IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION NO.2909 OF 2007 DATE: 05.03.2010 Between: Puvvala Vara Prasadarao …… Petitioner/A- Party Respondent. And: State, rep. by the S.I.Police, Bheemunipatnam, Visakhapatnam and another …..Respondents/B-Party respondent. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION NO.2909 OF 2007 ORDER: This petition is filed by A-party respondent under Section 482 Cr.P.C., for quashing proceedings in M.C.No.8 of 2007 dated 16.4.2007 of the Sub Divisional Magistrate, Visakhapatnam under Section 145 Cr.P.C. On information placed by the Sub Inspector of Police, Bheemunipatnam Police Station in Crime No.140 of 2007, the Sub Divisional Magistrate issued order under Section 145(1) Cr.P.C restraining both A-party and B-party respondents from entering into schedule mentioned land until further orders and also calling upon them to appear before him in person or through Advocate and file written statements in support of their ownership and actual and lawful possession of the land in dispute. The Sub Divisional Magistrate also appointed the Tahsildar, Visakhapatnam (Rural) Mandal as ‘Receiver’ for the schedule land until further orders, directing the Tahsildar to take possession of the same and keep the same in his possession until further orders. The land in question is in S.No.158/3B of Madhurawada village of Visakhapatnam (Rural) Mandal. Even from the impugned order dated 16.04.2007 passed by the Sub Divisional Magistrate in M.C.No.8 of 2007, it is evident that A-party respondent purchased land measuring Ac.1.27 cents in S.No.158/3B of Madhurawada village under Registered Document No.843207 dated 7.2.2007 from Nagothi Appala Narasamma and others; whereas B-party respondent purchased Ac.1.52 cents in S.No.158 of Madhurawada village from Banka Suribabu and others through Registered Document No.4355/2003 dated 22.12.2003. It is alleged that when A-party respondent with his followers entered into the land, B-party respondent and his followers objected them and that as a result of the same, tension prevailed around the disputed land. The Sub Divisional Magistrate observed that there is every likelihood of causing breach of peace and disturbance to public tranquility by A-party and B-party respondents and their men. According to the petitioner, the property was inherited by his three vendors from their father. Both the parties lodged reports against each other in Bheemunipatnam Police station. While so, the 2nd respondent/B-party respondent filed O.S.No.487 of 2007 on the file of I Additional Senior Civil Judge, Visakhapatnam seeking permanent injunction on 13.04.2007 and also filed I.A.No.372 of 2007 therein seeking temporary injunction. Therefore, it is contended by the petitioner’s counsel that when there is civil suit pending in competent civil court with regard to the same subject matter between the same parties, initiation of proceedings under Section 145 Cr.P.C is bad in law. It is also further contended that the Sub Divisional Magistrate cannot take possession of the property nor appoint a Receiver straightaway without following the procedure that too when the civil suit is pending. Here itself it may be noted that order, if any, passed under Section 145 Cr.P.C., is always subject to result in civil proceedings. The 2nd respondent’s counsel placed reliance on Jhummamal alias Devandas v. State of M.P[1] wherein it was observed and held as follows:- “We fail to understand how the High Court in this case took advantage of the decision of this Court in Ram Sumer’s case. The ratio of the said decision is that a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject matter. That does not mean that a concluded order under Section 145 Cr.P.C., made by the Magistrate of competent jurisdiction be set at naught merely because the unsuccessful party has approached the civil court. An order made under Section 145 Cr.P.C deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party therefore must get relief only in the civil court. He may move the civil court with properly constituted suit for may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached. Counsel for the respondent, however, suggested that having regard to the nature of dispute and the rights of parties relating to the property in question, we should not exercise our extraordinary jurisdiction under Art.136 of the Constitution. We do not think that the contention could be accepted in view of the patently erroneous order of the High Court. In the result, we allow the appeal, set aside that order of the High Court and restore that of the Magistrate. The parties may work out their rights as per law.” Thus, pendency of civil proceedings is no ground for quashing of proceedings under Section 145 Cr.P.C. Order passed by the Sub Divisional Magistrate, Visakhapatnam under Section 145 Cr.P.C., basing on possession, will always be subject to civil suit to be filed by the unsuccessful party before appropriate civil court for declaration of his title and for possession of the disputed land. The civil suit which is now stated to be pending in I Additional Senior Civil Judge Court, Visakhapatnam as O.S.No.487 of 2007 is only a suit for permanent injunction simplicitor and not a suit for declaration of title. Therefore, it cannot be said that proceedings under Section 145 Cr.P.C are not maintainable before the Sub Divisional Magistrate. The Sub Divisional Magistrate has to necessarily follow the procedure prescribed by law before passing final order. In the result, the petition is dismissed. ____________________________________ SAMUDRALA GOVINDARAJULU, J. Date:05.03.2010 Gk. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION NO.2909 OF 2007 DATE:05.03.2010. Gk [1] AIR 1988 SC 1973