Full Judgment
Chettur Sankaran Nair, J.
1. This is a petition to revise the order of Sub Divisional Magistrate, Perinthaknanna in M. C. 11787. Apprehending breach of peace, Sub Divisional Magistrate initiated proceedings under Section 145 of the Code of Criminal Procedure, in respect of property in R.S. No. 23/1 of Olavathoor amsom. Petitioner is a member of B party - respondents are members of A party, There were differences between A and B parties - Mujahid and Sunni groups, Magistrate observed:
After being satisfied on the police report that there exists a serious dispute over the issue of possession and right of worship, action under Section 145, Cr. P.C. was initiated.
(Emphasis supplied)
After inquiry, Magistrate directed restoration of possession to A party, relying on a finding of civil court.
2. According to petitioner, dispute falls under Section 147 and not under Section 145. He would further contend that Magistrate erred in thinking that decision of civil court was conclusive. Counsel for respondents would submit that the course adopted by the Magistrate is the proper course, and that the Magistrate should not conduct an inquiry when the matter was concluded by decision of the civil court.
3. Contention that the dispute is one under Section 147 and not under Section 145, cannot be accepted. Though the matrix of dispute is controversy regarding mode of worship, it ripened into a dispute regarding possession. Magistrate found that there is dispute over the issue of possession, and noticed that because of the dispute, Mujahid group closed the mosque. Magistrate was justified in initiating proceedings under Section 145 of the Code. Next question for consideration is whether the order of Magistrate based on an order of civil court is justified. Referring to Abdul Azeez v. Pappu 1986 Ker LT 288, relied on by the Magistrate, counsel for petitioner contends that Magistrate need only 'respect' the order of civil court. According to counsel if order of civil court is considered and appreciated, that will be 'respecting' the order of civil court. Magistrate had a duty to apply his mind to the facts of the case before him and come to a finding, says counsel. A learned single Judge of this Court observed that conclusions arrived at by the civil court will have to be 'honoured and respected' by the criminal court. This should be more than an attitude. When this Court said that the order of civil court will have to be respected, it meant that finding of civil court was binding.
4. In I. A. 731/83 in O.S. 102/83 (which is the order of civil court referred to), Munsiff considered whether petitioner-plaintiff therein was the Muthavally. Suit was for permanent injunction. Munsiff found,
From Exts. A3 to A6, it cannot be inferred that petitioner was or is Muthavally of the mosque.
C.M.A. 32/83 was filed against the order of Munsiff and the District Judge held:
Not even a scrap of paper has been produced by appellant to prove that he was managing the, mosque in his capacity as Muthavally.
Controversy in the suit was whether plaintiff was the Muthavally or not. He is not party to these proceedings. Finding of the civil court is only to the effect that plaintiff therein was not in possession. This is a negative finding, and there is no finding that either A or B party was in possession. It is only when there is a finding, that criminal court is bound to follow it. The position has been stated by the Supreme Court in Ram Sumer Puri v. State of U.P. : AIR 1985 SC472 :
When a civil litigation is pending wherein the question of possession is involved and has been adjudicated, we see no justification in initiating parallel criminal proceedings under Section 145 of the Code.
(Emphasis supplied)
Criminal Court should not invoke its jurisdiction, when the question of possession is being examined by a civil court and parties are in a position to approach the civil court for interim orders. Findings of civil courts are binding on criminal courts because, it is the function of civil courts to adjudicate such disputes. Even if it is not a decision inter partes, if the civil court has decided in favour of one party, that will bind the criminal court and it will be for the aggrieved party, if so advised, to seek appropriate reliefs from civil court. Orders under Section 145, Cr. P.C. are merely police orders made to prevent breach of peace. When a civil court passes an order, it displaces orders of criminal court (See Bhinka v. Charan Singh : 1959 CriLJ1223 ). The position therefore is, the Sub Divisional Magistrate who is charged with the responsibility of maintaining peace and preventing breach of peace, will have jurisdiction to act under Section 145, until a civil court adjudicates. He will have to exercise such jurisdiction.
5. In the instant case, civil court has not adjudicated the question of possession between the parties, or in favour of one of the parties. Parties are not in a position to seek interim orders from civil court, as no proceeding is pending. Therefore, Magistrate has jurisdiction and, he must arrive at a finding in accordance with Section 145 of the Code.
6. Sub Divisional Magistrate is not justified in relying on an order of civil court, which did not decide rights of parties before him or one of the parties. Scope of Section 145 and the procedure to be followed have been considered by the Supreme Court in Mathura Lal v. Bhanwar Lal : 1980 CriLJ1 .
7. The position is as follows:
(1) If the civil court has adjudicated the question of possession or if parties are in a position to seek interim orders from, civil court, then Magistrate will have no jurisdiction.
(2) In other cases, Magistrate will have jurisdiction till civil court decides the issue. The order under Section 145, Cr. P.C. is in the nature of a police order made to prevent breach of peace and the jurisdiction will have to be exercised in that behalf.
(3) Orders of civil court whether final or interim touching upon the same subject matter, will bind the Magistrate acting under Section 145, Cr. P.C.
(4) Magistrate assumes jurisdiction by making a preliminary order.
(5) Thereafter, he is bound to receive written statements, receive evidence and take further evidence if necessary and decide if possible which of the parties was in possession on the date of preliminary order.
(6) If in the manner stated before, he is able to find that one of the parties was in possession, he must make a final order under Section 145(6).
(7) If he is of the view that none of the parties was in possession or if he is unable to decide who was in possession, it is open to him to attach the property till determination of rights by a competent civil court.
(8) Magistrate cannot stop proceedings after a preliminary order leaving the parties to go to civil court unless the Magistrate cancels his order under Section 145(5).
8. In the light of the principles aforementioned, and in the absence of a finding by a civil court amending the issue before the Magistrate, and in a situation where parties are nable to seek interim orders in a pending proceeding from a civil court, Magistrate has to receive written statements, receive evidence and take further evidence if he deems fit and then take a decision. If he is unable to decide, he can attach the property and leave the parties to seek adjudication from a civil court.
The order of the Magistrate below is quashed and the case is remitted to the court below. Magistrate will proceed afresh, as indicated above.