1992 P Cr (PLP)

(g) Criminal Procedure Code (V of 1898)

S. 145

Object

Object of proceedings under S.145, Cr.P.C. is only to prevent the breach of peace -between the parties and not to facilitate one of them to settle their civil dispute. Suleman Kassim for Appellant. Muhammad Zubair Qureshy for A.-G. for the State. Partab Rai for Respondents Nos.2 to

4. Dates of hearing: 3rd and 4th March, 1992. This application filed under section 561-A, Cr.P.C. raises the vexed question of jurisdiction, viz. whether the jurisdiction of a Magistrate under section 145, Cr.P.C. is ousted where the Civil Court of competent jurisdiction becomes seized' of a matter having passed an order of interlocutory nature in the following words:-- "Plaintiff's Advocate has requested for interim order on application under Order 39, Rule 1 and 2, C.P.C. I, therefore, direct the defendants not to eject the plaintiff from the suit premises in their personal capacity except in due course of law till next date of hearing."

2. The facts of the case which have occasioned this application under section 561-A, Cr.P.C. lie within a narrow orbit and may be briefly indicated. The applicant claims to be an attorney of Naheed Colour and Chemical Corporation who are the tenants of premises bearing No.5, in a' building constructed on Plot No.MR-1/42, Marriot Road, Karachi. It is alleged that respondents Nos.2 to 4 have un-authorisedly occupied this premises resulting into imminent danger of breach of peace between the parties. The respondent No.2 resorted to civil litigation in which the interim order reproduced in para. 1 ante was passed. Since there was danger of breach of peace between the parties the proceedings under section 145, Cr.P.C. were also initiated against them by the Assistant Commissioner and S.D.M. Aramabagh (Case No.15 of 1990), but besides filing of written statements by the respective parties no progress appears to have been made in the case. However, on 13-11-1991 one Muhammad Saleem (not a party in the case) made an application before learned S.D.M., who called a report from concerned S.H.O. and passed the following order under subjection (4) of section 145, Cr.P.C.:-- "After going through all the papers on record and recent report of the S'-H.O. Mithadar that there is immediate apprehension of breach of peace over the said Room No.5 at Plot No.MR-1/42, Mariot Road, Karachi and also there is immediate danger, to the persons and also the property: After going through all the papers on record and recent report of S.H.O. Mithadar there is immediate apprehension of breach of peace over the said Room No.5 at Plot No.MR-1/42, Mariot Road, Karachi. I am satisfied that if immediate preventive measures are not taken, it may result in the loss of life or property. I, therefore, being satisfied, direct the S.H.O. Mithadar to immediately attach and seal the Room No.5 at Plot No.MR-1/42, Mariot Road, Karachi, under subsection (4) of section 145, Cr.P.C. pending judicial enquiry by this Court regarding possession. As the parties are already in litigation before the Honourable Civil Court who has been pleased to grant the status quo order, therefore, the parties are also directed to maintain the status quo till the disposal of the civil suit."

3. The respondents Nos.2 to 4 challenged this order in Criminal Revision Application No.57 of 1991, which was heard by learned Ist Additional Sessions Judge (South) Karachi, who allowed it directing the learned S.D.M. to deseal the disputed premises. This order, dated 11-1-1992 is the subject-matter of the present application filed under section 561-A, Cr.P.C.

4. I have heard Mr. Suleman Kassim, learned counsel for applicant, Mr. Partab Rai, learned counsel for respondents Nos.2 to 4, and Mr. Muhammad Zubair Qureshy, learned counsel for the State.

5. Before I proceed to deal with the contentions raised by learned counsel for the parties, it is necessary to dispose of a legal objection raised by Mr. Partab Rai, learned counsel for respondents Nos.2 to 4, about the competency of this application filed under section 561-A, Cr.P.C. who has contended that where a matter stood concluded by exercise of revisional jurisdiction at Sessions Curt level, it would be very difficult to make out a case for further interference by High Court under section 561-A, Cr.P.C. The case of Javaid Iqbal v. Muhammad Din and another reported in 1990 S C M R 1309, which was decided by a Bench of the Supreme Court, certainly appears to lend some colour to this contention. However, on examining the above authority, I am of the view that it does not go quite so far as learned counsel for respondents Nos.2 to 4 thinks it does. In fact this question was considered by the Supreme Court in the case of Muhammad Shafique and others v. Abdul Hayee and others reported in 1987 S C M R 1371, wherein it was held that the powers possessed by the Courts under section 435/439, Cr.P.C. do not impinge, curtail or limit in any manner whatsoever the powers under section 561-A, Cr.P.C. In view of these observations, there is no room left for the argument that the remedy under section 561-A, Cr.P.C. is not available where the matter is finally decided at the level of the Court of Session under section 439-A, Cr.P.C.

6. The fact that civil litigation is pending between the parties in respect of the disputed property is by itself no ground to oust the jurisdiction of a Magistrate to exercise powers under section 145, Cr.P.C., but where the possession of the disputed property is regulated by an order of competent Civil Court the Magistrate should decline to interfere. The cases Shah Muhammad v. Haq Nawaz and another reported in P L D 1970 SC 470, Shera and others v. Mst. Fatima and another reported in 1971 S C M R 4.19, Shah Muhammad v. The State and 5 others reported in 1983 S C M R 1173, and Mehr Muhammad Sarwar v. The State and others reported in P L D 1985 SC 240, are clear on this point.

7. Applying the above-settled rule to the facts of the present case, it appears to me that there was no order passed by the learned Civil Judge regulating the possession of the disputed premises. The term `due course of taw' means the regular normal 'process and effect of the law operating on a matter which has been laid before it for adjudication (see Law Terms and Phrases by Mokal). The mere use of words, `I, therefore, direct the defendants not to eject the plaintiff from the suit premises in their personal capacity except in due course of law...." will not make it an order of injunction, for all that such words do is to say expressly that is normally implied in every act. Even otherwise the proceedings under section 145, Cr.P.C. were according to law and the order, dated 21-11-1991 passed by learned S.D.M. was not destructive to the interim order passed by learned Civil Judge.

8. The perusal of the record, however, shows that there was no occasion for the learned S.D.M. to have exercised the powers under subsection (4) of section 145, Cr.P.C. after such a long time and that too on an application made by a stranger to the proceedings. Admittedly the civil suit between the parties in respect of the same subject-matter is pending decision. The proceedings under section 145, Cr.P.C. are also pending between the parties for the last two years and no progress has been made in this case. This extraordinary power of section 145, Cr.P.C. is to be exercised only in a case of emergency with a view to avoid an imminent breach of peace, and should not be exercised in routine. It may be added that the object of proceedings under section 145, Cr.P.C. is only to prevent the breach of peace between the parties and not to facilitate one of them to settle their civil dispute.

9. No case for interference is, therefore, made out and the application made under section 561-A, Cr.P.C. is accordingly dismissed. The learned S.D.M. is, however, directed to dispose of the proceedings under section 145, Cr.P.C. pending before him within three months from the receipt of this judgment. N.H.Q./M-1587/K ??????????? Petition dismissed.