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M.C. Pally Vs. B. Kambil and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1969CriLJ331
AppellantM.C. Pally
RespondentB. Kambil and ors.
Cases ReferredLal Chand v. Smt. Amarauti
Excerpt:
.....place their dispute before a civil court and get proper adjudication of their rights to immovable property, the criminal court has no power to compel them to resort to the civil court. it may be that the magistrate may better take action under section 107, or even under section 144 as suggested by narasimham c. of the allahabad high court, that the magistrate may take action either under section 145 (section 147) or under section 107. it cannot be said that the magistrate has no jurisdiction under section 145, or under section 147 in a case like this, and has jurisdiction only under section 107, or under section 144 as opined by narasimham c. i repeat that it may even be better to proceed under either of the latter two sections. when a civil litigation is pending, the criminal court..........has to make an enquiry as to possession, which may be quite contrary to title supported by a decree of a civil court, whereas if the matter falls within section 147 and has been adjudicated upon by a civil court, then the magistrate has no jurisdiction to enquire into a claim which is entirely contrary to that court's decree.4. in the mysore high court the same question came up before hegde j.; and the learned judge has distinguished the decision of narayana pai j., vide imambu v. hussenbi air 1960 mys 203. hegde j. has stated that a criminal court is not deprived of its jurisdiction to proceed under section 145 in respect of immovable property merely because it is the subject-matter of a civil litigation pending in a civil court. the learned judge has considered several decisions.....
Judgment:
ORDER

T.C. Raghavan, J.

1. Two questions of law are raised in this revision petition by the counsel of the petitioner who is one of the members of the B Party in a proceeding under Section 147 of the Code of Criminal Procedure. The first is whether the dispute in question relating to a right to have separate services conducted in a church by the B Party comes within the purview of Section 147. to call for action by the Magistrate. The counsel argues that the alleged dispute likely to cause a breach of the peace in the present case does not relate to a right of user of any land or water, so that Section 147 is inapplicable to the case. I do not think there is any force in this contention: and it has been uniformly held by almost all the High Courts in India that such a dispute relating to a right to perform service in a place of public worship like a church falls within Section 147 of the Code of Criminal Procedure. I do not propose to discuss this question at any length, because the decision of this Court in Kunhammad Makkaru v. Abdul Rahiman 1961 Ker LT 329 : 1961 (2) Cri LJ 234, has considered the question in detail referring to the several decided cases; and I am in agreement with the view expressed by Govinda Menon J. in, the said case.

2. The next and the more important question raised is whether the pendency of a civil suit is a bar for action under Section 147 by the Criminal Court. On this question, the counsel of the petitioner has relied on a decision of the Mysore High Court by Narayana Pai J. The decision is Malkappa v. Padmanna AIR 1959 Mys 122. The learned Judge has said that the provisions of Section 145 should not be invoked when a civil litigation about the identical subject-matter is pending; and that when there is a choice between Sections 145 and 107 of the Code before a Magistrate by reason of the pendency of the civil litigation, the Magistrate must choose Section 107 and not Section 145. In the course of the judgment Narayana Pai J. has observed that the very purpose of Section 145 is to prevent the breach of public peace at the instance of parties, who should, like law-abiding citizens, place their dispute before a Civil Court and not take the law into their own hands.

3. The counsel has also placed the old decision of a Division Bench of the Bombay High Court in In re Anya Shidya Patil AIR 1927 Bom 654, where Fawcett J. has stated that if the matter which is in dispute under Section 147 has actually been adjudicated upon by a Civil Court, then a Magistrate has no jurisdiction to enquire into a claim. which is entirely contrary to that Court's, decree. In this Bombay case, it may be pointed out, there was a decree of 1915; and the proceedings under Section 147 were started over 10 years thereafter, the subject-matter of the proceedings being the subject-matter of the decree itself, Fawcett J. appears to have made a distinction between Sections 145 and 147 of the Code, and also appears to say that under Section 145 the Magistrate has to make an enquiry as to possession, which may be quite contrary to title supported by a decree of a Civil Court, whereas if the matter falls within Section 147 and has been adjudicated upon by a Civil Court, then the Magistrate has no jurisdiction to enquire into a claim which is entirely contrary to that Court's decree.

4. In the Mysore High Court the same question came up before Hegde J.; and the learned Judge has distinguished the decision of Narayana Pai J., vide Imambu v. Hussenbi AIR 1960 Mys 203. Hegde J. has stated that a Criminal Court is not deprived of its jurisdiction to proceed under Section 145 in respect of immovable property merely because it is the subject-matter of a civil litigation pending in a Civil Court. The learned Judge has considered several decisions on the question by several High Courts and has pointed out that there are three different points of view emerging from the decisions: one, a Magistrate acting under Section 145 is not bound by the decision of a Civil Court and it is obligatory upon him to assume jurisdiction and consider the decision of the Civil Court only as one piece of evidence; two, though the Magistrate is not bound by the decision of a Civil Court, since the enquiry before him is a summary one and his decision is subject to the decision of a Civil Court, he should respect any recent decision of a competent Civil Court regarding the possession of the property in dispute; and three, the Magistrate is bound by the decision of a Civil Court and must use his power under Section 145 to implement that decision and not to act in derogation of it. Hegde J. has also pointed out that the preponderance of judicial opinion is in support of the second view. The learned Judge has distinguished the decision of Narayana Pai J. and has observed that Narayana Pai J. could not have intended to lay down as a proposition of law that a Criminal Court should not proceed under Section 145 in respect of immovable property which is the subject-matter of a civil litigation pending in a Civil Court.

5. Yet another ruling brought to my notice is the decision of R.L. Narasimham C.J. in Bansmali Mohapetra v. Bajra Nahak : AIR1964Ori204 . The learned Chief Justice has held in this case that in a proceeding under Section 145 the decree passed by a Civil Court regarding possession must be respected and the losing defendant should not be allowed to allege his possession in spite of the decree passed against him. Narasimham C.J. has said that in a case of this kind proceedings under Section 107 or, if necessary, even under Section 144, should be started; and that the starting of a proceeding under Section 145 would encourage defiance of the decree of a Civil Court, and paralyse the administration of justice.

6. On the other side, the counsel of the respondents has cited the decision of a Full Bench in Tikuda v. State (FB), and another decision of the same High Court by Sarjoo Prosad C.J. in Chairman, Municipal Board, Bhadra v. State ILR (1961) 11 Raj 1180, following the Full Bench. The Full Bench has said that if a dispute about immovable property is pending before a Revenue or Civil Court and one of the parties moves a Magistrate to take proceedings under Section 145 of the Code of Criminal Procedure, the Magistrate should not lightly proceed in the matter; he should weigh and consider whether there is a real apprehension of the breach of the peace and whether the same could be averted by proceedings under Section 107 of the Code; but, however, this does not mean that the Magistrate has no jurisdiction to proceed under Section 145 and his jurisdiction under that section is ousted simply because a suit is pending in a Civil or a Revenue Court. As already stated, Sarjoo Prosad C.J. has followed this in the later decision.

7. Another decision cited by the counsel of the respondents may also be referred to: Lal Chand v. Smt. Amarauti 1963 (1) Cri LJ 512 (All). This is a decision of J.D. Sharma J. of the Allahabad High Court; and the learned Judge has observed that it is the duty of the Magistrate to maintain the right of the parties, when such rights have been determined by a competent Civil Court within a time not remote from that of his taking proceedings under Section 145; that the Magistrate has no right in such a case to compel a party to go back to the Civil Court; that when a civil litigation is pending, the more appropriate course would e to take proceedings under Section 107, but where the rights of the parties have been determined by a Civil Court, the Magistrate had a choice between Sections 145 and 107; and that if he preferred Section 145, no interference in revision so as to neutralise the effect of the decree of the Civil Court will be justified.

8. There is no justification for thinking, as has been done in the Bombay Division Bench ruling, that there is a distinction between Sections 145 and 147 on this aspect. Section 145 applies to cases where the expected breach of the peace stems from a dispute regarding possession of immovable property, while Section 147 relates to an expected breach of the peace as a result of a dispute regarding the right of user of immovable property. In either case, the question whether the existence of a civil suit regarding the dispute is a bar to the proceeding under the Criminal Procedure Code is the same and no distinction need be drawn between the two.

9. The decision of Narayana Pai J. (and similar decisions) that the existence or a civil litigation is a bar to action under Section 145 does not appear to be quite happy in its result. Though, in a case like this, the parties should place their dispute before a Civil Court and get proper adjudication of their rights to immovable property, the Criminal Court has no power to compel them to resort to the Civil Court. By the Magistrate refusing to take action under Section 145 a breach of the peace, which the section is intended to prevent, will result. It may be that the Magistrate may better take action under Section 107, or even under Section 144 as suggested by Narasimham C.J. I am also of the opinion, as suggested by Sharma, J. of the Allahabad High Court, that the Magistrate may take action either under Section 145 (Section 147) or under Section 107. It cannot be said that the Magistrate has no jurisdiction under Section 145, or under Section 147 in a case like this, and has jurisdiction only under Section 107, or under Section 144 as opined by Narasimham C.J. I repeat that it may even be better to proceed under either of the latter two sections. But, 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. In this connection, it may be instructive to note Sub-section (10) of Section 145, which lays down that nothing in the section shall be deemed to be in derogation of the power of the Magistrate to proceed under Section 107. This shows that the powers under Section 145 do not override the powers under Section 107; it may even indicate that the powers under the two sections may overlap.

10. Wherefore, the order of the Magistrate cannot be impugned merely on the ground of absence of jurisdiction due to the pendency of the civil suit.

11. I may add that in a case where there has been a recent order of a Civil Court (even an interim order), the Criminal Court shall give effect to it and not pass an order in derogation of that order. If there had been considerable lapse of time alter the order of the Civil Court and the circumstances and evidence placed before the Magistrate show that there might have been a change in the situation alter the order of the Civil Court, the Magistrate may act even against the finding of the Civil Court; but this course should be adopted only cautiously.

12. I shall make the position clear even at the risk of repetition. When a civil litigation is pending, the Criminal Court will do better to take action either under Section 107 or under Section 144, though the pendency of the civil litigation does not by itself deprive the Criminal Court of its jurisdiction under Section 145 or under Section 147: the Civil Court has the power primarily to decide disputes regarding immovable property and the Criminal Court must give effect to the decision of the Civil Court; the Criminal Court must always treat the order of the Civil Court, if one is in existence though it be an interim order, as to have settled the dispute between the parties: but, if subsequent to that order (it is here that the question whether the order of the Civil Court is recent or old becomes relevant) there has been a change in the situation, the Criminal Court may take that also into consideration in shaping its order: and in taking the last-mentioned course, the Criminal Court must always act cautiously bearing in mind that its function is only to prevent a breach of the peace and it is the function of the Civil Court to settle disputes regarding possession or user of immovable property.

13. In this case there has been a recent order of a Civil Court; and what the Magistrate has done is only to give effect to that order. The order of the Magistrate is thus just and proper.

14. The criminal revision petition is dismissed.


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