Bombay High Court
Ganesh S/O Kishore Dawar vs The State Of Maharashtra, Through ... on 1 August, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.690 OF 2015
Ganesh s/o. Kishore Dawar,
Aged 35 years, Occ. Agrilst.,
r/o. Keshavraj Vital, Akot,
Tq.Akot, District Akola. .......... APPELLANT
// VERSUS //
1. The State of Maharashtra,
Through Sub-Divisional Police
Officer, Akot, Tq. Akot,
District Akola.
2. Police Inspector,
Police Station, Hiwarkhed,
Tq.Telhra, District Akola.
3. Sub-Divisional Officer,
Akot, Tq. Akot, District
Akola.
4. Tahsildar,
Telhra, Tq. Telhra,
District Akola.
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5. Deputy Superintendent of Land
Records, Telhara, Tq. Telhara,
District. Akola.
6. Extension Officer,
Adgaon (Bk), Tq. Telhra,
Distt. Akola. .......... RESPONDENTS
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Mr.Amol Patil, Adv. for the Petitioner.
Mr.T.A.Mirza, A.P.P. for respondent nos. 1 to 5.
Mr.J.B.Gandhi, Adv. and Mr.A.B.Mirza, Adv. for Intervenors.
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ig CORAM : B. R. GAVAI &
V. M. DESHPANDE, JJ.
DATE : 1.8.2016.
ORAL JUDGMENT (Per B.R.Gavai, J) :
1. Rule. Rule returnable forthwith. Heard by consent.
2. The petitioner has approached this Court with a prayer
to direct respondent nos. 1 to 6 to forthwith execute and implement
the order dt.18.2.2012 passed by respondent no.3 under the
provisions of Section 145 of the Code of Criminal Procedure.
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3. Criminal Application No.30 of 2016 is filed by one
Ashfaqueka s/o. Rehamankha praying for including him as a
party/respondent and opposing the relief claimed in the petition.
3. Undisputed facts are that, with respect to the subject
matter of the property, initially a Civil Suit came to be filed by
intervenor Ashfaqueka bearing R.C.S. No.33 of 2009. It was
dismissed on 29.4.2010. The orders passed by the learned Sub-
Divisional officer u/s.145 of the Code of Criminal Procedure were
passed on 18.2.2012. The same were challenged by the Intervenors
before the learned Sessions Judge by way of revision. The revision
was dismissed. The Intervenors further approached this Court by way
of Criminal Writ Petition No.477 of 2012. The same is also dismissed.
4. As such, it could clearly be seen that when the order was
passed by the learned Sub-Divisional Officer on 18.2.2012, there was
no order operating between the parties passed by the competent Civil
Court. Nodoubt that the intervenor has subsequently filed Regular
Civil Suit No.6 of 2013. However, it is not in dispute that even in the
said suit, no interlocatory order is passed in favour of the intervenor.
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5. It will be appropriate to refer to the following
observations of the Apex Court in the case of Jhunamal alias
Devandas .vs. State of Madhya Pradesh and Others reported in
AIR 1988 SC 1973.
"7. We fail to understand how the High Court in this case took
advantage of the decision of this Court in Ram Sumer's case.
The ratio of the said decision is that a party should not be
permitted to litigate before the criminal Court when the civil
suit is pending in respect of the same subject matter. That does
not mean that a concluded order under S. 145, Cr. P. C. made
by the Magistrate of competent jurisdiction should be set at
naught merely because the unsuccessful party has approached
the civil Court. An order made under S. 145, Cr. P. C. deals
only with the factum of possession of the party as on a
particular day. It confers no title to remain in possession of
the disputed property. The order is subject to decision of the
civil Court. The unsuccessful party therefore must get relief
only in the civil Court. He may move the civil Court with
properly constituted suit. He may file a suit for declaration
and prove a better right to possession. The civil Court has
jurisdiction to give a finding different from that which the
Magistrate has reached. "
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6. It could thus be clearly seen that unless a contrary order
is passed by the competent Civil Court, the concluded order passed
u/s. 145 of the Code of Criminal Procedure by the Magistrate is
required to be given effect to. In that view of the matter, we find that
the petition deserves to be allowed.
7. In that view of the matter, we allow the petition. Rule is
made absolute in terms of prayer clause (a) in the present Criminal
Writ Petition subject to compromise which is arrived at between the
present petitioner and the applicant in Criminal Application No.55 of
2016.
JUDGE JUDGE
jaiswal
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CERTIFICATE
I certify that this Judgment uploaded is a true and correct copy
of original signed Judgment.
Uploaded by : Jaiswal, P.S. Uploaded on :2.8.2016.
