Case Note & Summary
The petitioners, Ramdas Ramchandra Patil and Sakharam Ramchandra Patil, filed a Criminal Writ Petition under Article 227 of the Constitution of India challenging an order passed by the Executive Magistrate (Tahsildar, Pachora) under Section 145 of the Code of Criminal Procedure, 1973 (Cr.P.C.). The respondent No.3, Rahul Pandurang Shimpi, had approached the Executive Magistrate alleging that the petitioners had taken unauthorized possession of his land. The petitioners claimed to be lawful owners of the land, having purchased it from respondent No.3 in 1995 via a registered sale deed, with their names recorded in revenue records. A civil suit regarding possession was already pending before a competent civil court. During the pendency of the civil suit, respondent No.3 invoked Section 145 Cr.P.C. before the Tahsildar, who issued an injunction order against the petitioners until the conclusion of the civil suit. The petitioners challenged this order, contending that the Executive Magistrate lacked jurisdiction to entertain the application when a civil suit regarding possession was already pending. The court agreed with the petitioners, holding that the Executive Magistrate cannot pass orders under Section 145 Cr.P.C. when the question of possession is already subject matter of a substantive civil suit. The court quashed the impugned order and allowed the petition, directing the parties to pursue their remedies before the civil court.
Headnote
A) Criminal Procedure Code - Section 145 Cr.P.C. - Jurisdiction of Executive Magistrate - Civil Suit Pending - The Executive Magistrate cannot entertain an application under Section 145 Cr.P.C. when the question of possession is already subject matter of a substantive civil suit pending before a competent civil court. The remedy lies before the civil court and not before the Executive Magistrate. (Paras 5-6) B) Criminal Procedure Code - Section 145 Cr.P.C. - Interim Injunction - Executive Magistrate's Power - The Executive Magistrate has no power to pass an order of injunction under Section 145 Cr.P.C. when a civil suit is pending. The order of injunction passed by the Tahsildar/Executive Magistrate is without jurisdiction and liable to be quashed. (Paras 4-6) C) Constitution of India - Article 227 - Supervisory Jurisdiction of High Court - The High Court under Article 227 can quash an order passed by the Executive Magistrate under Section 145 Cr.P.C. when the order is without jurisdiction, as the Executive Magistrate cannot proceed when a civil suit is pending. (Para 6)
Issue of Consideration
Whether the Executive Magistrate under Section 145 of the Code of Criminal Procedure, 1973 can pass an order of injunction when a civil suit regarding possession of the same property is pending before a competent civil court.
Final Decision
The impugned order passed by the Executive Magistrate under Section 145 Cr.P.C. is quashed and set aside. The petition is allowed. Rule is made absolute in those terms.
Law Points
- Section 145 Cr.P.C. proceedings cannot be initiated when civil suit regarding possession is pending
- Executive Magistrate lacks jurisdiction to pass interim orders in such cases
- Article 227 of Constitution of India empowers High Court to quash such orders
