D.P. Mohapatra, J.
1. The short question that falls for determination in this case is whether during pendency of a proceeding under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, 'the Consolidation Act') initiation of a proceeding Under Section 145 o1 the Code of Criminal Procedure was bad.
2. The first party in the proceeding Under Section 145, CrPC (Criminal Misc. Case No. 48 of 1991) has filed this revision petition Under Sections 397 and 401, CrPC challenging the order dated 12-11-1991 of the Executive Magistrate, Jajpur dropping the proceeding and leaving it to the parties to agitate the dispute regarding right, title, interest coupled with possession over the disputed land before the proper forum for decision.
3. The factual backdrop of the case necessary for appreciation of the point formulated earlier may be stated thus :
On perusal of the report of the Officer-in-charge, Jajpur Police Station and on being satisfied that there was likelihood of breach of peace between the parties, the learned Executive Magistrate, Jajpur registered Criminal Misc. Case No. 48 of 1991 and passed the preliminary order initiating the proceeding Under Section 145, CrPC on 13th February, 1991. In the said proceeding the petitioner was shown as the first party and the opp. parties were shown as members of the second party. As revealed from the discussions in the impugned order, in response to the notice issued by the learned Magistrate, the opp. parties-second party appeared and filed their written statement on 26-2-1991. On the application filed by the petitioner-first party on 23-2-1991 Under Section 145(8). CrPC the learned Magistrate by order dated 23-3-1991 appointed the local R. I. as receiver. The case was taken up for hearing on 20-9-1991 ; one Laxmidhar Mohanty (PW 1) and the petitioner Banamali Mohanty. (PW 2) were examined and cross-examined. At that stage on 24-10-1991 the Advocate for the second party filed a petition challenging maintainability of the proceeding Under Section 145. CrPC mainly on the ground that consolidation proceeding in village Bandhamunda had been initiated in pursuance of the Gazette Notification dated 28-10-1988 of the Revenue and Excise Department and, therefore, the proceeding Under Section 145, CrPC was liable to be dropped. On consideration of the said objection the learned Magistrate passed the impugned order, accepted the objection raised by the opp. parties-second party and dropped the proceeding.
4. On the facts discussed above, the point formulated earlier arises for determination. Before proceeding to examine the case on its merit, it will be convenient to notice some decisions of the Apex Court and of this Court which either directly deal with the point or throw light on it.
The Apex Court in the case of Ram Sumer Puri Mohant v. State of U. P. and Ors., reported in AIR 1985 SC 472 ruled that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding Under Section 145 of the Code would not be justified ; the 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. The Court observed that multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.
The said decision was considered by the Court in the case of Jhunamal alias Devendas v. State of Madhya Pradesh and Ors., reported in AIR 1988 SC 1973 and its ratio was explained in the following manner;
'...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 PC made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the Civil Court. An order made Under Section 145, Cr PC 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. He 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.'
This Court in the case of Brajamohan Nath v. Smt. Kasi Tripathy and Anr., reported in, 1984(I) OLR III, 57 (1984) CLT 145 held that mere institution of a civil suit does not take away the jurisdiction of a Magistrate to initiate a proceeding Under Section 145, Cr PC, unless an interim arrangement has been made by the Civil Court in the matter of possession by an order of injunction or appointment of receiver; the Magistrate has always jurisdiction to initiate and continue a proceeding Under Section 145. Cr PC, to prevent breach of peace and to maintain law and order irrespective of the pendency of a civil suit unless an interim order of the Civil Court with respect to possession of the disputed land is in operation. Elucidating the point, the Court observed that the primary object of Section 145(1), Cr PC, is the prevention of breach of peace arising in respect of and relating to immovable property and not to determine the right and title of the parties the Civil Court has got jurisdiction to decide the questions relating to title and matters incidental thereto; thus the jurisdiction of the Civil Court and the Criminal Court operate in different fields and the institution of any action in one does not take away the jurisdiction of the other, though for keeping harmony in the exercise of such jurisdiction by both, guidelines have been indicated in several judicial decisions.
In the case of Bhama Meher v. Kausalya Meher and Ors., reported in, 1986 (II) OLR 203, 62(1986) CLT 226 this Court considering the factual position that though the petitioner's title had been declared by the consolidation authorities and possession was delivered to him, the Executive Magistrate without respecting the decision of the competent authority initiated the proceeding Under Section 145, Cr PC, held that the initiation of the proceeding was an abuse of the process of the Court and dropped the proceeding Under Section 145, Cr PC in exercise of its inherent power.
Subsequently in the case of Dhirendranath Panda alias Misra v. Niranjan Kumar Misra and Ors., reported in, 1989 (II) OLR 495,68(1989) CLT 722 the same learned Judge (K. P. Mohapatra, J. ) considering the decision in Bhama Meher's case (supra) observed as follows :
'It cannot be laid down as an absolute proposition of law that during pendency of a civil suit, in the event of apprehension of breach of peace, a proceeding Under Section 145, Cr PC cannot be initiated by an Executive Magistrate, when it is repotted or otherwise it comes to his notice that there is serious and imminent breach of peace relating to lands between two or more parties and there is no time or it is not possible to obtain orders urgently from the Civil Court in a pending suit/case so as to avert the breach of peace which might lead to bloodshed and loss of life, the Executive Magistrate must' have to spring into action and exercise his jurisdiction Under Section 145, Cr PC. So all that can be said is that facts will differ from case to case and in appropriate cases when there has not been an interim order with regard to possession of land by the Civil Court and if the Executive Magistrate finds imminent apprehension of breach of peace, in order to prevent the same he has Jurisdiction to initiate a proceeding Under Section 145, CrPC. But if there is time and opportunity and the Civil Court in a pending suit can give relief by virtue of which breach of peace can be averted; parallel proceedings in Civil and Criminal Courts should not be permitted to continue because the intention of law is not to encourage multiplicity of proceedings for which not only public time is wasted, but the parties are also harassed to a great extent.'
(quoted from placitum)
In the case of Gaja Nag and Ors. v. Kalara Mallick and Ors., reported in 1990 (II) OLR 123 this Court relying on Bhama Meher's case and Jhunamalalias Devandas (supra), held that according to the provisions of the Consolidation Act, the consolidation authorities are exercising powers of the Civil Court in deciding disputes about movable property, therefore, if the consolidation authorities have found the possession of the subject of dispute the Executive Magistrate should honour the decision of the consolidation authority and declare possession of the parties on that basis.
In the case of Sashimani Dibya v. Bishnupriya Mohapatra and Ors., reported in 1991 (I) OLR 218, 1 had occasion to consider the question of propriety of initiating a proceeding Under Sections 144 and 145, Cr PC. during pendency of consolidation proceeding. In that case discussing the provisions of the Consolidation Act. it was held that the Act contains not only provisions for partition of the joint Property, allotment of shares to the joint owners and declaration of right, title and interest, but also for actual delivery of possession of the land allotted to the concerned land owner. Taking into account the tactual position that the consolidation authorities had disposed of the dispute ; that the revision petition had been disposed of by the Consolidation Commissioner and that the matter was pending in a writ petition before the High Court and further that about seven years had elapsed since initiation of the proceeding Under Section 144, Cr PC and five years since disposal of the revision petition by the Sessions Judge, thus ample time was available to the parties to approach the competent authority under the Act for delivery of possession of the disputed land according to the partition, I had upheld the order of the Sessions Judge dropping the proceeding as not maintainable.
In the case of Choudhury Prafulla Kumar Das and Anr. v. Lingaraj Rath and Anr., reported in 1991 (I) OLR 340 this Court relying on AIR 1985 SC 472. AIR 1988 SC 1973, 57(1984) CLT 145 and 68(1989) CLT 722 held that proceeding Under Section 145, Cr. P.C. is not maintainable during pendency of the suit in the Civil Court and proceeding, under consolidation in respect of the same property.
5. From the conspectus of views expressed in the aforementioned decisions, the position of law as appears to me is that no general rule or strait jacket formula can be laid down to determine the question whether a proceeding Under Section 145, Cr PC should be initiated during pendency of a proceeding under the Consolidation Act. The position depends on the facts and circumstances of each case. Without intending to be exhaustive, I may say that the criteria which are relevant for determination of the question are the case pleaded by the contesting parties in the 45 proceeding, the nature of controversy raised in the case, the stage at which the proceeding under the Consolidation Act stands, whether there has been determination of the question of possession of the disputed property in the consolidation proceeding and whether any order has been passed in such a proceeding, whether any interim order for protecting the corpus of the property in dispute and for safe-guarding the interest of the parties is available to be passed in the case and the last but not the least important is the existence of apprehension of breach of peace. As discussed earlier, the primary purpose for initiation of a proceeding Under Section 145, Cr P C is to prevent breach of peace between the rival parties and to determine which of the parties was in possession of the property in dispute on a particular date, i. e. the date of the preliminary order. Neither is such a proceeding intended nor the Magistrate is competent to decide the question of title to the property. The parties are to get the question of title settled before the competent Civil Court or revenue authority, as the case may be. However, mere filing of a civil suit or pendency of a proceeding before the revenue authority does not deprive the Magistrate of the jurisdiction to initiate proceeding Under Section 145, Cr PC if he is satisfied that there exists apprehension of breach of peace which necessitates taking action under the Criminal Procedure Code. Ordinarily, during pendency of a regular proceeding in Civil Court of competent Revenue Court in which the question of right, title, interest as well as possession of the property in dispute between the parties is under enquiry and there is ample scope for the parties to approach that Court/authority for interim order the Magistrate should not initiate a proceeding Under Section 145, Cr PC and should not embark on a parallel enquiry in the matter.
6. Judging the facts of the present case in the light of the principles noted above, it is clear that the learned Magistrate has not applied his mind to the different relevant aspects of the matter. He seems to have dropped the 145 proceeding merely on the finding that the village in which the lands in dispute are situated had come under the consolidation scheme. He made no attempt to find out the stage of such proceeding, the order, if any, passed therein and whether on the basis of the decision in the consolidation proceeding the case before him could be disposed of. Consideration of these matters was particularly necessary and relevant since the question of maintainability was not raised at the initial stage but was raised after recording of evidence had commenced, and the village in question had been included in the consolidation scheme by notification issued in 1938, i.e. about three years prior to initiation of the 145 proceeding. Though I granted time to the counsel for both the parties to ascertain the present position of the consolidation proceeding and other relevant informations relating to it, they could not furnish any information about the said proceeding. I am, therefore, of the view that the learned Magistrate should hold a proper enquiry and thereafter dispose of the proceeding in accordance with law.
7. In the result, the revision petition is allowed, the order of the learned Executive Magistrate, Jajpur dated 12-11-1991 in Criminal Misc. Case No. 48 of 199t is set aside and the case is remitted to him for fresh disposal in accordance with law after giving opportunity of hearing to the parties. The learned Magistrate will consider the question of maintainability of the proceeding keeping in view the principles enunciated in this judgment and since long time has elapsed from the date of passing of the preliminary order, he will also consider the question of existence of apprehension of breach of peace and necessity for further continuance of the proceeding.