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M.C Pally v. B. Kambil And Others

Kerala High Court

Mar 6, 1968

Judgment

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Structured Summary of the Opinion

Factual and Procedural Background

This revision petition was filed by a petitioner who is one of the members of the "B Party" in proceedings instituted under Section 147 of the Code of Criminal Procedure. The dispute concerns a claim by the B Party to have separate services conducted in a church. The petitioner raised two legal questions in revision: (1) whether the dispute about a right to have separate services in a church falls within Section 147 CrPC so as to call for Magistrate action, and (2) whether the pendency of a civil suit on the same subject-matter bars Magistrate action under Section 147. The Magistrate had taken action under Section 147 and, as the opinion records, there was also a recent order of a Civil Court; the Magistrate's order was said to give effect to that Civil Court order. The revision petition challenges the Magistrate's order; the Court ultimately dismissed the criminal revision petition.

Legal Issues Presented

Whether a dispute relating to a right to have separate services conducted in a place of public worship (a church) falls within the scope of Section 147 of the Code of Criminal Procedure.
Whether the pendency of a civil suit on the identical subject-matter operates as a bar to the Criminal Court taking action under Section 147 (and, by parity, under Section 145) of the Code of Criminal Procedure.

Arguments of the Parties

Petitioner's Arguments

The petitioner contended that the alleged dispute likely to cause breach of the peace does not relate to a right of user of any land or water and therefore Section 147 is inapplicable to the case.
The petitioner relied on the decision in Malkappa v. Padmanna (AIR 1959 Mys 122) (Narayana Pai J.), which holds that the provisions of Section 145 should not be invoked when a civil litigation about the identical subject-matter is pending, and that where there is a choice because of pendency of civil litigation the Magistrate must choose Section 107 and not Section 145.
The petitioner also placed reliance on an older Division Bench decision of the Bombay High Court (In re Anya Shidya Patil, AIR 1927 Bom 654), which was cited for the proposition that if the matter under Section 147 has already been adjudicated by a Civil Court, the Magistrate has no jurisdiction to enquire into a claim entirely contrary to that decree.

Respondents' Arguments

The respondents relied on the Full Bench decision in Tikuda v. State, ILR (1961) 11 Raj 657 : AIR 1961 Raj 216 (FB), and a later decision following that Full Bench (Chairman, Municipal Board, Bhadra v. State, ILR (1961) 11 Raj 1180). The Full Bench held that a Magistrate should not lightly proceed where a civil or revenue court has the dispute pending, and should weigh whether there is a real apprehension of breach of the peace and whether proceedings under Section 107 could avert it; but this does not mean that the Magistrate's jurisdiction under Section 145 is ousted simply because a suit is pending.
The respondents cited Lal Chand v. Smt. Amarauti (1963 (1) Cri LJ 512 (All)), in which it was observed that when rights of parties have been determined by a competent Civil Court within a time not remote from the Magistrate's proceedings, it is the duty of the Magistrate to maintain those rights and that the Magistrate has a choice between Sections 145 and 107; choosing Section 145 in such circumstances is not necessarily interferable in revision.
Another authority discussed in the opinion (Bansmali Mohapetra v. Bajra Nahak, AIR 1964 Orissa 204) was noted for the view that a decree by a Civil Court regarding possession must be respected and that, in such situations, proceedings under Section 107 or, if necessary, Section 144, should be started rather than Section 145, so as not to encourage defiance of the decree.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kunhammad Makkaru v. Abdul Rahiman, 1961 Ker LT 329 : 1961 (2) Cri LJ 234	That disputes relating to the right to perform services in a place of public worship fall within Section 147 CrPC.	The Court accepted and followed the view expressed in this decision (Govinda Menon, J.) and held that the present dispute about separate services in a church comes within Section 147.
Malkappa v. Padmanna, AIR 1959 Mys 122	That Section 145 should not be invoked when identical subject-matter is the subject of pending civil litigation, and that the Magistrate should choose Section 107 over Section 145 in such situations.	The petitioner relied on this decision. The Court discussed it and expressed reservations about treating pendency of civil litigation as an absolute bar to Magistrate action under Sections 145/147.
In re Anya Shidya Patil, AIR 1927 Bom 654	That if the dispute under Section 147 has been adjudicated by a Civil Court, the Magistrate has no jurisdiction to inquire into a claim contrary to that Civil Court decree.	The decision was placed before the Court; the Court noted factual distinctions (long lapse of time after civil decree in that case) and did not accept an absolute rule that a Magistrate is without jurisdiction wherever a civil decree exists.
Imambu v. Hussenbi, AIR 1960 Mys 203	That a Criminal Court is not deprived of jurisdiction under Section 145 merely because the immovable property is the subject-matter of pending civil litigation; the Magistrate may treat Civil Court decisions as one piece of evidence and, depending on circumstances, should give weight to recent Civil Court findings.	The Court referred to this decision as representing a view, and recorded the three differing approaches in the case law, noting the preponderance of opinion supporting the view that magistrates should respect recent Civil Court decisions though not be absolutely bound by them.
Bansmali Mohapetra v. Bajra Nahak, AIR 1964 Orissa 204	That a Civil Court decree regarding possession must be respected and that proceedings under Sections 107 or 144 may be preferable to Section 145 to avoid encouraging defiance of Civil Court decrees.	The Court noted this authority as supporting the approach that Magistrates should, where appropriate, start proceedings under Sections 107 or 144 rather than under Section 145 when a Civil Court decree exists.
Tikuda v. State, ILR (1961) 11 Raj 657 : AIR 1961 Raj 216 (Full Bench)	That the Magistrate should not lightly proceed under Section 145 when the dispute is pending before a Revenue or Civil Court; the Magistrate must weigh whether real apprehension of breach exists and whether Section 107 could avert it, but jurisdiction under Section 145 is not ousted by pendency of civil suit.	The Court treated this Full Bench as authoritative for the proposition that pendency of civil litigation does not automatically oust Magistrate jurisdiction under Section 145/147, although the Magistrate must proceed cautiously.
Chairman, Municipal Board, Bhadra v. State, ILR (1961) 11 Raj 1180	Followed the Tikuda Full Bench approach regarding Magistrate discretion and the non-ouster of jurisdiction by pendency of civil litigation.	The Court recorded that this subsequent decision followed the Full Bench and was cited in support of the proposition that civil suit pendency does not by itself deprive the Magistrate of jurisdiction under Section 145.
Lal Chand v. Smt. Amarauti, 1963 (1) Cri LJ 512 (All)	That Magistrates should maintain rights determined by a competent Civil Court within a time not remote to the proceedings, and that Magistrates may have a choice between Sections 145 and 107; selecting Section 145 in such cases is not necessarily subject to revision which would neutralize the Civil Court's decree.	The Court cited this decision for the view that while Section 107 may often be more appropriate, the Magistrate still has a choice and is not deprived of jurisdiction under Section 145 where Civil Court rights have been recently determined.

Court's Reasoning and Analysis

The Court proceeded in two stages corresponding to the two questions raised.

1. Whether the dispute about separate services in a church falls within Section 147:

The Court rejected the petitioner's contention that Section 147 is inapplicable because the dispute does not relate to a right of user of land or water. It observed that disputes relating to the right to perform service in a place of public worship (for example a church) have been uniformly held by High Courts to fall within Section 147.
The Court expressly relied on and aligned with the decision in Kunhammad Makkaru… v. Abdul Rahiman…, holding that this question had been considered in detail and that it supports treating the present dispute as within Section 147.

2. Whether pendency of a civil suit bars Magistrate action under Section 147 (and Section 145 by parity):

The Court surveyed conflicting authorities. One line of decisions (e.g., Narayana Pai J. in Malkappa) held that pendency of civil litigation is a bar and that Section 107 should be chosen instead of Section 145. Other decisions (e.g., Imambu v. Hussenbi, Tikuda Full Bench, and subsequent authorities) held that pendency does not automatically oust the Magistrate's jurisdiction; rather the Magistrate must weigh the real apprehension of breach of peace and consider whether Section 107 would be more appropriate.
The Court found no justification for distinguishing Sections 145 and 147 on this point. Both sections aim to prevent breaches of the peace arising from disputes about possession or right of user of immovable property; therefore the question whether pendency of civil suit is a bar is the same for both sections.
The Court criticized the absolutist view that pendency of a civil suit is a complete bar to Magistrate action, observing that the Magistrate has no power to compel parties to proceed only in a Civil Court and that refusal to act under Sections 145/147 could lead to the very breach of peace the sections are meant to prevent.
The Court noted three strands of judicial opinion drawn from decisions: (a) Magistrate under Section 145 is not bound by a Civil Court decision and must assume jurisdiction; (b) Magistrate is not bound but because the enquiry is summary and subject to civil adjudication, he should respect recent Civil Court decisions; (c) Magistrate is bound by Civil Court decisions and must implement them. The Court identified the preponderant view as the second approach — Magistrate not bound but should give due weight to recent Civil Court findings.
The Court pointed to sub-section (10) of Section 145 (as stated in the opinion) which provides that nothing in that section shall be deemed to be in derogation of the power of the Magistrate to proceed under Section 107, thereby showing that powers under Sections 145 and 107 may overlap and that one does not entirely override the other.
The Court emphasized that where there is a recent Civil Court order (even interim), the Criminal Court must give effect to it and not pass an order in derogation of that order; but if there has been a considerable lapse of time or evidence before the Magistrate shows a change in circumstances since the Civil Court order, the Magistrate may act even against the Civil Court finding — though such action must be adopted cautiously.

Synthesizing these points, the Court concluded that the pendency of a civil suit does not, by itself, deprive a Magistrate of jurisdiction under Sections 145 or 147; the Magistrate may also proceed under Sections 107 or 144 where appropriate; but the Magistrate must be attentive to recent Civil Court orders and the limited, preventive function of the Criminal Court.

Holding and Implications

Holding: The Court dismissed the criminal revision petition and held that the Magistrate's order cannot be impugned merely on the ground that a civil suit is pending. The Magistrate had jurisdiction to act under Section 147 (and, by parity, Section 145), and in the present case the Magistrate had given effect to a recent Civil Court order; the Magistrate's order was just and proper.

Implications:

The pendency of civil litigation on the same subject-matter does not automatically oust the Magistrate's jurisdiction under Sections 145 or 147 CrPC. A Magistrate retains jurisdiction but should exercise it with care.
The Magistrate should weigh whether there is a real apprehension of breach of the peace and whether proceedings under Section 107 (or, if necessary, Section 144) could avert breach; these alternatives may often be more appropriate, but choosing Sections 145/147 in the circumstances is not per se without jurisdiction.
Where there is a recent Civil Court order (including an interim order), the Criminal Court must give effect to it and avoid making orders contrary to that Civil Court determination. Only where facts and circumstances have materially changed since the Civil Court order may the Magistrate act otherwise, and then only cautiously.
Direct effect on the parties in this case: the Magistrate's order was upheld and the criminal revision petition dismissed. The opinion does not purport to create a rigid new rule displacing existing authorities; rather it reconciles authorities by endorsing the Magistrate's continuing jurisdiction subject to respect for recent Civil Court decisions and cautious exercise of power.

Disposition: Petition dismissed.

Show all summary ...

1. Two questions of law are raised in this revision petition by the counsel of the petitioner who is one of the members of the B Party in a proceeding under Section 147 of the Code of Criminal Procedure. The first is whether the dispute in question relating to a right to have separate services conducted in a church by the B Party comes within the purview of Section 147, to call for action by the Magistrate. The counsel argues that the alleged dispute likely to cause a breach of the peace in the present case does not relate to a right of user of any land or water, so that Section 147 is inapplicable to the case. I do not think there is any force in this contention: and it has been uniformly held by almost all the High Courts in India that such a dispute relating to a right to perform service in a place of public worship like a church falls within Section 147 of the Code of Criminal Procedure. I do not propose to discuss this question at any length, because the decision of this Court in Kunhammad Makkaru… v. Abdul Rahiman…., 1961 Ker LT 329 : (1961 (2) Cri LJ 234), has considered the question in detail referring to the several decided cases; and I am in agreement with the view expressed by Govinda Menon, J. in the said case. The next and the more important question raised is whether the pendency of a civil suit is a bar for action under Sec. 147 by the Criminal Court. On this question, the counsel of the petitioner has relied on a decision of the Mysore High Court by Narayana Pai J. The decision is Malkappa v. Padmanna, AIR 1959 Mys 122. The learned Judge has said that the provisions of Section 145 should not be invoked when, a civil litigation about the identical subject-matter is pending; and that when there is a choice between Sections 145 and 107 of the Code before a Magistrate by reason of the pendency of the civil litigation, the Magistrate must choose Section 107 and not Section 145. In the course of the judgment Narayana Pai J. has observed that the very purpose of Section 145 is to prevent the breach of public peace at the instance of parties, who should, like law-abiding citizens, place their dispute before a Civil Court and not take the law into their own hands.

2. The counsel has also placed the old decision of a Division Bench of the Bombay High Court in In re Anya Shidya Patil, AIR 1927 Bom 654, where Fawcett, J. has stated that if the matter which is in dispute under Section 147 has actually been adjudicated upon by a Civil Court, then a Magistrate has no jurisdiction to enquire into a claim which is entirely contrary to that Court's decree. In this Bombay case, it may be pointed out, there was a decree of 1915; and the proceedings under Section 147 were started over 10 years thereafter, the subject-matter of the proceedings being the subject-matter of the decree itself. Fawcett J. appears to have made a distinction between Sections 145 and 147, of the Code and also appears to say that under Section 145 the Magistrate has to make an enquiry as to possession, which may be quite contrary to title supported by a decree of a Civil Court, whereas if the matter falls within Section 147 and has been adjudicated upon by a Civil Court, then the Magistrate has no jurisdiction to enquire into a claim, which is entirely contrary to that Court's decree.

3. In the Mysore High Court the same question came up before Hegde, J.; and the learned Judge has distinguished the decision of Narayana Pai, J., vide Imambu v. Hussenbi, AIR 1960 Mys 203. Hegde, J. has stated that a Criminal Court is not deprived of its jurisdiction to proceed under Section 145 in respect of immovable property merely because it is the subject-matter of a civil litigation pending in a Civil Court. The learned Judge has considered several decisions on the question by several High Courts and has pointed out that there are three different points of view emerging from the decisions: one, a Magistrate acting under Section 145 is not bound by the decision of a Civil Court and it is obligatory upon him to assume jurisdiction and consider the decision of the Civil Court only as one piece of evidence; two, though the Magistrate is not bound by the decision of a Civil Court, since the enquiry before him is a summary one and his decision is subject to the decision of a Civil Court, he should respect any recent decision of a competent Civil Court regarding the possession of the property in dispute; and three, the Magistrate is bound by the decision of a Civil Court and must use his power under Section 145 to implement that decision and not to act in derogation of it. Hegde, J. has also pointed out that the preponderance of judicial opinion is in support of the second view. The learned Judge has distinguished the decision of Narayana Pai, J. and has observed that Narayana Pai, J. could not have intended to lay down as a proposition of law that a Criminal Court should not proceed under Section 145 in respect of immovable property which is the subject-matter of a civil litigation pending in a Civil Court.

4. Yet another ruling brought to my notice is the decision of R.L Narasimham C.J in Bansmali Mohapetra v. Bajra Nahak, AIR 1964 Orissa 204. The learned Chief Justice has held in this case that in a proceeding under Section 145 the decree passed by a Civil Court regarding possession must be respected and the losing defendant should not be allowed to allege his possession in spite of the decree passed against him. Narasimham, C.J has said that in a case of this kind proceedings under Section 107 or, if necessary, even under S. 144, should be started; and that the starting of a proceeding under Section 145 would encourage defiance of the decree of a Civil Court, and paralyse the administration of justice.

5. On the other side, the counsel of the respondents has cited the decision of a Full Bench in Tikuda v. State, ILR (1961) 11 Raj 657 : (AIR 1961 Raj 216 (FB)), and another decision of the same High Court by Sarjoo Prosad C.J in Chairman, Municipal Board, Bhadra v. State, ILR (1961) 11 Raj 1180, following the Full Bench. The Full Bench has said that if a dispute about immovable property is pending before a Revenue or Civil Court and one of the parties moves a Magistrate to take proceedings under Section 145 of the Code of Criminal Procedure, the Magistrate should not lightly proceed in the matter; he should weigh and consider whether there is a real apprehension of the breach of the peace and whether the same could be averted by proceedings under Section 107 of the Code; but, however, this does not mean that the Magistrate has no jurisdiction to proceed under Section 145 and his jurisdiction under that section is ousted simply because a suit is pending in a Civil or a Revenue Court. As already stated, Sarjoo Prosad, C.J has followed this in the later decision.

6. Another decision cited by the counsel of the respondents may also be referred to: Lal Chand v. Smt. Amarauti, 1963 (1) Cri LJ 512 (All). This is a decision of J.D Sharma, J. of the Allahabad High Court; and the learned Judge has observed that it is the duty of the Magistrate to maintain the right of the parties, when such rights have been determined by a competent Civil Court within a time not remote from that of his taking proceedings under Section 145; that the Magistrate has no right in such a case to compel a party to go back to the Civil Court; that when a civil litigation is pending, the more appropriate course would be to take proceedings under Section 107, but where the rights of the parties have been determined by a Civil Court, the Magistrate had a choice between Sections 145 and 107; and that if he preferred Section 145, no interference in revision so as to neutralise the effect of the decree of the Civil Court will be justified.

7. There is no justification for thinking, as has been done in the Bombay Division Bench ruling, that there is a distinction between Sections 145 and 147 on this aspect. Section 145 applies to cases where the expected breach of the peace stems from a dispute regarding possession of immovable property, while Section 147 relates to an expected breach of the peace as a result of a dispute regarding the right of user of immovable property. In either case, the question whether the existence of a civil suit regarding the dispute is a bar to the proceeding under the Criminal Procedure Code is the same and no distinction need be drawn between the two.

8. The decision of Narayana Pai, J. (and similar decisions) that the existence of a civil litigation is a bar to action under Sec. 145 does not appear to be quite happy in its result. Though, in a case like this, the parties should place their dispute before a Civil Court and get proper adjudication of their rights to immovable property, the Criminal Court has no power to compel them to resort to the Civil Court. By the Magistrate refusing to take action under Sec. 145 a breach of the peace, which the section is intended to prevent, will result. It may be that the Magistrate may better take action under Section 107, or even under Sec. 144 as suggested by Narasimham, C.J I am also of the opinion, as suggested by Sharma, J. of the Allahabad High Court, that the Magistrate may take action either under Section 145 (Section 147) or under Section 107. It cannot be said that the Magistrate has no jurisdiction under Section 145, or under Section 147 in a case like this, and has jurisdiction only under Section 107, or under Section 144 as opined by Narasimham, C.J I repeat that it may even be better to proceed under either of the latter two sections. But, if the Magistrate chooses to act under Section 145 or under Section 147, it cannot be said that action is without jurisdiction and he should have acted only under either of the other two sections. In this connection, it may be instructive to note sub-section (10) of Section 145, which lays down that nothing in the section shall be deemed to be in derogation of the power of the Magistrate to proceed under Section 107. This shows that the powers under Section 145 do not override me powers under Section 107; it may even indicate that the powers under the two sections may overlap.

9. Wherefore, the order of the Magistrate cannot be impugned merely on the ground of absence of jurisdiction due to the pendency of the civil suit.

10. I may add that in a case where there has been a recent order of a Civil Court (even an interim order), the Criminal Court shall give effect to it and not pass an order in derogation of that order. If there had been considerable lapse of time after the order of the Civil Court and the circumstances and evidence placed before the Magistrate show that there might have been a change in the situation after the order of the Civil Court, the Magistrate may act even against the finding of the Civil Court; but this course should be adopted only cautiously.

11. I shall make the position clear even at the risk of repetition. When a civil litigation is pending, the Criminal Court will do better to take action either under Section 107 or under Section 144, though the pendency of the civil litigation does not by itself deprive the Criminal Court of its jurisdiction under Section 145 or under Section 147: the Civil Court has the power primarily to decide disputes regarding immovable property and the Criminal Court must give effect to the decision of the Civil Court; the Criminal Court must always treat the order of the Civil Court, if one is in existence though it be an interim order, as to have settled the dispute between the parties: but, if subsequent to that order (it is here that the question whether the order of the Civil Court is recent or old becomes relevant) there has been a change in the situation, the Criminal Court may take that also into consideration in shaping its order: and in taking the last-mentioned course, the Criminal Court must always act cautiously bearing in mind that its function is only to prevent a breach of the peace and it is the function of the Civil Court to settle disputes regarding possession or user of immovable property.

12. In this case there has been a recent order of a Civil Court; and what the Magistrate has done is only to give effect to that order. The order of the Magistrate is thus just and proper. The criminal revision petition is dismissed.

BDB/D.V.C

13. Petition dismissed.