Awdesh Kumar Choudhary v. The State of Bihar & Ors.

Patna High Court Cr.Misc. No.29194 of 2011 (11) dt.08-02-2013 2 In this case the question that has been raised about the precedence of the order of the Magistrate which has been passed under section 145 read with Section 146(1) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) vis-à-vis with the order that has been passed by civil court in civil suit. In the present case the order of attachment of the property has been passed by the Sub Divisional Magistrate, the Circle Officer was appointed as receiver but the order could not have been effected. The Sub Divisional Magistrate in derogation of the order of status quo passed in civil suit insisted for the implementation of his order that this led to filing of the present case. A proceeding under section 144 of the Code was initiated with regard to disputed land appertaining to khata No. 45, Plot No.330, area 337 sf out of total area 1 acre 82 decimals. A show-cause was filed by the petitioner on

10.1.2007 being not satisfied with the same, the proceeding was converted into 145 proceeding, vide order dated

17.12.2008 the property in question was attached under section 146(1) of the Code. The Circle Officer, Pupri vide letter no.570 dated 2.11.2009 informed the Sub Divisional Magistrate that it would not be possible to attach the land as Patna High Court Cr.Misc. No.29194 of 2011 (11) dt.08-02-2013 3 from outside there was/is shutter but inside valuable materials were lying surrounded by boundary wall having passage from roof side, it would be difficult to seal the shop provided material lying be shifted to other safe place as at later stage opposite party no.2 may claim compensation for the loss. The Sub Divisional Magistrate vide order dated

15.7.2010 again reiterated the order and asked the Circle Officer to send compliance report to him. Before the order could have been effected a Title Suit No.330 of 2010 was filed before Sub-Judge, Sitamarrhi in connection with the land which is the subject matter of 145 proceeding. The civil court vide order dated 31.1.2012 passed the order of status-quo in between the parties. It appears from the record, the Circle Officer in compliance of the order of the Sub Divisional Magistrate issued a letter dated 13.12.2012 asking the Inspector of the Police Station to provide the police force for implementation of the order of attachment passed by the Sub Divisional Magistrate and the copy was sent to the petitioner. The Circle Officer in compliance of order of attachment, sealed and put the lock to the disputed godown and thereby executed the order of the Sub Divisional Magistrate, Pupri. Patna High Court Cr.Misc. No.29194 of 2011 (11) dt.08-02-2013 4 This Court in the present case vide order dated

10.1.2013 passed the order of status-quo as existing today in between the parties. Again the case was listed on 11.1.2013 and this Court has stayed the letter/order vide memo no.675 dated 31.12.2012 issued by the Circle Officer, Pupri. But it appears that due to communication gap the Circle Officer, Pupri was not informed the above orders of this Court, ultimately put the lock and seal the premises in compliance of the order passed by the Sub Divisional Magistrate under section 146(1) of the Code. Learned counsel for the petitioner submits that though there was order of the Sub Divisional Magistrate but it was never executed/effected but in the meantime orders of status-quo intervened and when the civil court passed the order it will have a precedence over the order passed by the Sub Divisional Magistrate, Pupri under section 145 of the Code read with Section 146(1) of the code. He has further submitted that two parallel proceedings, one under Section 145 of the Code and another under the civil suit cannot run parallel and the proceeding of civil court will prevail over the proceeding of the Magistrate court and in support of his contention he has relied on two judgments in the case of Patna High Court Cr.Misc. No.29194 of 2011 (11) dt.08-02-2013 5 Mithalesh Kumar and another Vs. The State of Bihar and others, reported in 2007(2) BBCJ 259 and in the case of Binod Sharma Vs. The state of Bihar and another, reported in 2007(2) BBCJ 465. He has also relied on another judgment in the case of Rejeshwar Prasad and others Vs. The State of Bihar and another, reported in 2006(3) PLJR

335. Learned counsel for opposite party no.2 has accepted the position of law that in case of two parallel proceedings precedence will have to be given to the proceeding of the civil court and the proceeding under section 145 of the Code will give passage to the proceeding of civil court but at the same time he has submitted that before the order of status quo could have been passed by the Civil Court, the Sub Divisional Magistrate had already passed the order under section 146(1) of the Code by which he attached the property and as such there is nothing wrong in the order under section 146(1) of the Code so much so when the civil court did not appoint any receiver as provided under the Code. He has further submitted that the Circle Officer has merely executed the earlier order of attachment which has nothing to do with subsequent order of status-quo Patna High Court Cr.Misc. No.29194 of 2011 (11) dt.08-02-2013 6 and the order of status-quo would not come in the way of executing the order of attachment in view of the fact that till today no receiver has been appointed by the civil court. Having considered the rival contentions of learned counsel for the partiers this Court in number of cases as aforesaid has held that in a case when civil suit and proceeding under Section 145 of the Code has been initiated, the precedence will be given to the civil court proceeding and in that circumstances the order of civil court will come into play in place of the order passed under section 145 of the code. In this view of the matter, it will be proper for the parties to approach the appellate court to challenge the interim order of trial under the facts and circumstances, the proceeding under section 145 of the Code has lost it relevancy. In this case also apparently it is clear that the order of status-quo was passed by Civil Court before order under section 145 of the Code could have been executed and the order of attachment has been effected on 12.1.2013 i.e. after the order of status-quo and stay passed by this court as well as by the civil court. In this situation when the order of Patna High Court Cr.Misc. No.29194 of 2011 (11) dt.08-02-2013 7 status quo and stay was passed by this Court as well as the order passed by Civil Court, in that circumstances, action of Circle Officer, Pupri de horse to the order of this court and civil court in executing the order of the Sub Divisional Magistrate of attachment per se illegal and cannot be approved. In this view of the matter, the Circle Officer is directed to open the lock of the godown. As has been informed by counsel from both sides, opposite party no.2 against the order of status-quo has moved in appeal vide Misc. Appeal No.2 of 2012 which is pending before the District Judge, Sitamarhi. The District Judge will decide the appeal expeditiously without any delay and the order passed by this Court will not have a bearing on the merit of the case. As the dispute is pending before the civil court in title suit, the proceeding before the Sub Divisional Magistrate in connection with 145 proceeding is quashed. With the aforesaid observation and direction this application is allowed. Vinay/- (Shivaji Pandey, J)