Thayammal and Others vs Krishna Chetty and Others

Natarajan, J.—Proceedings under S. 145, Cr. P. C. initiated at the instance of the Inspector of Police, Pennsgaram are sought to be quashed by means of this Criminal Miscellaneous Petition,

What is urged on behalf of the petitioners is that the first petitioner, acting as guardian and mother of her two sons, who are petitioners 2 and 3, has obtained a preliminary decree for partition against her husband and others in a civil suit and as such the Civil Court has seisin of the matter and therefore, the Criminal Court has no jurisdiction to entertain the proceedings under S. 145, Crl. P.C.

It appears that the first petitioner''s husband, one Ovi Reddiar had sold the property in dispute to a third party even in the year 1964. Later, he seems to have effected sale of the same property in favour of yet another party. It is in such circumstances, the dispute regarding possession of the land has arisen and on account of which ''proceedings under S. 145, Crl.P.C. have been initiated.

The contention of the learned counsel for the petitioners that because the Civil Court is apprised of the dispute, proceedings under S. 145, Crl. P.C. cannot be maintained is without substance. The learned counsel for the petitioners places reliance on M.C. Pally Vs. B. Kambil and Others, in support of his contention. But, that was a case relating to conducting separate service in a church. That case has nothing to do with the question of possession.

The other case relied on by the learned counsel for the petitioners is M. Varghese v. Kuriacko Chacko 1970 M.L.J. Crl. 229. That is a case where a party, after initiating proceedings under S. 145, Crl. P. C. went to a Civil Court and obtained an order of appointment of receiver and on account of that it was held that the Civil Court had taken jurisdiction of the case and placed the property under custodia legis and therefore, the Magistrate was not entitled to proceed with the enquiry under S. 145, Crl. P.C.

The last case cited is Usharani Bej v. Mongol Munda 1970 (2) Cri. L. J. 1298. In that case, the order passed under S. 145, Crl.P.C. was deprecated, because the records disclosed that even prior to the order being passed, one of the parties had already obtained an order of injunction from a Civil Court.

In the instant case, even though the petitioners have obtained a decree for partition and separate possession, that has no bearing on the question of present possession. In such circumstances, it cannot be said that the Criminal Court has no jurisdiction to entertain a petition under S. 145, Cr. P. C. which is mainly for avoiding breach of peace. This petition, therefore, fails and stands dismissed.