P.Goutham Reddy vs State Of Ap
2022 Latest Caselaw 5079 AP

      THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

            CRIMINALPETITION No.866 OF 2019

ORDER:

This Criminal Petition, under Section 482 of the Code of

Criminal Procedure, 1973, is filed to quash theproceedings in

M.C. No.36/2019 on the file of 2nd respondent- Tahsildar and

Mandal Executive Magistrate, Vijayawada North Mandal,

under Section 145 of the Code of Criminal Procedure, 1973

(CrPC) in Crime No.639 of 2017 of S.N.Puram police station,

Vijayawada city.

2. In the order dated 31.01.2019 passed in the

aforesaid M.C. No.36/2019, it is stated that the informant viz.

the Station House Officer, S.N.Puram police station,

submitted a report stating that the respondents in the said

order quarreled between them over an immovable property

admeasuring 325 square yards in R.S. No.192/1 and 126/6

of Satyanarayanapuramof Vijayawada North Mandal, and

from the report of the informant, having satisfied that the

feelings of the above respondents were bitterly strained and

that they are likely to commit acts of violence involving

breach of peace causing disturbances to public tranquility,

the impugned order came to be passed by 2ndrespondent,

calling upon the respondents therein to attend before him in

person or by an advocate on 09.02.2019 at 11.00 PM and put

in written statements of their respective claims as regards the

actual possession of the subject property.

3. Heard Sri Y.V. Ravi Prasad, learned senior counsel

appearing for petitioners and the learned Additional Public

Prosecutor representing 1st respondent-State. Though notice

was served on unofficial respondents, they did not choose to

make appearance.

4. Learned senior counsel appearing for the

petitioners contended that a case in crime No.637 of 2017 of

S.N.Puram police station was registered for the offences

punishable under Sections 341, 352, 420, 447, 468, 471,

506, 509, 193 read with 120B and 34 IPC against

1stpetitioner and others and investigation was taken up, and

later, 1st petitioner gifted 225 square yards out of the

disputed site in favour of 2nd petitioner on 08.11.2017. It is

his further submission that in respect of the said crime, the

Station House Officer of S.N.Puram police station submitted a

report on 09.04.2018 before 2nd respondent for initiation of

proceedings under Section 145 CrPC, but no action was

initiated till today on the said report, and thereafter, in the

year 2019, in respect of the self-same crime with the same set

of accusations made in the year 2018, police

suomotusubmitted a report once again before 2nd respondent,

pursuant to which the impugned order came to be passed. It

is his submission thatwithout there being any reference from

any one that there is every likelihood of breach of peace,

police ought not to have submitted the report before 2nd

respondent with the same set of accusations that are made in

the year 2018.

The learned senior counsel further contended that Writ

Petition No.31977 of 2018 was filed by the petitioners before

this Court challenging the notice of demolition followed by

order of demolition dated 28.08.2018 issued by the Municipal

Corporation, Vijayawada, and by an order dated 06.09.2018,

this Court granted status quo with regard to subject

construction, and this Court seized of the entire proceedings

by virtue of the interim order, and when the said Writ Petition

is still pending before this Court, police submitting the report

to 2nd respondent-MandalExecutive Magistrate, and the

MandalExecutive Magistrate calling upon the parties to put in

written statements of their respective claims with regard to

actual possession of the property in dispute, is nugatory and

would lead to multiplicity of proceedings.

The learned counsel further submits that though

notices were served on the unofficial respondents, they did

not choose to come on record for the reasons best known to

them.

5. On the other hand, learned Additional Public

Prosecutor contended that the proceedings, initiated under

Section 145 CrPC, becomes nugatory once the period of one

year is completed.

6. This Court has perused the record. 2nd

respondent-Mandal Executive Magistrate passed the order

dated 31.01.2019in M.C.No.36/2019 stating that the

informant viz. Station House Officer, S.N. Puram police

station submitted a report stating that the respondents in the

said order quarreled between them over an immovable

property admeasuring 325 square yards in R.S. No.192/1

and 126/6 of Satyanarayanapuram of Vijayawada North

Mandal, and from the report of the informant, having satisfied

that the feelings of the above respondents were bitterly

strained and that they are likely to commit acts of violence

involving breach of peace causing disturbances to public

tranquility, the order came to be passed by 2nd respondent,

calling upon the respondents therein to attend before him in

person or by an advocate on 09.02.2019 at 11.00 PM and put

in written statements of their respective claims as regards the

actual possession of the subject property.

7. A perusal of the report submitted by the Station

House Officer, S.N.Puram police station would go to show

that there is a site in dispute bearing D.No.23-37-8,

Bhagatsingh road, S.N.Puram, Old Survey No.192/1,

R.S.No.126/1, Vijayawada Urban, Municipal Ward No.44,

Assessment No.5104, Old Assessment No.17860A/9, New

Assessment No.446071, to an extent of 325 square yards with

boundaries- East: Bukkapatnam Tirumala Laxmi

Narasimhacharyulu site 39 feet; South: Dasari

Pushpavatamma site 75 feet; West: Municipal road 39 feet

and North: Municipal Road 75 feet. Respondent No.7 in B

Group (R.3 herein) gave a complaint stating that she owned

the above site 325 square yards inherited to her from her

husband G.Radhakrishna who expired, and her husband

received the said site in the partition from his father Uma

MaheswaraRao, who purchased the site from

PulleramsettiVenkateswarlu of Guntur on 12.10.1949 for

Rs.1500/- under registered sale deed. She further stated that

without her knowledge, 1st respondent of A group (1st

petitioner herein) purchased the said site from her elder son

viz. 3rd respondent of A group (6th respondent herein) with

fake bequeath (will) created and fabricated by 1st petitioner

herein with the assistance of other members of A group. In

respect of the said dispute, a case in crime No.639 of 2017 of

S.N.Puram police station was registered for the offences

punishable under Sections 341, 352, 420, 447, 468, 471,

506, 509, 193 read with 120B and 34 IPC against

1stpetitioner and others. Both the parties are claiming

ownership over the said property and created law and order

problem in the locality.

8. Admittedly, in respect of the said incident, the

Station House Officer, S.N. Puram police station submitted

information to 2nd respondent-Mandal Executive Magistrate

on 09.04.2018. But, 2nd respondent-Mandal Executive

Magistrate has not initiated any action till today basing on

the report submitted by police in the year 2018. Thereafter,

admittedly, the police suomotufiled a report before 2nd

respondent-Mandal Executive Magistrate, without there being

any reference from any of the member of either group,

andpursuant thereto, 2nd respondent-Mandal Executive

Magistrate passed the impugned order dated 31.01.2019 in

M.C.No.36/2019. There is absolutely no explanation as to

why 2nd respondent-Mandal Executive Magistrate has not

initiated any action pursuant to the information submitted by

police with the same set of facts in the year 2018, and what

weighed 2nd respondent-Mandal Executive Magistrate to

initiate the subject proceedings without there being any new

set of facts, is not known.

9. It is an admitted fact that there is a litigation

pending between the members of both the groups in respect

of the subject property. The petitioners filed Writ Petition

No.31977 of 2018 before this Court in respect of the

constructions in subject property against the municipal

authorities and this Court, vide order dated 06.09.2018,

ordered status quo and the said Writ Petition is pending

adjudication before this Court. Admittedly, this Court seized

of the matter. Initiation of the proceedings under Section 145

CrPC would be nonest and multiplicity of litigation in respect

of the same dispute would lead to unintended consequences.

10. The Hon'ble Supreme Court, in Amresh Tiwari v.

Lalta Prasad Dubey and another (in a judgment dated

25.04.2000, held as follows:

"The law on this subject matter has been settled by the decision of this Court in case of Ram Sumer PuriMahant v. State of U.P. & others, reported in 1985 (1) S.C.C. 427. In this case, it has been held as follows:

"When the 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 under Section 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."

11. A Division Bench of the Composite High Court in

its judgment dated 04.12.2017 in YelugubantiHariBabu v.

State of Andhra Pradesh rep. by its Principal Secretary,

Revenue Department Writ Appeal No.1817 of 2017 (2018 (1)

ALD 455), held as follows:

"The object of Section 145 CrPC is to maintain law and order, and prevent the breach of peace by maintaining one or other of the parties in possession, and not for evicting any person from possession. (Ashok Kumar v. State of Uttarakhand (2013) 3 SCC 366). The scope of enquiry under Section 145 CRPC is in respect of actual possession without reference to the merits or claim of any of

the parties to a right to possess the subject of dispute. (Ashok Kumar (supra)). The order, passed under Section 145 (1) thereof, is an executive order. It does not determine the rights of the parties in respect of the subject land for which it operates. Such an order does not also determine any rights either with respect to possession or about ownership of the parties which may be agitated by the parties before the Civil Court or any other adjudicatory forum. ... An order, under Section 145 (1) CrPC is passed primarily to ensure that a breach of peace does not occur. The import of such an order cannot travel beyond that.

(NagabhaiMerabhaiBharvad - Thro' v. State of Gujarat (Judgment in Crl.Rev.Appl. No.654 of 2014, dated 31.01.2013 (Gujarat High Court))."

12. Existence of the circumstances stipulated in

Section 145 CrPC is a condition precedent for formulation of

the requisite opinion and if the existence of those conditions

is challenged, Courts are entitled to examine whether those

circumstances existed when the order was made. If it is

shown that the circumstances do not exist or that they are

such that it is impossible for anyone to form an opinion

therefrom, the opinion can be challenged on the ground of

non-application of mind or perversity or on the ground that it

was formed on collateral grounds and was beyond the scope

of the Statute. If the satisfaction regarding the existence of

any of the conditions stipulated in Section 145 (1) CrPC is

based on no evidence or on irrelevant and extraneous

considerations, the Court will be justified in quashing such

an illegal order.

13. The satisfaction which the Executive Magistrate

should arrive at, in order to exercise the powers conferred on

him under Section 145 (1) CrPC, is that an existing dispute,

concerning any land is likely to cause a breach of peace. For

an order to be passed thereunder, the requirement of Section

145 (1) CrPC is that (i) a dispute concerning any land should

exist; (ii) the existing dispute should be such as is likely to

cause a breach of peace. It is evident that a dispute exists,

between the parties, concerning the subject land. Mere

existence of a dispute would, however, not suffice, because

what is required under Section 145 (1) CrPC is that the

existing dispute, concerning any land, must be one which is

likely to cause a breach of peace. Not all criminal offences,

alleged to have been committed concerning land, would

attract Section 145 (1) CrPC and while such allegations would

undoubtedly necessitate investigation and action being taken

to bring the offenders to book, if may not suffice for an order

to be passed under Section 145 (1) CrPC.

14. In the case on hand, it is pertinent to mention

here that though the case in crime No.639 of 2017 of

S.N.Puram police station was registered in the year 2017 and

a reference was made by police on 09.04.2018 to initiate

proceedings under Section 145 CrPC, 2nd respondent-Mandal

Executive Magistrate did not choose to take any action basing

on the said report filed by police. Thereafter, without there

being any further material or without there being any

reference by any one that there is likelihood of breach of

peace, basing on the same set of facts, police resorted to file

another reference on 28.01.2019, and basing on the same,

2nd respondent-Mandal Executive Magistrate initiated the

subject proceedings in M.C. No.36/2019 and passed the

order dated 31.01.2019, which would become nonest.

15. Further, this Court sees no justification in

initiating the parallel proceedings under Section 145 CrPC,

when this Court seized of the matter vide Writ Petition

No.31977 of 2018 and when the Writ Petition is pending

before this Court. There is no scope to doubt or dispute the

position that the status quo order passed by this Court is

binding in the matter like the one before this Court. Though

notices were served on unofficial respondents, the

respondents have not come forward to challenge the

proposition that parallel proceedings should not be permitted

to continue, and in the event of interim order passed by this

Court, the criminal court should not be allowed to invoke its

jurisdiction, particularly when the dispute is being examined

by this Court. Virtually, the impugned proceedings leads to

multiplicity of litigation. Multiplicity of litigation is not in

the interest of the parties nor should public time is allowed to

be wasted over meaningless litigation. Further, 2nd

respondent-Mandal Executive Magistrate is not justified in

initiating the preventive proceedings after lapse of more than

two years. In view of the foregoing discussion, this Court

feels that continuation of the impugned proceedings under

Section 145 CrPC is nothing but abuse of process of Court.

16. Accordingly, the Criminal Petition is allowed.Order

dated 31.01.2019 in M.C. No.36/2019 passed by 2nd

respondent- Tahsildar and Mandal Executive Magistrate,

Vijayawada North Mandal is set aside, and the proceedings in

M.C.No.36/2019 initiated by 2nd respondent-Tahsildar and

Mandal Executive Magistrate are hereby quashed.

Miscellaneous petitions, if any pending, in the Criminal

Petition, shall stand closed.

_________________________________ JUSTICE K. SREENIVASA REDDY 10.08.2022 DRK

THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

CRIMINAL PETITION No.866 OF 2019

10.08.2022 DRK