Proceedings U/S 145 CrPC Has To Be Discontinued If Civil Suit For Possession Or Declaration Of Title Of Same Property Is Pending: Allahabad HC

The Allahabad High Court (Lucknow Bench) has observed that where a civil suit for possession or declaration of the title in respect of the same property is pending, the proceedings under Section 145 CrPC are liable to be discontinued.

The Bench of Justice Karunesh Singh Pawar also ruled that a Magistrate exercising jurisdiction under Section 145 CrPC cannot withdraw the proceedings upon the application given by a party to it, rather, it can do so only after his subjective satisfaction.

The case in brief

An application was moved by the Revisionist (Jitendra Kumar) before the SubDivisional Magistrate Kadipur on August 13, 1997, praying that respondent no.1 (Anil Kumar) be restrained in interfering with his possession over the property in dispute.

Thereafter, a similar application was filed by the respondent as well, before the SDM Kadipur. To this, the SDM concerned issued a direction to the Station In-charge, Police Station Kadipur to conduct an inquiry and submit its report within a week.

In the report submitted by the Station in Charge, it was submitted that due to the dispute of partition, there had been ample tension between both the parties and which could disrupt the peace at any time.

After being primarily satisfied, the SDM passed an order under Section 145 (1) Cr.P.C. and both the parties were directed to remain present before it and file the evidence in support of their claim.

However, within a few days, the revisionist filed an objection before the SDM against his preliminary order stating that since there is no possibility of disruption of peace and law and order between the parties, therefore, he may be permitted to withdraw his case.

Consequently, the SDM dropped the proceedings under Section 145 Cr.P.C. while giving a finding that there is no likelihood of disruption of peace as the first party (revisionist) had himself prayed that there is no likelihood of disruption of peace.

This order was challenged by the respondent before the Additional Sessions Judge, Sultanpur, which set aside the SDM's order and directed him to pass a fresh order after hearing the parties on merits.

Now, challenging this order of the ASJ, Sultanpur, the Revisionist (first-party/Jitendra Kumar) moved to the High Court.

Court's observations 

At the outset, the Court noted that the parties in the proceedings under Section 145 CrPC are not in the role of plaintiff/defendant in a civil suit, and the proceedings are initiated not on the application of any party but from the movement of the subjective satisfaction under Section 145 CrPC is recorded by the Magistrate.

"...the parties before the Magistrate under Section 145 Cr.P.C. are not in a position of plaintiff or defendant; there is no first party or the second party; they do not have any right upon the adjudication of the dispute; the proceedings under Section 145 Cr.P.C. starts with the subjective satisfaction of the 9 Magistrate; accordingly no party has right to give an application for withdrawal of proceedings; likewise the Magistrate exercising jurisdiction under Section 145 Cr.P.C. cannot withdraw the proceedings upon the application given by a party to it rather it can do so only after his subjective satisfaction, and the parties have no independent right," the Court further added.

Now, regarding the decision over discontinuing the proceedings under section 145 CrPC in the instant case, the Court noted that a civil dispute for possession or declaration of the title in respect of the same property was already pending adjudication before the High Court.

Consequently, referring to the Apex Court's ruling in the case of Amresh Tiwari vs. Lalta Prasad Dubey and another (2000) 4 SCC 440, the Court decided to discontinue Section 145 CrPC proceedings in the instant case while noted thus:

"...since the proceedings regarding possession or declaration of the title in respect of the same property are pending under the Consolidation of Holdings Act before this Court, wherein question of title adjudicated by the Consolidation Courts, namely, Consolidation Officer, Settlement Officer of Consolidation and Deputy Director of Consolidation is to be adjudicated, it will not be proper to allow the proceedings under Section 145 Cr.P.C. to continue at this stage."

Case title - Jitendra Kumar v. Anil Kumar And Another [CRIMINAL REVISION No. - 431 of 2000]

Case Citation: 2022 LiveLaw (AB) 225

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