HON’BLE SRI JUSTICE B.CHANDRA KUMAR Crl.P.No.6226 of 20008 Dt: 30-04-2010 Between Nekkanti Adilakshmi Devi ………… Petitioner And The State of A.P. and others ………. Respondents HON’BLE SRI JUSTICE B.CHANDRA KUMAR Crl.P.No.6226 of 2008 ORDER: This Criminal Petition has been filed to quash the proceedings, dated 21-04-2007 in Roc.No.23/2007/A, on the file of the Mandal Executive Magistrate & Tahsildar, Penugonda Mandal, West Godavari District. 2. The brief facts of the case are as follows: The second respondent-Mandal Executive Magistrate received a report from the Inspector of Police, Penugonda Mandal, stating inter alia that the paddy crop was ready for harvest in R.S.No.2/1, for Ac.1- 99 cents in Chinamallam village and in R.S.No.45/6 for Ac.3-10 cents of Nadipudi village and that one Nekkanti Satyanarayana Murthy and Geddam Chandra Rao and others are trying to enter into the above said lands and harvest the crop with their men and that in view of the dispute between dalit people and others, the situation was tense and that there was law and order problem. 3. Basing on the said report, the Mandal Executive Magistrate, passed impugned orders stating that the Mandal Revenue Inspector-2, Penugonda, reported that the situation in and around the above said lands became tense and that a civil suit was pending between the parties and that the Mandal Revenue Inspector may harvest the paddy crop in the above two R.S. numbers and sell the same and remit the said amount to the account of O.S.No.280 of 2004 through Assistant Government Pleader, Tanuku. 4. Section 145 of Cr.P.C. reads as follows: “Section 145 - Procedure where dispute concerning land or water is likely to cause breach of peace.— (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in 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 as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by the Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties, to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thanks necessary, and, if possible, decide whether and which of the parties was, at the date of the order made by him under sub- section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1). (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub- section ( 1 ) shall be final. (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said 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; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such properly, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.” Admittedly, the Mandal Executive Magistrate has not issued any notices to the parties to attend his court in person or by pleader on a specified date and time as required under sub-section (1) of Section 145 of Cr.P.C. The words used in sub-section (4) are that the Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, pass orders. Sub-section (4) of Section 145 reveals that after giving opportunity to the parties, the Mandal Executive Magistrate is supposed to pass orders. Moreover in this case, the civil suits were pending between the parties. 5. The learned counsel for the petitioner has relied on S. VIVEKANAND SAGAR v. DADI BEE & OTHERS [1], wherein it was held that since the question of possession has necessarily to be gone into and the matter was already taken seizure of by a Civil Court of competent jurisdiction, it is not desirable that the matter be once again agitated before the learned Special Executive Magistrate. 6. In RAM SUMER PURI MAHANT V. STATE OF U.P [2], it was held that where civil litigation involving question of possession is pending, parallel proceedings in Criminal Court is not justified. 7. Since the matters have been pending in Civil Court and the question of possession of the disputed property has to be decided and even if it appears that it may be desirable and justified, the same Civil Courts may be approached for passing necessary orders. As it is reported that there was law and order problem on the date of the order i.e., 21-04-2001, the same cannot be said to be continuing even till this date. Moreover the order passed by the Mandal Executive Magistrate is temporary in nature. In view of the above circumstances, the impugned proceedings are liable to be quashed. 8. Accordingly, the Criminal Petition is allowed. The proceedings, dated 21-04-2007 in Roc.No.23/2007/A, on the file of the Mandal Executive Magistrate & Tahsildar, Penugonda Mandal, West Godavari District, are hereby quashed. _____________________ B.CHANDRA KUMAR, J Date: 30-04-2010 YCR [1] 1993 (1) ALT (Crl.) 154 [2] AIR 1985 SC 472