the police that since the relations between the parties were strained, action be taken under Section 107/151, Criminal Procedure Code. Against this order Des Raj, Ramji Dass and Mst. Lajo filed a revision petition in the Court of the Sessions Judge, which was dismissed by the Additional Sessions Judge, Shri D. R. Saini, on 5th September, 1970. Feeling aggrieved they filed this revision petition alleging that the order of the lower Court was wrong and it may be set aside and the Sub-Divisional Magistrate may be directed to give his decision in proceedings under Section 145, Criminal Procedure Code.
3. Section 145 (1) of the Code of Criminal Procedure lays down that when the District Magistrate or the Sub-Divisional Magistrate, or Executive Magistrate of the First Class is satisfied from the police report or otherwise that a dispute likely to cause a breach of peace exists concerning any land within the local limits of his jurisdiction he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties to attend his Court in person and to put in written statement regarding their respective claims. Thereafter he has to hold enquiry regarding the possession of this land within two months from the date of appearing of the parties before him. Section 145 (10) of the Code of Criminal Procedure says that nothing in this Section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107. However Section 146, Cr.PC says if the, Magistrate is of the opinion that none of the parties was in possession or he was unable to decide as to which of them was in possession of the subject of dispute he may attach it and draw up a statement of facts of the case and forward the record of the proceedings to a civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the disputed property at the date of the order passed by him under Section 145, Criminal Procedure Code.
4. The learned Counsel for the petitioners relied on Bisan Pusha v. Mayaram, ATR 1953 Nag 356 : (1953 Cri LJ 1795) wherein it was held as under:
The mere institution of a suit in the civil Court by a party would not by itself be sufficient to justify the dropping of proceedings under Section 145 if there is a danger of a breach of the peace which can best be averted by summary proceedings under that section.
Similar was the law laid down in Chakra-pani Mukhi v. Dhruba Charan Mukhi : AIR1967Ori39 . It was further observed in the latter ruling that criminal Court is primarily concerned with the question of possession and the pendency of a civil suit regarding the same property is no bar to take action under Section 145. But the position may be different if the civil Court has put the property in custody of Court and thereby removed apprehension of breach of peace. In this Orissa case ad interim injunction was granted, but it was later on vacated and thereafter proceedings under Section 145 were started. Both these rulings are distinguishable and do not apply to the facts of this case.
In the instant case civil suit regarding this property was instituted by Sat Pal respondent on 29th February, 1968, and the Subordinate Judge trying that suit directed that status quo regarding land may be maintained. In other words the person who was in possession of the whole or any part of the property on the date of the order shall (continue to be in possession of the same. The Court had definitely passed a specific order regarding the maintenance of status quo so far as possession of the land was concerned. Consequently the provisions of Section 145, Criminal Procedure Code, should not be invoked when civil litigation about the identical subject-matter is actually pending.
5. In Malkappa v. Padmanna AIR 1959 Mys 122 : (1959 Cri LJ 621), it was held as under:-
The provisions of Section 145 should not be invoked when civil litigation about the identical subject-matter is actually pending. When there is a choice between Section 145 and Section 107 before a Magistrate by reason of the pendency of civil litigation, he must choose Section 107 and not Section 145.
With due respect I agree with the observations made in this authority.
6. In the instant case civil litigation about the land in dispute was pending since 29th February, 1968. The order for maintenance of status quo re-possession of land was passed by the Subordinate Judge on 2nd May, 1968. No dispute arose between the parties regarding possession of the land for about one and a half years and the police report was made on 2nd November, 1969, and then the proceedings under Section 145, Criminal Procedure Code, were initiated. Under the circumstances and in view of Malkappa's case AIR 1953 Nag 356 : (1953 Cri LJ 1795) (supra) the order of the Magistrate dropping the proceedings under Section 145, Criminal Procedure Code and directing the police to take action under Section 107, Criminal Procedure Code, was perfectly proper and valid.
7. The very purpose under Section 145 is to prevent the breach at the instance of the parties, who should, like law abiding citizens, place their dispute before a civil Court and not take the law into their own hands. Even the final order that is contemplated under that section is intended only as a stop-gap arrangement. The ultimate objective undoubtedly is to compel parties to place their disputes before a civil Court and to get a proper adjudication on their rights to immovable property. When the parties have already gone to the civil Court and the civil Court is already seized of the matter, it seems to me that there is no longer any scope for invoking Section 145. Section 145, Criminal Procedure Code, enjoins upon the Magistrate a certain duty and that duty is to see that the parties who have a civil dispute do not take the taw into their own hands and commit breach of peace.
The duty is to see that the parties actually go to a civil Court and not fight about the land. If the parties have already gone there, the Magistrate has no longer any duty to perform. If the criminal Courts should start parallel proceedings in respect of a matter which is pending before a Civil Court, I have no doubt that it* will have the effect of undermining respect for the authority of civil Courts with the result that the very objective of Section 145 will be defeated. When, therefore, there is a choice between Section 145 and Section 107 before a Magistrate by reason of the pendency of civil litigation, it seems to me perfectly obvious that he must choose Section 107 and not Section 145, Criminal Procedure Code.
8. For all these reasons I hold that the order of the Additional Sessions Judge and the Sub-Divisional Magistrate, are perfectly correct. There is no substance in this revision petition and the same is dismissed.