Vijay Singh and others vs Shanti

A.P. Chowdhri J.

Facts necessary for the disposal of criminal miscellaneous No. 5802 of 1988 are that there was a dispute with regard to possession over the land in dispute between Shanti Devi on the one hand and Vijay Singh etc. on the other hand. On an application made, by the former, proceedings under section 145 of the Code of Criminal Procedure was initiated by the Sub Divisional Magistrate, Rohtak. A civil suit between the parties was also pending with regard to the same property. The civil court directed the parties to maintain status quo till decision thereof. The learned Sub Divisional Magistrate terminated the proceedings under section 145 of the Code of Criminal Procedure on the ground that dispute between the parties was pending in the civil Court whose decision was to be final and binding. Smt Shand Devi filed a revision before the learned Sessions Judge, Rohtak. It was allowed by the learned Additional Sessions Judge by order dated 15.7.1988. The learned Judge relied on the laid down by the Divisional Bench in Mohinder Singh v. Dilbag Rai, 1976 PLR 803. It was held therein that there was no bar in proceedings under section 145 of the Code of Criminal Procedure of the Court simultaneously going on during the pendency of the civil suit. Accordingly, the learned Sub Division Magistrate was directed to take further action according to law on the application under section 145 of the Code of Criminal Procedure made by Smt. Shanti Devi. Against that order Vijay Singh etc filed revision No. 875 of 1988 which stands admitted. The revisionpetitioner i.e. Vijay Singh etc. have moved this application with a prayer that further proceedings before the SubDivisional Magistrate under section 145 of the Code of Criminal Procedure be stayed till decision of the revision petition. This prayer has been opposed.

There is no dispute that proceedings under section 145 of the Code of Criminal Procedure can simultaneously go on when a dispute is pending between the parties in the civil court. Mr. S. K Jain, learned counsel for the revision petitioners contended that if the learned Sub Divisional Magistrate were to take action under section 146 of the Code of Criminal Procedure by attaching the property or by appointing a receiver, it will tantamount to passing the order contrary to the order of the civil Court. He, therefore, seeks limited relief that the learned Sub Divisional Magistrate may be directed has ruled action under section 146 of the Code Criminal Procedure. He not to take action upon Iqbal Singh v. The State of Haryana and others, 1955 PLR 438 and Mst. Manzooran v. The State or Punjab and others, 1988(1) CLR 39. Learned counsel for the respondents (Smt. Shanti) has. on the other hand, on Mohinder Singh''s case (supra) and Jagdish alias Jagdish Kumar v. Sub Divisional Magistrate, Panipat, 1987(1) Recent Criminal Reports 433 : 1987(1) PLR 206 (vide para 5)

Once it is found that the learned Sub Divisional Magistrate can proceed under section 145 of the Code of Criminal Procedure, it would be extraordinary to give him direction how to exercise his powers in respect of the particular proceedings before him. If and when any person feels aggrieved by any order passed by him (Sub Divisional Magistrate) he can have his remedy according to law. It is, therefore, not considered appropriate to issue any direction whether the learned Sub Divisional Magistrate should or should not take action under section 146 of the Code of Criminal Procedure. The proceedings before the learned SubDivisional Magistrate take within its sweep not only proceedings under section 145 but under section 146 of the Code of Criminal Procedure as well. I would, therefore, on the question of principle hold that it is not a fit case in which this Court should issue any directions to the SubDivisional Magistrate not to take action under section 146 of the Code of Criminal Procedure in the case in hand. In so far as question of precedent is concerned, the proceeding under section 145/146 can go on. This is so in accordance with the law laid down in the aforesaid Division Bench Judgment in Jagdish Kumar''s case (supra) (vide para 5). The application for stay is accordingly dismissed.