K. N. Ojha, J. - (1.) -Heard Sri Pankaj Kumar Tyagi and Smt. Archana Tyagi, the learned counsel for the revisionists, the learned A.G.A. for the State and Sri Kameshwar Singh, the learned counsel for the O.P. No. 2.
(2.) INSTANT revision has been preferred against order dated 21.12.2000 passed by IIIrd Additional Sessions Judge, Muzaffarnagar, in Criminal Revision No. 334 of 2000, Krishna Pal v. Ippan and others, whereby the revision was allowed and the order of the Sub-Divisional Magistrate, Shamli, district Muzaffarnagar, dated 25.10.2000 passed in proceeding under Section 145, Cr. P.C. was set aside. According to prosecution Case No. 47 of 2000, Ippan and others v. Krishna Pal and others, under Section 145, Cr. P.C., village Sota, police station Babri, district Muzaffarnagar, proceeded in the Court of the Sub-Divisional Magistrate, Shamli. The Sub-Divisional Magistrate perused the report dated 25.9.2000 submitted by the Station Officer, police station Babri and the report of the Tehsildar, Shamli dated 23.10.2000 and arrived at the conclusion that there was possibility of breach of peace between the parties in respect of Gata No. 909 area 15-9-15 situate in village Sota, therefore, the Sub-Divisional Magistrate directed the parties to appear in his Court on 18.11.2000 to file written statement and evidence in support of their respective cases. Aggrieved therefrom Krishna Pal, who is the opposite party No. 2 in this revision preferred revision No. 334 of 2000 under Section 397, Cr. P.C. which was decided by the Additional Sessions Judge, Muzaffarnagar, on 21.12.2000. During the pendency of the revision, Ippan and others moved an application in the Court of the Additional Sessions Judge, Muzaffarnagar, that civil litigation in respect of cancellation of deed was pending in the Court of Civil Judge (Senior Division), Muzaffar-nagar, in respect of the same land, which was later on withdrawn. A prayer was also made by Ippan and others that their millet crop was standing on the land and the opposite party Krishna Pal be restrained from forcibly cutting away the crop. A report was called for from the Tehsildar, Shamli. He submitted his report on 23.10.2000 in which he submitted that the revisionist Sanjeev and others had purchased 1/4th share of the land. Opposite party Krishna Pal was the brother of the seller. A case was contested between the purchasers and the brother of Krishna Pal in the Court of Civil Judge (Senior Division), Kairana, which was decided in favour of purchaser Sanjeev Kumar. The Tehsildar reported that the opposite party Krishna Pal forcibly wanted to cut away the crop, therefore, there was apprehension of beach of peace. Considering the circumstances and the evidence of the parties, the Sub-Divisional Magistrate passed an order of attachment of the disputed property under Section 146, Cr. P.C.
(3.) IPPAN and others placed reliance on Laxmikant Dubey v. Jamuni and others, 1999 (39) ACC 649, in which it is held by this Court that where civil litigation is pending in respect of a property, the proceeding under Section 145, Cr. P.C. in respect of the same property is not maintainable in the Court of the Magistrate. Krishna Pal had filed a civil suit in Civil Court but he had withdrawn it as consolidation came in the village, therefore, the Sub-Divisional Magistrate again started proceeding under Section 145, Cr. P.C. The learned Additional Sessions Judge held that where a case is pending in the civil court or in the consolidation court because the matter of title is to be decided in a competent court of law, the proceeding under Section 145, Cr. P.C. was not maintainable. The learned Additional Sessions Judge also relied on Jayanti Prasad v. Kamal Narain, 1998 ACC 392, in which it was held that there was a dispute of the property amongst the co-tenure holders. The proceedings under Section 145, Cr. P.C. was not maintainable because a co-tenure holder is entitled for joint possession over each inch of the land. Consequently the revision was allowed and the learned Additional Sessions Judge set aside the proceeding under Sections 145 (1) and 146 (1), Cr. P.C. pending in the Court of the Sub-Divisional Magistrate. Aggrieved therefrom IPPAN and others have preferred this revision. The learned counsel for the revisionist has cited Sita Ram and others v. Guru Dutt and others, 1995 ACC 336, in which this Court has held that if civil suit is pending in respect of disputed property and order of maintaining status quo was passed and there is no clear cut finding of the civil court, proceeding under Section 145, Cr. P.C. is maintainable in the Court of the Magistrate.;