Case Note & Summary
The petitioner, Shaikh Wajid S/o Abdul Gani, filed a Criminal Writ Petition before the Bombay High Court, Bench at Aurangabad, seeking to quash proceedings initiated under Section 145 of the Code of Criminal Procedure, 1973 (CrPC) by the Taluka Executive Magistrate, Ahmedpur, based on a police report dated 31.10.2013. The dispute pertained to plot no.1 out of survey no.86/2 situated at Ahmedpur, which was purchased jointly by the petitioner and the complainant, Shivkant Lasune, on 29.04.2010. Subsequently, on 24.05.2010, one Gundappa Vishwanath Nijwante filed Regular Civil Suit No. 03/2010 challenging the sale deed and seeking declaration of ownership and injunction, which was pending before the Civil Judge, Senior Division, Ahmedpur. During the pendency of the civil suit, the complainant sold his interest in the property to the petitioner through an agreement of sale on 20.01.2012 for Rs. 21,000/-. The petitioner constructed 15 tin sheds on the plot and obtained a No Objection Certificate from the Municipal Council, Ahmedpur on 23.08.2012, and an electric connection from M.S.E.B. On 28.07.2013, the complainant filed a complaint against the petitioner and his family members, leading to action under Section 107 CrPC. On 31.10.2013, the Police Officer, Police Station, Ahmedpur submitted a report to the Taluka Executive Magistrate recommending action under Section 145 CrPC. The petitioner contended that the initiation of proceedings under Section 145 CrPC was unwarranted as a civil suit regarding the same property was already pending, and the police report did not indicate any imminent breach of peace. The court, after hearing the parties, held that when a civil suit is pending, the Executive Magistrate should not initiate proceedings under Section 145 CrPC, as the dispute is essentially civil in nature. The court further held that the police report must show an imminent breach of peace, and the Magistrate must apply his mind before initiating proceedings. The court quashed the proceedings under Section 145 CrPC as an abuse of the process of law.
Headnote
A) Criminal Procedure Code - Section 145 - Initiation of Proceedings - Pending Civil Suit - The court considered whether proceedings under Section 145 CrPC can be initiated when a civil suit regarding title and possession of the same property is pending. The court held that when a civil suit is pending, the Executive Magistrate should not initiate proceedings under Section 145 CrPC as the dispute is essentially civil in nature and the civil court is competent to decide the rights of the parties. (Paras 2-3) B) Criminal Procedure Code - Section 145 - Police Report - Requirement of Imminent Breach of Peace - The court examined the requirement that a police report under Section 145 CrPC must indicate an imminent breach of peace. The court held that the police report must show that there is a likelihood of breach of peace, and the Executive Magistrate must apply his mind to the report before initiating proceedings. In the present case, the police report did not indicate any imminent breach of peace, and the Magistrate mechanically initiated proceedings. (Paras 2-3) C) Criminal Procedure Code - Section 145 - Quashing of Proceedings - Abuse of Process - The court held that initiation of proceedings under Section 145 CrPC when a civil suit is pending amounts to an abuse of the process of law. The court quashed the proceedings to prevent multiplicity of litigation and harassment of the petitioner. (Para 3)
Issue of Consideration
Whether initiation of proceedings under Section 145 of the Code of Criminal Procedure, 1973 against the petitioner based on police report is sustainable when a civil suit regarding the same property is pending.
Final Decision
The court allowed the petition and quashed the proceedings under Section 145 of the Code of Criminal Procedure, 1973 initiated against the petitioner based on the police report dated 31.10.2013.
Law Points
- Section 145 CrPC proceedings cannot be initiated when civil suit regarding title and possession is pending
- Police report under Section 145 CrPC must show imminent breach of peace
- Executive Magistrate must apply mind before initiating proceedings
