Shiv Narayan Singh And Anr vs State And Ors
2022 Latest Caselaw 3476 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 284/2011

Shiv Narayan Singh & Anr.

----Petitioners Versus State of Rajasthan & Ors.

                                                                 ----Respondents


For Petitioner(s)           :   Mr. Vikram Sharma for
                                Mr. Sajjan Singh Rajpurohit
For Respondent(s)           :   Mr. M.S. Bhati, PP
                                Mr. Harish Jangid

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

07/03/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

2. This criminal revision petition under Section 397 read with

Section 401 Cr.P.C. has been preferred claiming the following

reliefs:

"It is, therefore, most respectfully prayed that this Cr. revision petition may kindly be allowed and the order impugned dt.30.03.2011 passed by the learned Addl. Sessions Judge, Bali in Cr. Revision Petition No.52/2007 [Sohan Singh & Ors. Vs. State of Raj. & Anr.], may kindly be quashed and set aside and the judgment dt.17.05.2007 passed by the learned Sub Division Magistrate, Desuri may kindly be restored."

(2 of 6) [CRLR-284/2011]

3. The controversy in the present case is limited to the extent

that the present revision petition under Section 397 read with

Section 401 Cr.P.C. has been preferred by the petitioners, against

the order passed by the Addl. Sessions Judge in Cr. Revision

Petition No. 52/2007 by which the order, dated 17.05.2007,

passed by the S.D.M., Desuri, District Pali in Cr. Misc. Case No.

11/1989, was quashed and set aside. Through the said order

dated 17.05.2007, the concerned S.D.M. had directed that the

possession of the land in dispute between the present parties, be

handed over to the petitioners, whilst upholding two judgments

passed by the learned Civil Court; the first being being Civil

Original Case No. 82 of 1993, was dismissed on 13.12.2000, and

the second being Civil Regular First Appeal No. 2 of 2001, was

also subsequently dismissed, with the concurrent finding that the

Will in question, basis which the respondents staked their claim in

relation to the property in question, was fraudulent and therefore

did not create any rights in the favour of the respondents.

4. Learned counsel for the petitioners submits that the

impugned order dated 30.03.2011, by which the learned Addl.

Sessions Judge, Bali set aside and quashed the order of the

concerned S.D.M., while remanding the matter back to the

concerned S.D.M. to decide the matter afresh, despite the earlier

order so passed being a well reasoned order, on merits of the

case.

5. Learned counsel for the petitioners placed reliance on the

following judgments rendered by the Hon'ble Apex Court:-

(3 of 6) [CRLR-284/2011]

5.1 Bharat Prasad & Ors. Vs. State of Bihar & Ors. AIR 2009

SC 2827, wherein the following was observed:

"32. In the case of Kunjbihari v. Balram and Anr. (2006) 11 SCC 66, a three-Judge Bench of this Court has held where rights of the parties have already been adjudicated upon by a different forum, the parties must respect that finding. In such a situation proceeding under Section 145 is not to be initiated to disturb the finding. In that case the High Court in a proceeding under Section 482 of Cr.P.C refused to quash the 145 proceeding. The same thing has been done here. However, this Court allowed appeal by setting aside the High Court's order as also directing that Section 145 proceeding be dropped.

33. In this case, this Court is of the opinion that if the respondents are aggrieved by the findings reached in the Bataidari proceeding they have the statutory right of the appeal to be exercised according to law. Without doing that the affect of Bataidari proceeding cannot be scuttled with the subterfuge and juggle of 144/145 proceedings. In the facts of this case, such a proceeding is an abuse.

34. For the reasons discussed above, we find that the High Court has not approached the legal issues involved in this case in their correct perspective nor considered the affect of Section 48E or Sub-section (13) of the said Act on a Section 145 proceeding.

5.2 Amresh Tiwari vs. Lalta Prasad Dubey and Anr. AIR

2000 SC 1504:

"12. The question then is whether there is any infirmity in the Order of the S.D.M. discontinuing the proceedings under Section 145 Criminal Procedure Code. The law on this subject- matter has been settled by the decision of this Court in the case of Ram Sumer Puri Mahant v. State of U.P. and Ors., reported in MANU/SC/0108/1984 : AIR1985SC472 In this case it has been held as follows:

When a 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

(4 of 6) [CRLR-284/2011]

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 net continue.

13. We are unable to accept the submission that the principles laid down in Ram Sumers' case would only apply if the civil Court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumers' case is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be Wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil Court and parties are in a position to approach the civil Court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue.

15. In this view of the matter the appeal is allowed. The impugned Order is set aside. In our view, the S.D.M. was right in discontinuing the proceedings under Section 145 Criminal Procedure Code. The Order passed by the S.D.M. on 9th of June, 1999 is restored.

6. Learned counsel for the petitioners further submits that legal

position has time and again been reiterated by the Hon'ble Apex

Court, and in this regard, he drew the Court's attention to the

judgment rendered in the case of Dharam Pal & Ors. Vs. Ram

Shri (Smt.) & Ors., (1991) 1 SCC 435, wherein it has been

held an attachment order under Section 146 Cr.P.C. comes to an

end as soon as a competent civil court decides the matter with

respect to a particular property, and therefore, the executive

magistrate is left with no option, but to withdraw the attachment

order with regard to such property.

(5 of 6) [CRLR-284/2011]

7. Learned Public Prosecutor as well as learned counsel for the

private respondents though oppose the aforementioned

submissions made on behalf of the petitioners, but could not

refute the aforementioned factual matrix.

8. Heard learned counsel for both parties, and perused the

record of the case and the judgments cited at the Bar.

9. This Court observes that in the order passed by the

concerned S.D.M., dated 17.05.2007, it was held that the

judgments passed by the Civil Courts rightly found that the Will in

question, in relation to the property in dispute between the

present parties, was forged and that the possession of the

property in dispute vested with the petitioners (heir of Late

Shivdan Singh), as reflected from the Commissioner's Report, and

that further the respondents did not have any right or interest in

the property in dispute.

10. This Court further observes that the issue in the present

case, has already been deliberated upon the Hon'ble Apex Court in

Bharat Prasad (supra) and Amresh Tiwari (supra) whereby

the Hon'ble Court found that legal position has been settled in

Ram Sumer Puri Mahant v. State of U.P. and Ors AIR 1985

SC 472, that if the rights of the parties have already been

adjudicated upon by a particular forum, then entertaining an

application under Sections 145 & 146 of the Cr.P.C. would not be

appropriate, and if it is so done, the same would result in

multiplicity of litigation, and thus, would not be in the interest of

the parties and the same would also result in wastage of public

time. This Court finds the facts and circumstances, and the legal

(6 of 6) [CRLR-284/2011]

issue in the present petition to be squarely covered by Ram

Sumer Puri Mahant (supra) and Amresh Tiwari (supra).

Thus, this Court is thus of the opinion that the S.D.M. was

perfectly justified in discontinuing the proceedings under Sections

145 and 146 of the Cr.P.C.

11. In view of the above, the present petition is allowed, and

while quashing and setting aside the impugned order dated

30.03.2011 passed by the learned Addl. Sessions Judge, Bali in Cr.

Revision Case No.52/2007, the judgment dated 17.05.2007

passed by the learned Sub Divisional Magistrate, Desuri is

restored. The record of the learned court below be sent back

forthwith. All pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI),J 111-SKant/-

Powered by TCPDF (www.tcpdf.org)