A. Narayanan vs The Revenue Divisional Officer, The Inspector of Police and A. Ramasamy

S. Tamilvanan, J.—Heard Mr. R.M. Makesh Kumaravel, learned Counsel appearing for the Petitioner, Mr. S. Muthu Venkatesan, learned Government Advocate appearing for the first and second Respondent as well as Mr. PT. S. Narendravasan, learned Counsel appearing for the third Respondent.

Challenging the order, dated 04.10.2010 made in Na.Ka. No. 3190/2010/A3, dated 04.10.2010 on the file of the Revenue Divisional Officer, Usilampatti, Madurai District, this Criminal Revision has been preferred.

It is an admitted fact that the Petitioner and the third Respondent are brothers and they have two other brothers and the legal heirs of their deceased brother, one Radhakrishnan, apart from two of their sisters. The suit property and other properties were originally belonged to their mother, one Kondamma, who died intestate and there is is a civil dispute between the Petitioner and the third Respondent.

It is seen from the impugned order that on the complaint given by the third Respondent against the Petitioner, the first Respondent, Revenue Divisional Officer, Usilampatti directed the second Respondent, Inspector of Police, T.Kallupatti Police Station to enquire the matter and submit his report. Based on the report, the first Respondent passed the impugned order, dated 04.10.2010.

Learned Counsel appearing for the third Respondent submitted that there is no error in the impugned order passed by the first Respondent. According to him, the Petitioner herein was causing disturbance to the possession and enjoyment of the property by the third Respondent herein. It is admitted by the Petitioner as well as the third Respondent that the civil suit in O.S. No. 285 of 2010 on the file of the District Munsif Court, Thirumangalam is pending between the parties.

As per the operative portion of the impugned order, the first Respondent herein has stated that to maintain law and order u/s 145 of the Code of Criminal Procedure, both the parties are restrained from using the property till the civil dispute reach its finality.

As contended by the learned Counsel appearing for the Petitioner, the power vested with the first Respondent, Executive Magistrate is only to maintain law and order and he could neither decide the title nor the possession of an immovable property. Similarly, no injunction can be granted by the first Respondent.

The Hon''ble Supreme Court in Amresh Tiwari v. Lalta Prasad Dubey reported in AIR 2000 SC 1504 has held that the law relating to the scope of 145 Code of Criminal Procedure has been settled by the decision of the Apex Court in the case of Ram Sumer Puri Mahant Vs. State of U.P. and Others, , wherein it has been held as follows:

When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding u/s 145 of the Code. There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal Court in a matter like the one before us. Counsel for Respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the civil Court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue.

In the instant case, admittedly the civil suit is pending between the Petitioner and the third Respondent with regard to the immovable property and therefore, the first Respondent cannot pass any prohibitory order restraining the Petitioner and the third Respondent from using the property. The order is admittedly in the nature of prohibitory injunction. Such a power is not vested with the first Respondent, as per Section 145 of the Code of Criminal Procedure.

The first Respondent has passed an order in the nature of a prohibitory injunction, hence, this Court is of the view that the order has been passed beyond the jurisdiction of the first Respondent u/s 145 Code of Criminal Procedure an the same is not legally sustainable and liable to be set aside.

While passing orders u/s 145 Code of Criminal Procedure, the first Respondent, being Sub-Divisional Magistrate (Executive Magistrate) can act on the report submitted by the Inspector of Police having jurisdiction to maintain law and order. However, he cannot initiate a proceeding, based on the complaint given by one party and ask the Inspector to enquire and submit report, so as to take any action, based on the report, as it would not be in the real sense of maintaining law and order.

As the order passed by the first Respondent is not in accordance with the provisions u/s 145 Code of Criminal Procedure, I find it just and reasonable to allow this criminal revision petition and set aside the impugned order, dated 04.10.2010 passed by the first Respondent.

It is made clear that both the parties are at liberty to seek appropriate remedy before the Civil Court, since the dispute relates to an immovable property, belongs to their mother.

It is a well settled proposition of law that an order passed by the Civil Court is binding on the Executive Magistrate and the parties, hence, both the parties are directed to seek appropriate relief through civil court and shall not cause disturbance to law and order.

With the above observations, this Criminal Revision Petition is allowed. Consequently, connected miscellaneous petition is closed.