Ramji Bind and Another vs State of U.P. and Others

Palok Basu, J.—The only point involved in the present proceeding is as to whether in view of decision of Ram Sumer''s case 1985 A CrR 108 : 1985 AWC 128, as explained in Jummamal case 1988 A CrR 573 : 1988 WC 1163, the present proceedings u/s 145 Code of Criminal Procedure should continue any further in view of the suit pending before the civil court filed by one of the parties.

The short facts are that on the police report dated 3-10-1988 Magistrate issued an order u/s 145 Code of Criminal Procedure. In view of urgency of the matter as reported by the police, an order u/s 146 Code of Criminal Procedure was drawn up on the same day i.e. 31-12-1988. According to Annexure ''CA-7'' attachment memo was drawn up by the supurdgar appointed by the Magistrate court on 6-l-1989. In the rejoinder affidavit, however, it is strongly disputed that, in fact, no attachment was done at the spot and the applicants Ramji Bind and Bachanoo Bind remained and continued to be in possession of the disputed house. As stated above the stand of the opposite parties is that the property was put in attachment in pursuance of the order of the Magistrate dated 31-12-1988.

In order to bring into effect the observations of the Hon''ble Supreme Court in the aforesaid two cases, it is but necessary that a clear cut finding be arrived at on three points-firstly whether the subject matter in the proceedings u/s 145 Code of Criminal Procedure is the same which is the property in dispute before the civil court, secondly, whether the proceedings before the Magistrate''s court will amount to parallel proceedings in view of the dictum of the Supreme Court and thirdly whether the concerned party can or should approach civil court for appropriate remedy for avoiding parallel proceeding u/s 145 Code of Criminal Procedure.

From the materials produced through affidavits before this Court it is not possible at this stage to record any finding to that effect. It may, however, be stated that the learned Counsel for the applicant drew attention of this Court to an order dated 12-9-1989 purporting to be an injunction order passed by the competent civil court regarding same house which is in dispute in 145 Code of Criminal Procedure proceeding. As stated above this will have to be examined in detail.

In view of what has been stated above it is hereby directed that in case parties raise issue of the applicability of two case laws cited above, the Magistrate shall decide the same as a preliminary issue within a month from the date of the receipt of this order which may be produced before him by either of the parties and then decide to drop or proceed with the case in accordance with law.

It will be advisable for parties in such similar matters to raise these questions before Magistrate instead of rushing to this Court, and, when so moved, the Magistrate may follow the Supreme Court''s decision after proceeding in the manner noted hereinbefore and recording findings on the three points detailed above.

With the aforesaid observation this application is finally disposed off. The interim order dated 27-2-1989 is vacated.