Murari Mirchandani vs. State & Ors. - (High Court of Delhi) (02 Jun 2022)

Question of title must be decided by civil court only

MANU/DE/2029/2022

Criminal

Present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) for quashing the Notice dated 8th September, 2021, issued by the SDM and for setting aside of the proceedings emanating from the said Notice.

There can be no question that, the proceedings under Section 145 of CrPC would be subordinate to civil proceedings. When a report is received by the Magistrate that there is an apprehension of breach of peace and property is involved, the Magistrate only makes an inquiry for the limited purpose of the determination of possession of the property in dispute, in no way entering into the question of determination of the title of the property.

If there is any question of title, then it is only a civil court that can decide it. The SDM must abide by the determination of the inter se rights of parties, whether interim or final, by the civil court. In case where despite the civil case pending and orders being passed by the civil court therein, there was a threat to breach of peace, then proceeding would be initiated under Section 107 and not under Section 145 of CrPC.

The Notice dated 8th September, 2021 is thus ex facie perverse for two reasons. Firstly, the SDM had on 19th August, 2016 closed the proceedings under Section 145 CrPC, as there was no emergent ground for disruption of public peace, and the question regarding the title and the right of possession to the suit property was under consideration of the competent courts i.e., the High Court and the District Court. The Revision Petition preferred by the Respondent No.2 was also dismissed.

The action taken by the SDM being completely in violation of the law and being a perverse exercise of powers, this Court, in order to prevent the abuse of the process of court, considers it appropriate to quash the impugned Notice dated 8th September, 2021. The Notice is accordingly quashed. It will be open to the parties to seek appropriate reliefs from the civil courts in seisin of the civil suits and produce such orders before the SDM, if the civil court finds one of them entitled to seek the de- sealing/possession. Petition disposed off.

Tags : NOTICE PROCEEDINGS LEGALITY