Chattisgarh High Court
Sohrab Khan vs Abhay Barua on 3 April, 2025
1
2025:CGHC:15819
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 1186 of 2025
1 - Sohrab Khan S/o Shri Ismail Khan Aged About 26 Years R/o Gali No. 4,
Imlipara Bilaspur, P.S. Civil Lines, Tehsil And District- Bilaspur (C.G.)
2 - Shehnawaz Khan S/o Shri Ismail Khan Aged About 40 Years R/o Gali
No. 4, Imlipara Bilaspur, P.S. Civil Lines, Tehsil And District- Bilaspur (C.G.)
3 - Ismail Khan S/o Md. Wazir Khan Aged About 64 Years R/o Gali No. 4,
Imlipara Bilaspur, P.S. Civil Lines, Tehsil And District- Bilaspur (C.G.)
... Petitioners
versus
1 - Abhay Barua S/o Suresh Barua Aged About 30 Years R/o Rajkishore
Nagar Bilaspur, P.S. Sarkanda, Tehsil And District -Bilaspur, C.G.
2 - Ashish Pandey S/o Shailesh Pandey Aged About 27 Years R/o R-2,
Vinoba Nagar Bilaspur, P.S. Tarbahar, Tehsil And District -Bilaspur, C.G.
... Respondents
(Cause title taken from Case Information System)
For Petitioners : Mr. Ratnesh Kumar Agrawal, Advocate
Hon’ble Shri Justice Ravindra Kumar Agrawal
Order on Board
VEDPRAKASH
DEWANGAN
Digitally signed
by VEDPRAKASH
DEWANGAN
Date: 2025.04.11
19:54:24 +0530
2
03/04/2025
1. The present Criminal Miscellaneous Petition under Section 528 of
Bharatiya Nagarik Suraksha Sanhita, 2023, against the impugned
order dated 17.09.2024 passed by learned Second Additional
Sessions Judge, Bilaspur, in Criminal Revision No. 4 of 2022,
whereby the criminal revision filed by the petitioners has been
dismissed.
2. The brief facts of the case are that on 08.06.2021, there was a
quarrel took place between the parties with respect to the possession
of a shop situated in front of Hotel Havens Park, Telephone
Exchange Road, Bilaspur. It is alleged that the respondents had tried
to dispossess the petitioners illegally from the subject shop. The
matter was reported to the Police Station Tarbahar, Bilaspur, where
an offence of Crime No. 90 of 2021 for the offence under Sections
294, 323, 506, 427 and 307/34 of IPC was registered against the
present petitioners. Counter FIR of Crime No. 91 of 2021 for the
offence under Sections 294, 323, 506, 452, 427/34 of IPC was
registered against the respondent No.1 and his other companion.
Considering the nature of dispute between the parties, an Ishtgasha
No. 11/31/2021 was registered and filed before the City Magistrate,
Bilaspur on 24.07.2021, where the proceeding under Section 145 of
CRPC was started through Criminal Case No. 79 of 2021.
3. After issuing the notice, reply was called from the concerned parties
and after recording evidence of the parties, the order has been
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passed on 30.12.2021 and held that one Sandeep Jain is the
possession holder of the shop in question and he is entitled to remain
in possession until he being dispossessed in due course of law.
4. The said order dated 30.12.2021 was challenged by the petitioners
by filing Criminal Revision No. 4 of 2022 before the learned Second
Additional Sessions Judge, Bilaspur and after hearing the parties, the
learned Additional Sessions Judge has dismissed the criminal
revision filed by the petitioners vide order dated 17.09.2024, which is
under challenge in the present petition.
5. Learned counsel for the petitioners would submit that the learned City
Magistrate, Bilaspur as well as the learned Additional Sessions
Judge has failed to consider that the petitioners are in possession of
the subject shop two months prior from initiation of the proceeding
under Section 145 of the CRPC. He also submits that the petitioner
No.1 has filed a civil suit on 14.09.2021 for declaration of his title,
declaration of sale deeds dated 22.05.2021 and 14.07.2021 as null
and void and also for permanent injunction before the learned
Principal District Judge, Bilaspur, which is pending for its
consideration and therefore, the learned City Magistrate ought to
have dropped the proceeding of Section 145 of CRPC, yet they have
passed the order, which may affect the ultimate outcome of the civil
suit and therefore, the impugned order is liable to be set aside.
6. I have heard learned counsel for the petitioners and perused the
documents annexed with the petition.
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7. From perusal of the document (Annexure P-5), it reflects that the
petitioner No.1 has filed a civil suit for declaration of title, declaring
two sale deeds as null and void and also for permanent injunction
before the learned Principal District Judge, Bilaspur and the same
has been filed on 14.09.2021. The pendency of the said civil suit is
also reflects from the order sheet dated 25.11.2021 of the City
Magistrate, Bilaspur which has been annexed at Page No. 29 of the
petition, although there is no document annexed in the revision of
that civil suit and no case No. was also mentioned, but only the
information was given that civil suit is pending, but here the copy of
the plaint of the civil suit has been annexed as Annexure P-5 and the
pleading to that effect has also been made in Para 4 of the memo of
present petition. Since, there is no document of civil suit has been
filed before the learned City Magistrate, Bilaspur in the proceeding
under Section 145 of CRPC, they have passed the order on
30.12.2021 holding possession of one Sandeep Jain.
8. Be that as it may, from the document annexed with the present
petition and the pleadings, it reflects that a civil suit has been filed by
the petitioner No.1 on 14.09.2021 for declaration of title, declaring the
sale deeds dated 22.05.2021 and 14.07.2021 as null and void and
also for permanent injunction against the defendants, in which M/s.
Abhyansh Buildcon is made as defendant No.8 and the partner of
said M/s. Abhyansh Buildcon namely Ashish Pandey is the
respondent No.2 in the present petition. From perusal of the
pleadings of the civil suit, it also reflects that there is involvement of
the respondent No.1 also in the entire affairs.
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9. In the matter of Ram Sumer Puri Mahant Vs. State of UP & Others,
1985 (1) SCC 427, the Hon’ble Supreme Court has held that when a
civil litigation is pending for the property with respect to its
possession, simultaneous proceeding under Section 145 CrPC
cannot be permitted to run together. In paragraph 2 of the said
judgment it was observed as under:-
“2. ……When a civil litigation is pending for the
property wherein the question of possession is
involved and has been adjudicated, we see hardly
any justification for initiating a parallel criminal
proceeding under Section 145 of the Code. There is
no scope to doubt or dispute the position that the
decree of the Civil Court is binding on the criminal
court in a matter like the one before us. Counsel for
respondents 2-5 was not in a position to challenge
the proposition that parallel proceeding 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 dependency of the dispute. Multiplicity of
litigation is not in the interest of the parties nor
should public time be allowed to be wasted over
meaningless litigation. We are, therefore, satisfied
that parallel proceedings should not continue and
the order of the learned Magistrate should be
quashed. We accordingly allow the appeal and quash
6the order of the learned Magistrate by which the
proceeding under Section 145 of the Code has been
initiated and the property in dispute has been
attached……..”
10. Further, in the matter of M. Siddique Vs. Mahant Suresh Das, 2020
(1) SCC 1 in paragraph 295, 296, 299.1 and 299.2, the Hon’ble
Supreme Court has held as under:-
“295. Section 145 is recognised to be a branch of the
preventive jurisdiction of the Magistrate. Section 145(1) can
be invoked on the satisfaction of the Magistrate that “a
dispute likely to cause a breach of the peace exists…”. The
provision relates to disputes regarding possession of land
or water or its boundaries which may result in breach of the
peace. The function of the Magistrate is not to go into
questions of title, but to meet the urgency of the situation
by maintaining the party in possession. The Magistrate is
empowered to call upon the parties to put in written
statements in support of their claim to “actual possession”.
Such an order is to be served as a summons upon the
parties. The Magistrate is to peruse the statements, hear the
parties and weigh the evidence, in order to ascertain who
was in possession at the date of the order. The Magistrate
may make that determination “if possible” to do so.
Moreover, the determination is about the factum of
possession on the date of the order “without reference to
the merits of the claim of any of such parties to a right to
possess the subject of the dispute”. These words indicate
that the Magistrate does not decide or adjudicate upon the
contesting rights to possess or the merits of conflicting
claims. The Magistrate is concerned with determining only
who was in possession on the date of the order. If
possession has been wrongfully taken within two months
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of the order, the person so dispossessed is to be taken as
the person in possession. In cases of emergency, the
Magistrate can attach the subject of the dispute, pending
decision. The action ultimately contemplated under Section
145 is not punitive, but preventive, and for that purpose is
provisional only till a final or formal adjudication of rights is
done by a competent court in the due course of law. Thus,
nothing affecting the past, present and future rights of
parties is contemplated under the provision.
296. The object of the provision is merely to maintain law
and order and to prevent a breach of the peace by
maintaining one or other of the parties in possession,
which the Magistrate finds they had immediately before the
dispute, until the actual right of one of the parties has been
determined by a civil court. The object is to take the subject
of dispute out of the hands of the disputants, allowing the
custodian to protect the right, until one of the parties has
established her right (if any) to possession in a civil court.
This is evident from the provisions of sub-section (6) of
Section 146. The Magistrate declares the party which is
entitled to possession “until evicted therefrom in due
course of law”. While proceeding under the first proviso,
the Magistrate may restore possession to a party which has
been wrongfully and forcibly dispossessed. No party can be
allowed to use the provisions of Section 145 for ulterior
purposes or as a substitute for civil remedies. The
jurisdiction and power of the civil court cannot in any
manner be hampered. [Commentary on the Criminal
Procedure Code by Ratanlal and Dhirajlal, 20th Edn. (2016)
at p. 451.] ………………………….
299. Where a suit is instituted for possession or for
declaration of title before a competent civil court, the
proceedings under Section 145 should not continue. This
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Court has analysed the above proposition of law in the
following cases:
299.1. In Amresh Tiwari v. Lalta Prasad Dubey, (2000)
4 SCC 440, S.N. Variava, J. speaking for a three-Judge
Bench of this Court held thus : “12. … The law on this
subject-matter has been settled by the decision of
this Court in Ram Sumer PuriMahant v. State of U.P
(1985) 1 SCC 427.
In this case it has been held as follows :
‘2. … When a civil litigation is pending for the property
wherein the question of possession is involved and
has been adjudicated, we see hardly any justification
for initiating a parallel criminal proceeding under
Section 145 of the Code. There is no scope to doubt or
dispute the position that the decree of the civil court is
binding on the criminal court in a matter like the one
before us. … 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. Multiplicity of
litigation is not in the interest of the parties nor should
public time be allowed to be wasted over meaningless
litigation. We are, therefore, satisfied that parallel
proceedings should not continue….’ ”
299.2. The Court in Amresh Tiwari [Amresh Tiwari v.
Lalta Prasad Dubey, (2000) 4 SCC 440 : 2000 SCC (Cri)
806] rejected the submission that the principle in Ram
9Sumer PuriMahant v. State of U.P. [Ram Sumer
PuriMahant v. State of U.P., (1985) 1 SCC 427 : 1985
SCC (Cri) 98] will apply only after the civil court has
adjudicated on the issue :
“13. We are unable to accept the
submission that the principles laid down in
Ram Sumer case [Ram Sumer PuriMahant v.
State of U.P., (1985) 1 SCC 427 : 1985 SCC
(Cri) 98] would only apply if the civil court
has already adjudicated on the dispute
regarding the property and given a finding.
In our view Ram Sumer case is laying down
that multiplicity of litigation should be
avoided as it is not in the interest of the
parties and public time would be wasted
over meaningless litigation. On this
principle it has been held that when
possession is being examined by the civil
court and parties are in a position to
approach the civil court for adequate
protection of the property during the
pendency of the dispute, the parallel
proceedings i.e. Section 145 proceedings
should not continue.”
11. Once, the civil suit is seized of the matter, the proceeding under
Section 145/146 of the Cr.P.C. must come to an end, and the
respective claims of the parties about title or possession or even the
identification of the land of the parties are to be decided by the civil
court. In the matter of Mohd. Abid Vs. Ravi Naresh, 2022 SCC
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online SC 2416, the Hon’ble Supreme Court, in para 4 of its order
held that:-
“4. It is, however, an admitted fact that the petitioners
have already filed a suit for injunction in which ex-
parte ad- interim injunction has been granted by the
Civil Court, Faizabad, Uttar Pradesh on 05.12.2020.
Once the Civil Court is seized of the matter, it goes
without saying that the proceedings under Section
145/146 Cr.P.C. cannot proceed and must come to an
end. The inter- se rights of the parties regarding title
or possession are eventually to be determined by the
Civil Court.”
12. Thus, in the aforesaid view of the matter, since the civil court is in
seisin of the dispute between the parties, without expressing any
opinion on the merits of the rival claims of the party, the present
petition is disposed of. However, the trial court is directed to decide
the civil suit filed by the present petitioner on its own merits in
accordance with law without being influenced by any of the
observations made either in the order passed by the City Magistrate,
Bilaspur or the order passed by the revisional court. It is also made
clear that any observations made by this court shall not come in the
way of trial court while deciding the pending civil suit.
13. The petition accordingly stands disposed of with the aforesaid
observations.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved
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