Continuation Of Parallel Proceeding U/S.145 CrPC Not Permissible If Civil Suit Is Pending In Civil Court Regarding Landed Property In Question: Patna High Court

The Petitioners had approached the Patna High Court with a Petition under Section 482 of the CrPC, challenging the impugned order whereby the Sessions Court had dismissed the revision petition after finding no illegality in the Sub-Divisional Magistrate’s order of attachment of the subject landed property.

The Single Bench of Justice Jitendra Kumar asserted, “It is also pertinent to point out that if a Civil Suit regarding title and possession is pending in regard to the property in question in a Civil Court, a parallel proceeding under Section 145 Cr.PC is not permissible. It would be sheer wastage of public time and money. The Civil Court is also competent to adjudicate the dispute regarding actual possession of the property between the parties and pass interim order during pendency of the Civil Suit. Hence, no purpose would be served by permitting parallel criminal proceeding under Section 145 Cr.PC by Executive Magistrate…Hence, there is no justification for continuation of parallel proceeding under Section 145 Cr.PC, if Civil Suit is already pending in Civil Court in regard to the landed property in question.”

Advocate Sanjay Kumar represented the Petitioners while APP Sanjay Kumar Pandey represented the Respondent-State.

Factual Background

The opposite party No.2 herein, Sarojani Devi, filed one petition before the Sub Divisional Magistrate for initiating a proceeding under Section 144 Cr.PC. However, the said proceeding was closed and the parties were advised to prefer Title Suit before Civil Court. The Opposite Party filed one petition under Section 145 Cr.PC, before the Sub-Divisional Magistrate against the petitioners in regard to the landed property alleging that the petitioners wanted to forcibly dispossess her which might have led to breach of peace.

The Circle Officer submitted his report stating that the purchasers of the lands are in possession, but there was a dispute among the parties in regard to the title to the property, and there was an apprehension of breach of peace. On the basis of the said report, the Executive Magistrate passed the impugned order initiating proceedings under Section 145 Cr.PC.

Devi filed an application for the attachment of the subject landed property, stating that paddy crop is standing on the land and the petitioners herein were bent upon to harvest the same, which may lead to a bloody occurrence. The same was allowed by the Executive Magistrate. The Petitioner thus filed the petition before the High Court after the dismissal of the Revision petition challenging the Magistrate’s Order.

Reasoning

On a perusal of the provisions of the CrPC, the Bench explained that after making a preliminary order under Section 145(1) Cr.PC, the Executive Magistrate can attach the subject property as per Section 146(1) Cr.PC if he considers the case to be one of emergency, or if he decides as per the inquiry that none of the parties was in possession of the subject property in terms of Section 145 Cr.PC, or if he is unable to satisfy himself as to which of the parties was then in possession of the dispute.

“Executive Magistrate is required to refer to the material facts and circumstances in his order showing emergent situation so that the higher court could independently assess the situation and test objectively whether the Executive Magistrate has applied his judicial mind for recording his satisfaction”, it said.

Referring to Sections 145 to 148 Cr.PC, the Bench observed that prior to the conclusion of the inquiry under Section 145 Cr.PC, the Executive Magistrate could attach the property only on the basis of an emergent situation as contemplated under Section 146(1) Cr.PC, which connotes much more than mere apprehension of breach of peace.

The Bench made it clear that the remedy for dispute in regard to title and right to possession lies in the civil law and the parties concerned are required to move Civil Court for the adjudication of their civil rights and interest. “Only dispute regarding actual possession of the parties giving rise to apprehension of public peace and tranquility comes under jurisdiction of Executive Magistrate under Chapter X of Cr.PC”, it added.

Coming to the facts of the case, the Bench noted that the Executive Officer did not need to pass the preliminary order under Section 145 Cr.PC. “He should have closed the proceeding initiated on the basis of the application of the said Sarojani Devi. Here the learned Executive Magistrate appears to have exceeded his jurisdiction encroaching upon that of the Civil Court, subjecting the parties concerned to unnecessary litigation before himself. He should have advised the parties to move Civil Court. I further find that Sarojani Devi has also filed one Civil Suit in the Civil Court in regard to some part of the landed property in question in regard to right, title and possession. Hence, there is no question of continuation of parallel proceeding under Section 145 Cr.PC”, it held.

Noticing that in the impugned order, the Executive Magistrate had not referred to such material facts and circumstances which may be termed as an emergent the proceedings and the parties should have been advised to move Civil Court for adjudication of their rights and title. There was no question for passing an order of attachment under Section 146(1) Cr.PC.

Thus, setting aside the impugned orders, the Bench allowed the petition and quashed the proceeding under Sections 145 and 146(1) Cr.PC.

Cause Title: Ram Padarath Singh & Ors. v. The State of Bihar & Anr. (Case No.: Criminal Miscellaneous No.41314 of 2016)

Appearance:

Petitioners: Advocates Sanjay Kumar, Jay Prakash Singh

Respondents: APP Sanjay Kumar Pandey, Senior Advocate P. N. Shahi, Advocates Manish Kumar, Aryan Singh, Ram Kumar

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