1 - Sohrab Khan S/o Shri Ismail Khan Aged About 26 Years R/o Gali v. 1 - Abhay Barua S/o Suresh Barua Aged About 30 Year
Case Details
1 2025:CGHC:15819 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1186 of 2025 1 - Sohrab Khan S/o Shri Ismail Khan Aged About 26 Years R/o Gali No. 4, Imlipara Bilaspur, P.S. Civil Lines, Tehsil And District- Bilaspur (C.G.) 2 - Shehnawaz Khan S/o Shri Ismail Khan Aged About 40 Years R/o Gali No. 4, Imlipara Bilaspur, P.S. Civil Lines, Tehsil And District- Bilaspur (C.G.) 3 - Ismail Khan S/o Md. Wazir Khan Aged About 64 Years R/o Gali No. 4, Imlipara Bilaspur, P.S. Civil Lines, Tehsil And District- Bilaspur (C.G.) ... Petitioners versus 1 - Abhay Barua S/o Suresh Barua Aged About 30 Years R/o Rajkishore Nagar Bilaspur, P.S. Sarkanda, Tehsil And District -Bilaspur, C.G. 2 - Ashish Pandey S/o Shailesh Pandey Aged About 27 Years R/o R-2, Vinoba Nagar Bilaspur, P.S. Tarbahar, Tehsil And District -Bilaspur, C.G. (Cause title taken from Case Information System) ... Respondents For Petitioners : Mr. Ratnesh Kumar Agrawal, Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.11 19:54:24 +0530 2 03/04/2025 1. The present Criminal Miscellaneous Petition under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023, against the impugned order dated 17.09.2024 passed by learned Second Additional Sessions Judge, Bilaspur, in Criminal Revision No. 4 of 2022, whereby the criminal revision filed by the petitioners has been dismissed. 2. The brief facts of the case are that on 08.06.2021, there was a
Legal Reasoning
quarrel took place between the parties with respect to the possession of a shop situated in front of Hotel Havens Park, Telephone Exchange Road, Bilaspur. It is alleged that the respondents had tried to dispossess the petitioners illegally from the subject shop. The matter was reported to the Police Station Tarbahar, Bilaspur, where an offence of Crime No. 90 of 2021 for the offence under Sections 294, 323, 506, 427 and 307/34 of IPC was registered against the present petitioners. Counter FIR of Crime No. 91 of 2021 for the offence under Sections 294, 323, 506, 452, 427/34 of IPC was registered against the respondent No.1 and his other companion. Considering the nature of dispute between the parties, an Ishtgasha No. 11/31/2021 was registered and filed before the City Magistrate, Bilaspur on 24.07.2021, where the proceeding under Section 145 of CRPC was started through Criminal Case No. 79 of 2021. 3. After issuing the notice, reply was called from the concerned parties and after recording evidence of the parties, the order has been 3 passed on 30.12.2021 and held that one Sandeep Jain is the possession holder of the shop in question and he is entitled to remain in possession until he being dispossessed in due course of law. 4. The said order dated 30.12.2021 was challenged by the petitioners by filing Criminal Revision No. 4 of 2022 before the learned Second Additional Sessions Judge, Bilaspur and after hearing the parties, the learned Additional Sessions Judge has dismissed the criminal revision filed by the petitioners vide order dated 17.09.2024, which is under challenge in the present petition. 5.
Legal Reasoning
Learned counsel for the petitioners would submit that the learned City Magistrate, Bilaspur as well as the learned Additional Sessions Judge has failed to consider that the petitioners are in possession of the subject shop two months prior from initiation of the proceeding under Section 145 of the CRPC. He also submits that the petitioner No.1 has filed a civil suit on 14.09.2021 for declaration of his title, declaration of sale deeds dated 22.05.2021 and 14.07.2021 as null and void and also for permanent injunction before the learned Principal District Judge, Bilaspur, which is pending for its consideration and therefore, the learned City Magistrate ought to have dropped the proceeding of Section 145 of CRPC, yet they have passed the order, which may affect the ultimate outcome of the civil
Decision
suit and therefore, the impugned order is liable to be set aside. 6. I have heard learned counsel for the petitioners and perused the documents annexed with the petition. 4 7. From perusal of the document (Annexure P-5), it reflects that the petitioner No.1 has filed a civil suit for declaration of title, declaring two sale deeds as null and void and also for permanent injunction before the learned Principal District Judge, Bilaspur and the same has been filed on 14.09.2021. The pendency of the said civil suit is also reflects from the order sheet dated 25.11.2021 of the City Magistrate, Bilaspur which has been annexed at Page No. 29 of the petition, although there is no document annexed in the revision of that civil suit and no case No. was also mentioned, but only the information was given that civil suit is pending, but here the copy of the plaint of the civil suit has been annexed as Annexure P-5 and the pleading to that effect has also been made in Para 4 of the memo of present petition. Since, there is no document of civil suit has been filed before the learned City Magistrate, Bilaspur in the proceeding under Section 145 of CRPC, they have passed the order on 30.12.2021 holding possession of one Sandeep Jain. 8. Be that as it may, from the document annexed with the present petition and the pleadings, it reflects that a civil suit has been filed by the petitioner No.1 on 14.09.2021 for declaration of title, declaring the sale deeds dated 22.05.2021 and 14.07.2021 as null and void and also for permanent injunction against the defendants, in which M/s. Abhyansh Buildcon is made as defendant No.8 and the partner of said M/s. Abhyansh Buildcon namely Ashish Pandey is the respondent No.2 in the present petition. From perusal of the pleadings of the civil suit, it also reflects that there is involvement of the respondent No.1 also in the entire affairs. 5 9. In the matter of Ram Sumer Puri Mahant Vs. State of UP & Others, 1985 (1) SCC 427, the Hon’ble Supreme Court has held that when a civil litigation is pending for the property with respect to its possession, simultaneous proceeding under Section 145 CrPC cannot be permitted to run together. In paragraph 2 of the said judgment it was observed as under:- “2. …...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 dependency 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 and the order of the learned Magistrate should be quashed. We accordingly allow the appeal and quash 6 the order of the learned Magistrate by which the proceeding under Section 145 of the Code has been initiated and the property in dispute has been attached…..…” 10. Further, in the matter of M. Siddique Vs. Mahant Suresh Das, 2020 (1) SCC 1 in paragraph 295, 296, 299.1 and 299.2, the Hon’ble Supreme Court has held as under:- “295. Section 145 is recognised to be a branch of the preventive jurisdiction of the Magistrate. Section 145(1) can be invoked on the satisfaction of the Magistrate that "a dispute likely to cause a breach of the peace exists...". The provision relates to disputes regarding possession of land or water or its boundaries which may result in breach of the peace. The function of the Magistrate is not to go into questions of title, but to meet the urgency of the situation by maintaining the party in possession. The Magistrate is empowered to call upon the parties to put in written statements in support of their claim to "actual possession". Such an order is to be served as a summons upon the parties. The Magistrate is to peruse the statements, hear the parties and weigh the evidence, in order to ascertain who was in possession at the date of the order. The Magistrate may make that determination "if possible" to do so. Moreover, the determination is about the factum of possession on the date of the order "without reference to the merits of the claim of any of such parties to a right to possess the subject of the dispute". These words indicate that the Magistrate does not decide or adjudicate upon the contesting rights to possess or the merits of conflicting claims. The Magistrate is concerned with determining only who was in possession on the date of the order. If possession has been wrongfully taken within two months 7 of the order, the person so dispossessed is to be taken as the person in possession. In cases of emergency, the Magistrate can attach the subject of the dispute, pending decision. The action ultimately contemplated under Section 145 is not punitive, but preventive, and for that purpose is provisional only till a final or formal adjudication of rights is done by a competent court in the due course of law. Thus, nothing affecting the past, present and future rights of parties is contemplated under the provision. 296. The object of the provision is merely to maintain law and order and to prevent a breach of the peace by maintaining one or other of the parties in possession, which the Magistrate finds they had immediately before the dispute, until the actual right of one of the parties has been determined by a civil court. The object is to take the subject of dispute out of the hands of the disputants, allowing the custodian to protect the right, until one of the parties has established her right (if any) to possession in a civil court. This is evident from the provisions of sub-section (6) of Section 146. The Magistrate declares the party which is entitled to possession "until evicted therefrom in due course of law". While proceeding under the first proviso, the Magistrate may restore possession to a party which has been wrongfully and forcibly dispossessed. No party can be allowed to use the provisions of Section 145 for ulterior purposes or as a substitute for civil remedies. The jurisdiction and power of the civil court cannot in any manner be hampered. [Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal, 20th Edn. (2016) at p. 451.] ............................… 299. Where a suit is instituted for possession or for declaration of title before a competent civil court, the proceedings under Section 145 should not continue. This 8 Court has analysed the above proposition of law in the following cases: 299.1. In Amresh Tiwari v. Lalta Prasad Dubey, (2000) 4 SCC 440, S.N. Variava, J. speaking for a three-Judge Bench of this Court held thus : "12. ... The law on this subject-matter has been settled by the decision of this Court in Ram Sumer PuriMahant v. State of U.P (1985) 1 SCC 427. In this case it has been held as follows : '2. ... 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. ... 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....' " 299.2. The Court in Amresh Tiwari [Amresh Tiwari v. Lalta Prasad Dubey, (2000) 4 SCC 440 : 2000 SCC (Cri) 806] rejected the submission that the principle in Ram 9 Sumer PuriMahant v. State of U.P. [Ram Sumer PuriMahant v. State of U.P., (1985) 1 SCC 427 : 1985 SCC (Cri) 98] will apply only after the civil court has adjudicated on the issue : "13. We are unable to accept the submission that the principles laid down in Ram Sumer case [Ram Sumer PuriMahant v. State of U.P., (1985) 1 SCC 427 : 1985 SCC (Cri) 98] would only apply if the civil court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumer 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." 11. Once, the civil suit is seized of the matter, the proceeding under Section 145/146 of the Cr.P.C. must come to an end, and the respective claims of the parties about title or possession or even the identification of the land of the parties are to be decided by the civil court. In the matter of Mohd. Abid Vs. Ravi Naresh, 2022 SCC 10 online SC 2416, the Hon’ble Supreme Court, in para 4 of its order held that:- “4. It is, however, an admitted fact that the petitioners have already filed a suit for injunction in which ex- parte ad- interim injunction has been granted by the Civil Court, Faizabad, Uttar Pradesh on 05.12.2020. Once the Civil Court is seized of the matter, it goes without saying that the proceedings under Section 145/146 Cr.P.C. cannot proceed and must come to an end. The inter- se rights of the parties regarding title or possession are eventually to be determined by the Civil Court.” 12. Thus, in the aforesaid view of the matter, since the civil court is in seisin of the dispute between the parties, without expressing any opinion on the merits of the rival claims of the party, the present petition is disposed of. However, the trial court is directed to decide the civil suit filed by the present petitioner on its own merits in accordance with law without being influenced by any of the observations made either in the order passed by the City Magistrate, Bilaspur or the order passed by the revisional court. It is also made clear that any observations made by this court shall not come in the way of trial court while deciding the pending civil suit. 13. The petition accordingly stands disposed of with the aforesaid observations. ved Sd/- (Ravindra Kumar Agrawal) Judge