^ ^' HIGH COURT OF CHHATTISGARH AT BILASPUR (C.GJ Cr.M.P.No. 269 of 2008 Singie Bench : Hon'ble Mr. T.P. Shsrma, J. Petitioner (Applicant) Respondents (Non-App.'icants) Subhash, S/o. late Ramdas. aged about- 34 years, Occupation - Agriculture, R/o. Viilage Jarhadih, Poiice Station Batauii, Tahsil SJtepur, District Surguja (C.G.) Versus 1. Dallu, S/o late Sita Ram, aged about- 50 years, 2. Ratan, S/o. late Sita Ram, aged about - 42 years. 3. Rameshwar, S/o. late Sita Ram, Aged about - 40 years All of Caste Kanwar, R/o. Village Jarhadih, P.S. BatauSi, Tahsil Sitapur, District- Surguj'a (C.G.) 4. Keshwari W/o. iate Sita Ram, R/o. Village Jarhadih, P.S.- Dhaurpur, Tahsil - Lundra, District - Surguja (C.G.) PETITION UNDER SECTION 482 OF THE CODE OF CRiMINAL PROCEDURE Present : Shri Anup Majumdar, Advocate for the petitioner. ORDER (Passsd on 1st August, 2008) 1. This revision is directed against the order dated 25.1.2008 passed by the First Additiona! Sessions Judge, Ambikapur, Surguja in Criminal Revision No. 51/2006, affirming the order dated 28.12.2005 passed by the Court of Sub Divisionai Magistrate, Sitapur, District - Surguja in Criminal Case No.396/2006, whereby the learned Sub Divisional Magistrate has rejected the appiication under Section 145 of the Code of Criminal Procedure (for short (he "Cocte') on the ground that case relating to possession of the petitioner is pending before High Court in which non-applicants are restrained from interference in possession of the applicant. 2. Order is chalienged on the ground that in the absence of any order for protecting possession of the applicant, Sub Divisional Magistrate is empowered to decide the question of possession in terms of Section 145 of the Code, but learned Sub Divisional Magistrate as well as revisional court has failed to decide the same and committed grave illegality. 3. Shri Anup Majumdar, counsei for the petitioner is heard. 4. Copy of the order impugned and copy of the order dated 20.8.2004 passed in Second Appeal No. 227/2008 bythe High Court is perused. 5. It is argued on behaif of the applicant that there was dispute between the parties relating to possession of the land in question. On the ground of possession of the property, the applicant has filed application under Section 145 of the Code before S.D.M., Sitapur but the same has been rejected on the ground that previousiy possession has been protected by the High Court. He is further submitted that on 20.8.2004 High Court has passed the order of status quo, it is exist in today. Court has not protected the possession of the appiicant, therefore, even in the pendency of Civil proceedings, Executive Magistrate is competent to decide the matter under Section 145 ofthe Code but they are not decided the dispute. 6. Petitioner has placed reliance in the matter of Mohinder Singh v. Dilbagh Rai^, in which it has held that in pendency of the Civil suit between parties does not mean the ouster of the jurisdiction of the Executive Magistrate under Section 145 of the Code. Executive Magistrate is still competent to decide the matter under Section 145 ofthe Code. 7. Further reliance has been placed reliance in the matter of Prakash Chand Sachdeva v. The State ofDelhi2 in which it has held that proceeding 31977 CRI.L.J. 1029 (Punjab & Haryana High Court) 2 A1R 1994 Supreme Court1436 &^ ^' under Section 145 of the Cr.P.C. cannot be dropped on the ground of pendency of civil suit for injunction when suit is not based on title but raises question only of dispossession of a co-owner by another, co-owner. 8. Petitioner has further placed reliance in the matter of Ram Sumer Puri Mahant v. State of U.P. & ors.3 in which it has held by the Apex Court that pendency of civil litigation- Dropping of pendency of civil proceedingsis permissible. 9. Petitioner has further placed reliance, in the matter of Smt. Neelam Singh & anr. v. State of State of U-P. and anr., in which it has been held that in case of order of status-quo only and not giving any direction about actual physScal possession - Would not bar proceeding under Section 145. 10. In the jnstant case both the Courts below has after taking into consideratjon, the order of civil court and civil appeal pending before High Court rejected the application under Section 145 of the Cr.P.C. Order dated 20.8.2004 of this Court in Second Appeal No.277/2002 perused, this is a biparty order. after hearing of both the parties court has passed the order: "Learned counsef for the appellants submits that after effecting the partition beiween the parties a portton of ST€land on which they are in possession, came in ffise share of the appellants but some how that was mutated in the name of the respondents and on the strength of that the respondents are trying to dispossess ffie appellants. Having heard leamed counsef for the parties and having regard to the facts and circumstances of the case ie parties are directed to maintain the status ? AIR 1985 Supieine Courl 472 4 V QUO as exists foday. provided the appellants shall furnish a solvent surety in a sum of Rs.50,000/- to the saffsfaciion of fhe Mal Court w in a period of 30 days from today for due pertormance of the judgment/decr^ which may ultimately be pas^d by thisCourt." 11. It is clear from the order that after hearing both the parties and on the basis of argument that present applicant is in possession of the property and present non-applicants are trying to dispossess the applicant. Order of status quo as exist today (that day) is passed. After passing of the order by Civil Court relating to status-quo without specifying are giving any direction about the actuai physical possession. Order under Section 145 of the Code was passed but in the instant case order of status quo has been passed. After hearing of both the parties and taking into consideration the fact that applicant is in possession and non-applicant is trying to dispossess the applicant. The case of Smt. Neelam Singh (Supra) is distinguishable on the facts. 12. After placing reliance in the case of Ram Sumer Puri Mahant (Supra), Apex Court has heid that, the criminal court should not be allowed to invoke its jurisdiction particulariy when possession is being examined by the civii court and parties are in a position to approach the Civil Court for interim orders such as injunction for adequate protection of the property during pendency of the dispute. 13. In the instant case, parties has avaited remedy. Case Js pending before this Court. applicant has approached the High Court and also order has passed on 20.8.2004. Dubey 14. In the case of Mohinder Singh (Supra). it has been held by the High Court of Punjab & Haryana, in pendency of the Civil suit between parties does not ought the jurisdiction of the Executive Magistrate under Section 145 of the Code and Executive Magistrate is still competent to decide the matter under Section 145 of the Code. While dealing with the provisions of Section 145 of the Code High Court of Punjab & Haryana has also observed that parties were in a position to show any authority of the Apex Court in this regard. This is a case of 1977 and after 1977, Apex Court has declared the law in the matter of Ram Sumer Puri Mahant (Supra). After the declaration of law by the Apex Court in the matter of Ram Sumer Puri Mahant (Supra), this judgment is no helpful to the applicant. 15. In the instant case court below has rejected the appiication on the ground of pendency of civil litigation and order relating to possession over the property. The Court below has rightly rejected the application. 16. The learned Sessions Judge has not committed any illegaltty or infirmity in the order impugned. 17. Consequently, the revision being devoid of merit is iiable to be dismissed and it is hereby dismissed. Sd/- T.P. Sharma Judge