Prakash Chandra Prasad vs State of M. P. and Others

P. K. Jaiswal, J.

The petitioner has filed an application u/s 19 of the Administrative Tribunals Act, 1985 before the State Administrative Tribunal, Jabalpur challenging the order dated 28-9-1996 (Annexure A/8), passed by the respondent No. 1-State by which a warning has been issued to the petitioner to the effect that in future he will function in accordance with law and that he should enhance his knowledge about law. During the pendency of this petition the State Administrative Tribunal has been abolished and therefore the matter has been transferred to this Court.

Brief facts of the case are that in the year 1994 the petitioner was posted as Sub Divisional Magistrate, Sagar. During his tenure as Sub Divisional Magistrate one Amarsingh and Sahabsingh, initiated proceedings u/s 145 of the Code of Criminal Procedure against Ram Singh and Gulab Singh on the ground that there were serious disputes between the parties in respect of possession of land of Survey Nos. 525, 517, 180 having total area 14.65 acres, situated at village Majhgawan of District Sagar and the said dispute would cause breach of peace between the parties and, therefore, prayed for passing a prohibitory order against party No. 1. The Sub Divisional Magistrate called the report from the police station Bahariya of District Sagar and thereafter registered a case vide Case No. 99 of 1995. In the application u/s 145 of Criminal Procedure Code notices were issued to the other party. During the pendency of the proceedings, on 20-2-1995, an application u/s 146(1) of Criminal Procedure Code was filed. The Sub Divisional Magistrate fixed the case for hearing on 22-2-1995 and without issuing any show cause notice to the other party (Party No. 1) heard the party No. 2 and passed the prohibitory order dated 10-3-1995. The party No. 1 aggrieved by the said order and filed a criminal revision before the learned III Additional Sessions Judge, Sagar vide Criminal Revision No. 36/96. In the said revision, they pointed out that in respect of the same land a Civil Suit (C. S. No. 6-A/94) was pending in which an application for temporary injunction filed by party No. 2 was rejected on 27-4-1994. It is also pointed out by party No. 1 that the learned Sub Divisional Magistrate without issuing any show cause notice to the party No. 1 and without giving an opportunity of hearing passed a prohibitory order on 10-3-1995. The learned Additional Sessions Judge after hearing the parties passed the order dated 14-8-1995 (Annexure A/5) and made certain observations against the present petitioner. The matter was referred to the State Government whereas the State Government on the basis of the observations made by the learned III Additional Sessions Judge, Sagar passed an order dated 28-9-1996 (Annexure A/8) and warning has been issued to the petitioner. By this action the petitioner is aggrieved and filed this petition on the ground that the said order has been passed without issuing any show cause notice to the petitioner and without affording an opportunity of hearing to him.

It is also contended by learned counsel for the petitioner that the observation made by the HI Additional Sessions Judge is contrary to the record of the case and in support of the said contention, he drew my attention to the order dated 20-2-1995,22-2-1995 and 10-3-1995 respectively.

On the other hand, learned Dy. Advocate General drew my attention to the averments made in the return and submitted that prior to the impugned order of warning dated 28-9-1996 show cause notice was issued to the petitioner. The petitioner replied the same and thereafter the State Government passed the impugned order on 28-9-1996. It is also pointed out that the warning has been issued to the petitioner because of his conduct during the discharge of his official functions as a judicial authority and while passing the judicial order u/s 145 of Criminal Procedure Code and therefore the State Government has not committed any legal error in issuing warning to the petitioner.

I have heard learned counsel for the parties and perused the record of the case.

The primary objective of section 145, Criminal Procedure Code is the prevention of the breach of the public peace arising in respect of a dispute relating to immovable property. In order to achieve the object, the section enables the Magistrate to settle the matter temporarily so far as the criminal Courts are concerned and to maintain the status quo until the rights of the parties are decided by a competent Court. An order made u/s 145, Criminal Procedure Code deal only with factum of possession of party as on a particular day. The order is subject to decision of Civil Court. The Civil Court has jurisdiction to give finding different from that which the Magistrate has reached. In the case of Mahant Ram Saran Dass v. Harish Mohan and another, (2001) 10 SCC 758 the Apex Court held that where civil suit for declaration of title was already pending and Court had passed order of injunction, the Magistrate cannot entertain application u/s 145, Criminal Procedure Code fact that applicant before Magistrate was not arrayed as party before Magistrate as party defendant would be immaterial.

In the present case when the proceedings u/s 145 of Criminal Procedure Code was initiated by the party No. 2 against the party No. 1, before the petitioner, the Civil Suit No. 6-A/94 was pending between the parties in which temporary injunction application of the party No. 2 was rejected on 27-4-1994 and it was found that party No. 1 was in possession of the disputed land. The initiation of the parallel criminal proceeding is not permitted where question of possession of the disputed property is decided by Civil Court. The proper course for the party No. 2 was to initiate a proceeding u/s 107 of Criminal Procedure Code. Peace can be achieved by proceedings u/s 107 of Criminal Procedure Code. The petitioner who was learned Magistrate had erred in passing ex parte order, without issuing notice to the party No. 1. The Revisional Court allowed the revision and made the following observations in paras 3, 4, 7 and 9 which reads as under :

Under section 146(1) of the Code of Criminal Procedure, 1973 before passing the attachment order opportunity of hearing and prior notice to the parties for valid attachment in case of emergency is not necessary but normally the Magistrate should provide opportunity of hearing and notice to the other party and in spite of notice having not been served upon opposite party if he did not appear and the situation was explosive attachment could be ordered. In the present case no finding was recorded by the petitioner that attachment order dated 10-3-1990 was made on the ground of emergency and without issuing notice to the other party the said order was passed.

It is well settled that no order u/s 146(1) of Criminal Procedure Code could be passed while the matter was pending before Civil Court for adjudication of title and possession. Thus, I am of the considered view that the revisional Court has not committed any illegality in setting aside the attachment order dated 10-3-1995 passed in an application u/s 146(1) of Criminal Procedure Code on the ground that in Civil Court case regarding disputed property was pending and application for temporary injunction filed by the party No. 2 was rejected on 27-4-1994.

On perusal of the order-sheet dated 20-2-1995, 22-2-1995 and order dated 10-3-1995 it is not in dispute that before passing the order dated 10-3-1995 in the application filed by party No. 2, u/s 146(1) of Criminal Procedure Code no notice was issued to the party No. 1 against whom prohibitory order was passed by the petitioner. It is also not in dispute that in respect of the same land, civil suit was pending between the parties and in the civil suit party No. 2 filed an application for grant of temporary injunction which was rejected on 27-4-1994 in Civil Suit No. 6-A/94. Considering these facts, it cannot be said that the learned Sub Divisional Magistrate has passed the order dated 10-3-1995 after issuing notice to the party No. 1. It is also not in dispute that before passing the impugned order of warning show cause notice was issued by the State Government on 25-9-1995 (Annexure A/6), asking the petitioner to explain the adverse finding made by the III Additional Sessions Judge. Learned counsel for the petitioner drew my attention to the reply filed by him vide Annexure A/7 on 4-10-1995. In paras 2 and 3 of the reply though the petitioner tried to point out that the order has been passed after issuing show cause notice to party No. 1 but on perusal of the record, I found that no notice was issued to the party No. 1 prior to passing of order dated 10-3-1995. Thus, it cannot be said that the observation made by the III Additional Sessions Judge in paras 7 and 9 in its order dated 14-8-1995 is contrary to the record of the case. After considering the aforesaid facts, I am of the considered view that the respondents have not committed any error in passing the impugned order dated 28-9-1996, gave a warning to the petitioner, to be cautious in the future and to make endeavour to improve his knowledge about law.

It is well settled that warning is not a penalty specified in Rule 10 of M. P. Civil Services (Classification, Control and Appeal) Rules 1966 and as such does not require the adoption of a detailed enquiry procedure as contemplated under Rule 14 of the Rules of 1966. An opportunity was given to the petitioner and there has been adequate compliance with the principle of natural justice.

It is not disputed by learned counsel for the petitioner that warning to the petitioner to make endeavours to improve his knowledge about law is not a punishment under the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 and circular issued by the State Government from time to time. The competent authority while considering the punishment of warning considered the facts and circumstances under which the warning has been given to the petitioner and thereafter passed the impugned order which does not constitute punishment and it will not come in the way of the petitioner for his further promotion.

For the above mentioned reasons, the petition filed by the petitioner has no merit and is accordingly dismissed but without any order as to costs.