Telangana High Court

P.Krishnam Raju, Hyderabad., vs The State Of Telangana, Rep Pp 3 ... on 7 January, 2022

Bench: G.Radha Rani

        THE HON'BLE Dr. JUSTICE G. RADHA RANI

         CRIMINAL REVISION CASE No.2040 of 2016
ORDER:

This Criminal Revision Case is filed by the petitioner aggrieved

by the orders in proceedings No.A3/5114/2016, dated 17.05.2016 of

the 2nd respondent under Section 145 Cr.P.C.

2. The case of the petitioner in brief was that the 2nd respondent

issued order under Section 145 Cr.P.C. basing on the report given by

the Sub-Inspector of Police, Kohir on 15.05.2016 that there was

dispute in respect of the land in Sy.No.104, 105 and 106 situated at

Nagireddypally village of Kohir Mandal in between V. Ramachandra

Rao and others and P. Krishnam Raju regarding boundaries of the

land. Earlier also a quarrel took place between both the groups

regarding the Mango garden vide Crime No.31/2015 and 32/2015

under Sections 447, 427, 323 and 506 IPC. As there was a chance of

law and order problem, the Sub Inspector of Police requested the

2nd respondent to promulgate orders under Section 145 Cr.P.C. to

prevent law and order situation. Basing on the said report given by

the SI of police, the 2nd respondent issued orders under Section 145

Cr.P.C. directing the Tahsildar, Kohir to take possession of the

disputed land into Government custody under panchanama until

further orders and to keep a watch on the standing mango crop and not

to allow anybody to harvest the existing mango crop.

3. Heard the learned counsel for the petitioner and the learned

Public Prosecutor.

Dr.GRR,J

4. The learned counsel for the petitioner submitted that the

order under revision was wholly illegal improper and incorrect. The

2nd respondent failed to see that when civil suit O.S. No.10 of 2015

was pending on the file of the Additional Junior Civil Judge at

Zaheerabad between both the parties, he had no jurisdiction to pass

the order under Section 145 Cr.P.C. The dispute was only with regard

to an extent of Acs.21.39 gts., of land in part of Sy.Nos.104/ba and

105/ba and 106/ba at Nagireddypally village, Kohir Mandal.

However, the 2nd respondent passed an order in respect of the entire

land in the aforesaid survey numbers totally exceeding the

jurisdiction. Hence, the order under revision was wholly unsustainable

illegal, and was liable to be set aside. Dispossessing the petitioner

under the guise of the order under Section 145 Cr.P.C. was wholly

illegal, against law as well as the principles of natural justice. The

order was causing a lot of injustice to the petitioner. The order was

not passed on sound or tenable grounds and prayed to set aside the

order in proceedings No. A3/5114/2016, dated 17.05.2016.

5. Learned Public Prosecutor reported to decide the petition on

merits.

6. Perused the record. The record would disclose that the

petitioner had filed a civil suit for perpetual injunction on the file of

the Additional Junior Civil Judge, Zaheerabad, against the

respondents No.3 and 4 and four others in the month of March, 2015

and he also filed I.A No.36 of 2015 seeking the relief of temporary

injunction pending disposal of the said suit and the 3rd respondent had Dr.GRR,J

filed his written statement in the said suit and counter in the said I.A.

and was contesting the matter before the civil court. The petitioner

had also filed a private complaint before the Judicial Magistrate of

First Class, Zaheerabad on 21.05.2016 and the same was referred to

the police for investigation and it was registered as Crime No.87 of

2016 on 03.06.2016 for the offences under Sections 447, 323, 506 and

379 IPC. The orders were passed by the 2nd respondent on 17.05.2016

under Section 145 Cr.P.C. directing the Tahsildar, Kohir to take

possession of the disputed land under Government custody till further

orders. But no further orders were reported to be promulgated by the

2nd respondent till date. Admittedly, there was standing mango crop

in the said land which would need to be taken care of and no final

orders were being passed for the past five years.

7. The learned counsel for the petitioner relied upon the

judgment of the Hon'ble Apex Court in Ram Sumer Puri Mahant. v.

State of U.P. and others1 wherein it was held that:

"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 the proposition that parallel proceeding 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.

AIR 1985 Supreme Court 472 Dr.GRR,J

8. He relied upon the judgment of a Division Bench of the

High Court of Andhra Pradesh in B. Madan Mohan Reddy v. Sub

Divisional Magistrate (Khammam)2 on the aspect that parallel

proceedings with regard to same property i.e. before Civil Court and

before the Sub Divisional Magistrate under Section 145 Cr.P.C. would

not be justified. This is may be so, when in the civil proceedings

which were initiated prior to the initiation of the proceedings under

Section 145 Cr.P.C. ad-interim injunction has been granted in favour

of one of the parties to these proceedings by a Civil Court restraining

the opposite party from disturbing the possession and enjoyment. In

such a situation, a duty is cast on the Magistrate under Section 145

Cr.P.C. to see that the parties who have a civil dispute pending, do not

take the law into their own hands and commit a breach of peace and

he may resort to initiate proceedings under Section 107 Cr.P.C.

9. Section 145 Cr.P.C. is extracted in the said judgment and the

object of enacting it was discussed and the procedure to be followed

by the Executive Magistrate in the proceedings under Section 145

Cr.P.C are detailed in the said judgment as follows:

"7. For initiating proceedings under Section 145 Cr.P.C. two essential conditions must exist, firstly that the Magistrate is to satisfy himself that the dispute in relation to immovable property or water exists within his jurisdiction and secondly such a dispute is likely to cause breach of peace. Once these two conditions are satisfied, the Magistrate gets jurisdiction to pass the preliminary order in writing under sub-section (1) of Section 145 Cr.P.C stating the grounds of his being so satisfied and requiring the parties concerned to such dispute to attend his Court in person or by Pleader on a specified date and time and to put in written statements of their respective claims with respect to their factual possession of the subject of dispute. Under Clause 3, a copy of that order shall be served upon such

1998 (4) ALD 608 (DB) Dr.GRR,J

person or persons concerned to the dispute and also at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. Under Clause 4 the Magistrate shall peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them and take such further evidence, if any, as he thinks necessary and decide if possible whether any and which of the parties was on the date of the order made by him under sub-section (1), in possession of the subject of the dispute. Under sub-section (6), if the Magistrate decides that one of the parties was in such possession of such subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction. It is clear from these provisions that to initiate valid proceedings under this Section the procedure laid down therein should be strictly followed."

No such procedure appears to have been followed by the

2nd respondent in this case.

10. Learned counsel for the petitioner also relied upon the

judgment of the High Court of Andhra Pradesh in U. Ramanjaneyulu

v. State of Andhra Pradesh and others3, wherein it was held that:

"9. So from the above rulings, when the dispute touching the same subject property was either pending or already disposed of by a Civil Court, the proceedings under Section 145 Cr.P.C are not maintainable. In such an event, if the civil proceedings are pending, the Executive Magistrate shall direct the parties to obtain suitable orders from the concerned Civil Court. Similarly, if the Civil Court has already adjudicated upon the dispute relating to the same property, then the Sub-Divisional Magistrate shall direct the parties to scrupulously follow the decree passed by the Civil Court."

11. He also relied upon the judgment of the High Court of

Telangana and Andhra Pradesh at Hyderabad in Vaddu Rama Pulla

Reddy v. State of Andhra Pradesh and others4, wherein it was held

that:

"10. So, from the above rulings of the Supreme Court, when the dispute touching the same subject property is already pending in Civil Court, parallel proceedings under Section 145 Cr.P.C. are not maintainable before an Executive Magistrate. Since in the instant case, the Civil Court has already seized the

2020 (1) ALD (Crl.) 640 (AP)

2018 (1) ALD (Crl.) 940 Dr.GRR,J

matter and passed an injunction order, the impugned order passed by the Executive Magistrate is not sustainable and its continuance will be nothing but abuse of process of Court, in my considered view. The parties concerned shall vindicate their rights before the Civil Court only."

12. He also relied upon the judgment of the High Court of

Telangana in Syed Shareefuddin v. State of Telangana5 and

Kunarapu Rajalingu v. State of Telangana and 5 others6 on the

same aspect.

13. In the present case also a civil suit was filed by the

petitioner prior to initiating the proceedings under Section 145 Cr.P.C.

by the 2nd respondent and he also filed an I.A. seeking interim orders

in the said suit. When the dispute is pending before the Civil Court,

the proceedings under Section 145 Cr.P.C., are not maintainable. The

Executive Magistrate ought to have directed the parties to obtain

suitable orders from the concerned civil court. He had not called for

any evidence from the parties to decide as to who were in possession