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Geevarghese Yohannan and anr. Vs. P.J. Abraham Kathanar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1975CriLJ985
AppellantGeevarghese Yohannan and anr.
RespondentP.J. Abraham Kathanar and ors.
Cases ReferredMalkappa v. Pad
Excerpt:
.....place since the filing of the suit and that the magistrate is expected to respect and sustain the decision of civil court without prejudice to his duty of preserving public peace. air1968ker70 held that where both the parties claim that the disputed property is in their exclusive possession, there certainly is a question and dispute of possession and if the magistrate being satisfied of the fact of likelihood of breach of peace from the report of the police, places the property under attachment, he does not act without jurisdiction and that under such circumstances, pendency of a civil suit need not deter the magistrate from pursuing his ourse of action to prevent a breach of the peace, and that it is all for the magistrate's consideration whether breach it. when once a magistrate..........code will not bar a magistrate in an appropriate case from taking action under section 107 of the code. the parties have filed statements, documents and affidavits and it is said that the only thing that re-unains for rendering the final decision is the arguments on either side. under section 145 (5) of the code, it is open to any >of these parties and even to a third party to convince the magistrate that no dispute exists or existed.18. the. sum and substance of the above discussions and findings is that the jmere pendency of a civil suit will not (deprive the jurisdiction of a magistrate to take action under section 145 of the code. this point is therefore found against the 'petitioners. but this order will not stand in the way of the petitioners raising all these points before the.....
Judgment:
ORDER

S.K. Kader, J.

1. This petition is filed under Section 482 of the Code of Criminal Procedure, 1973, by the B Party in M.C. No. 1 of 1974, for quashing a proceeding instituted under Section 145 of the Code of Criminal Procedure, 1898, by the Executive First Class Magistrate Quilon

2. The subject-matter of the case is the Jacobite Syrian Puftien Church, Kundara, 'Kurissuthotti'. cemetery and the Sunday School building situated in 'one acre and one cent of land comprised in Sy. No. 654/9A in Thrippalazhikom .Muri, in Ezhukon Village, within the jurisdiction of the Executive First Class ^Magistrate, Quilon. This proceeding was instituted on the basis of a report of the 'Circle Inspector of Police, Kottarakara, submitted after enquiry into a petition iiled by the A Party before the Superintendent of Police, and duly counter-signed by the Deputy Superintendent of Police, Adoor, A-Party consists of 4 persons while B-Party, 25 persons.

3. In pursuance of the notice issued following the preliminary order, both parties appeared before the Executive First Class Magistrate and are said to have filed written statements and produced documents and affidavits.

4. While so, the present petition -was filed by the B-Party on 3-7-1974 for quashing the entire proceedings.

5. Although a number of grounds .ere taken in the petition; at the time of bearing, the Counsel for the petitioners urged only the following grounds in support of the petition.

(i) The materials on record are not sufficient to reach the satisfaction refer-xed to in Section 145 (1) to institute a ^proceeding under this section; whereas the available materials clearly disclose that the real dispute between the parties is' one regarding the user of the Church.

(ii) The Executive First Class Magistrate has no jurisdiction to invoke proceedings under Section 145 of the Code, when Civil Suits between the parties in respect of the identical properties ere pending.

(iii) The Executive First Class Magistrate ought not to have attached the cemetery and in any view, should not have '.prevented the members of the B-Party and the other parishioners belonging to their faith from making use of the cemetery.

6. I shall now consider the points rraised on behalf of the petitioners one by one. It was argued on behalf of the petitioners that the petition filed by the A-Party and the police report do not disclose any dispute regarding possession of the properties, that it is clear from them that the real dispute is regarding user of the Church and therefore the section that is applicable to the case, is Section 147 of the/ Code. The counsel for the respondents raised a preliminary point that in view of Section 145 (5) of the Code, this petition seeking exercise of the inherent powers of this Court is not maintainable. The petitioners have questioned the very .jurisdiction of the Executive First Class Magistrate to initiate the proceeding which is impugned and as such it cannot be said that this petition is not maintainable. I do not think it is right for this Court in a petition of this nature to encfuire into the question whether the materials before the Executive First Class Magistrate were sufficient to pass an order under Section 145 (1) of the Code, because the satisfaction referred to in this section is that of the Magistrate. In R. H, Bhutani v. Miss Mani J. Desai : 1969CriLJ13 the Supreme Court has observed as follows:

The satisfaction under Sub-section (1) of Section 145 is of the Magistrate. The question whether on the materials before him, he should initiate proceedings or not is, therefore, in his discretion which, no doubt, has to be exercised in accordance with the well recognised rules of tew in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the sub-section is clear end unambiguous that he can arrive at his satisfaction both from the police report or 'from other information' which must include an application by the party dispossessed. The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate.'

7. This apart, it is seen from the police report that there is dispute regarding the possession of the properties in question between the two parties, which is likely to cause a breach of the peace. When once a Magistrate referred to in Section 145 (1) is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he is empowered to pass an order under Sub-section (1) of Section 145 of the Code. Therefore, even if the allegations made in the petition filed by the A Party and the report of the police also show that there is a dispute regarding the administration of the Church and its properties, it cannot be said at this stage, on the available materials, that the only action the Executive First Class Magistrate was empowered to take was one under Section 147 of the Code.

8. Point (ii). This is the most important point stressed at the time of hearing by the counsel for the petitioners who argued the case with ability. Though the counsel cited a few decisions in support of his contention, main reliance was placed on the decision of the Mysore High Court in Malkappa v. Padmanna AIR 11959 Mys 122 : (1959 Cri LJ 621) where a Single Judge of that Court observed that the provisions of Section 145 of the Code should not be invoked when civil litigation about the identical subject-matter is actually pending. The counsel cited decisions reported in 1970 Ker LT 102 : (1970 Cri LJ 1170); 1971 Ker LT 843 and 1972 Ker LJ 349 : (1972 Cri LJ 1666) to sustain his arguments in this behalf. On 'behalf of the respondents, it was contended that the pendency or the existence of & suit is not sufficient to oust the jurisdiction of a Magistrate under Section 145 -of the Code, that the correctness of the xiecision reported in AIR 1959 Mys 122 :Q959 Cri LJ'621) has been doubted by this Court, that the decisions on, the point are conflicting and that the points in the -civil suits and this proceeding are not identical.

9. The point for decision in this case is whether the pendency of a civil suit between the same parties in respect of identical subject-matter will out jurisdiction of the Executive First Class Magistrate to initiate proceedings under Section 145 of the Code of Criminal Procedure, Decisions Qn the point by the various High Courts and also among the -Judges of the same High Court do not substantially agree, and are in some -cases, conflicting also.

10. In Mathai Varghese v. Kuri-acko Chacko, 1970 Ker LT 102 : (1970 Cri LJ 1170) while considering whether a Magistrate is bound to stay the proceedings or to cancel the order passed under Section 145 (1) of the Code on the ground that a Civil Suit in respect of the same subject-matter is pending, a learned Single Judge of this Court refused to follow the decision of the Mysore High Court in AIR 1959 Mys 122 : (1959 Cri LJ 621) and preferred to accept the view of the High Court of Raiasthan that when dispute regarding immovable property is pending before a Civil Court and one of the parties thereto moves a Magistrate to take proceedings under Section 145 of the Code, about the same immovable property, the Magistrate in a suitable case can proceed under this section.

11. In Imambu v. Hussenbi AIR 1960 Mys 203, Hegde, J., as he then was, considered the earlier decision reported in AIR 1959 Mys 122 : (1959 Cri LJ 621) explained the same and after considering a series of decisions of various High Courts in this regard held thrft the preponderance of judicial opinion is in sup- port of the view that if there is a recent decision of a competent Civil Court by which the question of possession as between the contending parties has been decided or possession was delivered to one of the parties through court, then the Magistrate should not sit on judgment over that decision, that a Magistrate acting under Section 145 of the Code ought to respect any recent decision given by a competent Civil Court on the question of possession, that this is not thei same thing as saying that the decision given by the Civil Court deprives him of the jurisdiction conferred on him by Section 145 of the Code, that the mere pendency of a suit in a Civil Court is wholly an irrelevant circumstance and this will not take away the dispute which had necessitated a proceeding under Section 145 of the Code, and the possibility of a breach of peace would still continue.

12. In M.C. Pally v. Rev. B. Kambil, 1968 Ker LT 503 : (1969 Cri LJ 331), Raghavan, J., as he then was. on considering the decisions reported in AIR 1959 Mys 122 : (1959 Cri LJ 621) and AIR 1960 Mys 203 : (1960 Cri LJ 1112) and also a few decisions of different High Courts questioned the correctness of the decision in AIR 1959 Mys 122 : (1959 Cri LJ 621). One of the questions raised therein was whether the pendency of a Civil Suit will be a bar to action under Section 145 of the Code. The learned Judge observed that the Criminal Court has no power to compel the parties to resort to the Civil Court, that by the Magistrate refusing to take action under Section 145 a breach of the peace, which the section is intended to prevent, will result, that it may be that the Magistrate may better take action under Section 107 of the Code, or even under Section 144 of the Code, that if the Magistrate chooses to act under Section 145 or under Section 147, it cannot be said that that action is without jurisdiction and he should have acted only under either of the other two sections.

13. In A. Balakrishna Pillai v. V. Raghavan Pillai, 1971 Ker LT 843, Mpidu, J., relying on the decisions reported in AIR 1960 Mys 203 : (1960 Cri LJ 1112) and 1968 Ker LT 503 : (1969 Cri LJ 331) held that it is well settled that where the Civil Court declares the title of a person to a land confirming his possession, the Magistrate cannot hold otherwise in a proceeding under Section 145 of the Code, especially when no change in the situation and the circumstances had taken place since the filing of the suit and that the Magistrate is expected to respect and sustain the decision of Civil Court without prejudice to his duty of preserving public peace. In this particular case, the petitioner against whom a fitial order under Section 145 of the Code was passed had obtained a decree from the Munsiff's Court, Trivandrum against the respondents declaring his possession which was confirmed in appeal by the appellate court.

14. In Sankara Pillai v. State, 1972 Ker LJ 349 : (1972 Cri LJ 1666) Sadasivan, J., observed that in regard to possession, the Criminal Court should yield to a finding entered by the civil court, that in the case under consideration it was evident from the materials made available that the property was recently taken delivery of through Court, that the same was in the possession f the revision petitioner in pursuance of that, and that in such a case if that possession is disturbed, the proper section Tinder which proceedings are to be initiated is Section 107 of the Code. This, as already stated, was also a case where the revision petitioner had obtained actual possession of the property by a Court delivery. The same learned Judge in Alingal Kutty v. V. Pathumma. : AIR1968Ker70 held that where both the parties claim that the disputed property is in their exclusive possession, there certainly is a question and dispute of possession and if the Magistrate being satisfied of the fact of likelihood of breach of peace from the report of the police, places the property under attachment, he does not act without jurisdiction and that under such circumstances, pendency of a Civil Suit need not deter the Magistrate from pursuing his ourse of action to prevent a breach of the peace, and that it is all for the Magistrate's consideration whether breach it. peace was imminent and whether prompt action should be taken by him, that the fact pf likelihood of a breach of peace is sufficient enough to give the Magistrate jurisdiction to pass an order under Section 145 (1) of the Code and that interference with the exercise of his discretion at the preliminary stage would not be proper.

15. I have already referred to the decision cited before me and it can , be seen that the only decision which supports the cqntention of the counsel for the petitioners is that of a Single Judge of the Mysore High Court reported in AIR 1959 Mys 122 : (1959 Cri LJ 621). In a later decision reported in. AIR 1960 Mys 203 : (1960 Cri LJ 1112), another Single Judge of the Mysore High Court explained and distinguished that decision. and stated that what really the learned Judge in that case meant was that a criminal court should respect recent decision at a competent civil court Two learned Single Judges of this Court, as] already pointed out, did not approve or ' follow the decision in Malkappa v. Pad-manna AIR 1959 Mys 122, : (1959 Cri. LJ 621), It was relying on this decision of the Mysore High Court that Sadasivan J. rendered the decision in 1972 Ker LJ 349^ : (1972 Cri LJ 1666). The facts of the pase on hand are different from the facts of the cases reported in 1971 Ker LT 84X and 1972 Ker LJ 349 : (1972 Cri LJ 1666).

16. No doubt the rights of parties; are to be settled and decided by a competent civil court and not by a criminal court. But, the very object of Section 145' of the Code is to prevent breach of the peace and the primary function of the-Magistrate under this section is to maintain law and order. This section provides. a summary remedial measure to prevent breach of public peace. The accepted principle behind this is that nobody should be allowed to take law into his own hands and disturb public peace, whether he has the best or worst claim concerning a immovable property. It may so happen-that a preliminary order under this section may deprive the rightful owner of the possession of his propery temporarily and also subject him to inconveniences. But, what is most important being the-prevention of apprehended breach of peace, considerations of this nature are only subordinate to the imperative necessity of averting immediate breach of peace and maintaining law and order by preserving peace. What is material for passing preliminary order under the section in question is the subjective satisfaction of the Magistrate. But when a Civil Suit in respect of a land or water between the same parties is pending and a interlocutory order declaring the possession of one of the parties therein is made,, a Magistrate who has been approached by one of the parties to take action under Section 145 of the Code of Criminal Procedure in respect of the identical subject-matter, must proceed with -care an# caution, and consider whether the apprehension of breach of peace cannot be averted by proceeding under Section 10T or Section 144 of the Code.

17. On a consideration of all the decisions referred to above, with' due' respect, I am of the view that the decisions reported in AIR 1960 Mys 203 : (1960 Cri LJ 1112) and of this Court it 1968 Ker LT 503 : (1969 Cri LJ 331) which have relied on the decisions of the High Courts of Orissa, Allahabad and Mysore represent the correct and reasonable views on the matter. The Magistrate who is empowered to act under Section 145 of the Code must respect and give due weight to the recent decision of a Civil Court even if it be an interim order declaring possession of a party. Even in cases where a party might have obtained a decree or an interim order of a competent Civil Court declaring his possession, there may still be dispute between the parties regarding possession and other rights, which is Hkely to lead to breach of peace. When once a Magistrate referred to under Section 145 (1) of the Code of Criminal Procedure is satisfied on the materials before him that there exists a dispute regarding possession of an immovable property which will cause or is likely to cause imminent breach of the peace, he is bound to take necessary preventive action either under Section 145 or other relevant sections of the Code. In cases where there is a decree or a recent decision of a competent Civil Court, it may be better that the Magistrate take action under. Section 107 or even under Section 144 of the Code. But this is a matter within the discretion qf the Magistrate and this will not deprive the jurisdiction of the Magistrate to act either under Section 145 or Section 147 of the ?Code. In the present case, admittedly both parties have filed civil suits in respect of the properties involved in the proceedings under Section 145 of the Code and in one case A-Party has obtained a temporary injunction against the B-Party, The materials available before this Court do not clearly or sufficiently disclose the exact points which are in dis-tpute or raised in these two suits. A copy of the order of injunction is also not before this Court to know what exactly was the ambit and nature of that order. Taking of action under Section 145 of the Code will not bar a Magistrate in an appropriate case from taking action under Section 107 of the Code. The parties have filed statements, documents and affidavits and it is said that the only thing that re-unains for rendering the final decision is the arguments on either side. Under Section 145 (5) of the Code, it is open to any >of these parties and even to a third party to convince the Magistrate that no dispute exists or existed.

18. The. sum and substance of the above discussions and findings is that the jmere pendency of a civil suit will not (deprive the jurisdiction of a Magistrate to take action under Section 145 of the Code. This point is therefore found against the 'petitioners. But this order will not stand in the way of the petitioners raising all these points before the Magistrate by producing, if necessary, more materials or -records and satisfying the Magistrate that the proper procedure in the circumstances of the case should be to take action tinder Section 107 or under Section 144 or 147 or drop or stay the proceeding under Section 145 (5) of the Code.

19. On the last point the counsel submitted that the attachment of the cemetery has caused very great hardship and harassment to the B-Party and other parishioners belonging to their section and therefore this Court should issue proper direction to enable the B-Party and the members of their group to bury their , dead in the cemetery without any hindrance. On behalf of the A-Party also it was pointed out that they also experience the same difficulties. As death may occur at any time and the burial of the dead cannot wait till the disposal of the case, it is necessary that some suitable provisions should be made in this regard by the Magistrate, to enable the parties to bury the dead. The parties can apply to the Executive First Class Magistrate Quilon, seeking permission to bury the dead and the Magistrate will pass appropriate orders and also give adequate protection, if found necessary, for carrying out his orders in this regard.

20. The Magistrate will dispose of the case within three weeks of the receipt of records by him, in accordanca with law and in the light of this order. The counsel appearing for both parties submitted that they will get ready with the case and co-operate with the Magistrate in disposing of the case as directed. In the result this petition is dismissed subject to the observations made. The records will be sent back immediately.


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