KERALA NADUVATHUL MUJAHIDEEN (KNM) v. THE ASSISTANT COMMISSIONER OF POLICE (CANTONMENT), THIRUVANANTHAPURAM CITY & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 31ST DAY OF MARCH 2014/10TH CHAITHRA, 1936** ## **Crl.Rev.Pet.No. 2304 of 2013** **----------------------------------------** **MC NO. 42/2013 of SUB DIVISIONAL MAGISTRATE COURT, THIRUVANANTHAPURAM ---------------** ## **REVISION PETITIONER/3RD PARTY:** **--------------------------------------------------** **KERALA NADUVATHUL MUJAHIDEEN (KNM), REG.NO 2/1957, MUJAHID CENTRE, NEW BLOCK, 5TH FLOOR, C.D TOWER, BY PASS ROAD, ARYADATHUPALAM, KOZHIKODE 673 004, REPRESENTED BY ITS GENERAL SECRETARY A.P ABDUL KHADER MOULAVI.** **BY ADVS.SRI.GEORGE POONTHOTTAM SRI.T.R.RAVI** ## **RESPONDENTS/PETITIONER,APARTY & B PARTY:** **------------------------------------------------------------------------** **1. THE ASSISTANT COMMISSIONER OF POLICE (CANTONMENT), THIRUVANANTHAPURAM CITY- 695 001.** **2. PROFESSOR ABDUL RASHEED,** - **DISTRICT PRESIDENT, KERALA NADUVATHUL MUJAHIDEEN (KNM) (A PARTY).** **3. SHRI.SHOUKHAT SWALAHI, DISTRICT SECRETARY, KERALA NADVATHUL MUJAHIDEEN (KNM), THIRUVANANTHAPURAM DISTRIT-695 001(A PARTY).** **4. SHRI. PARUTHIKUZHY HAKKIM, GREENVIEW, 19/PJ 25552, MUDAVANMUGHAL, A.H.C 2952 JAGATHY, THIRUVANANTHAPURAM - 695 014 (B PARTY).** **5. SHRI.SANOFAR, BAHUJATH MANZIL, NEAR MASJID NAGAR, AZHIKODE P.O, THIRUVANANTHAPURAM - 695 564 (B PARTY).** **6. SHRI.MUHAMMED SHERIF, KUNNUMPURATHU VEEDU, CHITTAZHA, VATTAPPARA, THIRUVANANTHAPURAM - 695 028(B PARTY).** Msd. **..2/-** **..2..** ## **CRL.REV.PET.NO. 2304 OF 2013** ## **----------------------------------------** ## **7. SHRI. AL-AMEEN,** - **T.C 45/664, PUDUVAL HOUSE, MILK COLONY ROAD, BEEMAPALLY, THIRUVANANTHAPURAM - 695 008 (B PARTY).** ## **8. SHRI NOUSHAD.J, T.C 46/449(OLD), BEEMAPALLY, THIRUVANANTHAPURAM - 695 008 (B PARTY).** **9. SHRI. MAHIN ABOOBACKER, MINI INDUSTRIAL, SUMAYYA POLY FLEX, THOONGAMPARA, KATTAKKADA, THIRUVANANTHAPURAM - 695 572 (B PARTY).** **10. SHRI. NAJIBUL MUBEEN, VETTIVILAKAM HOUSE, ANIYOOR, BALARAMAPURAM, THIRUVANANTHAPURAM - 695 501 (B PARTY).** **11. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 & R11 BY SENIOR PUBLIC PROSECUTOR SRI.JOE KALLIATH R2 BY ADV. SRI.S.RAJEEV R3 BY ADV. SRI.SHAJIN S.HAMEED R4 TO R10 BY SRI.T.KRISHNAN UNNI (SENIOR ADVOCATE) ADV. SRI.K.C.KIRAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-02-2014, THE COURT ON 31-03-2014 PASSED THE FOLLOWING:** Msd. . ## **CRL.REV.PET.NO. 2304 OF 2013** **----------------------------------------** ## **APPENDIX** **---------------** **PETITIONER(S)' ANNEXURES: -------------------------------------------** **ANNEXURE 1: TRUE COPY OF THE ORDER IN I.A.NO. 4867/2013 IN O.S.NO. 983/2013 DATED 23.07.2013.** **RESPONDENT(S)' ANNEXURES:** **-----------------------------------------------** ## **NIL** **//TRUE COPY// P.S.TO JUDGE.** Msd. ## **K.HARILAL, J.** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Crl.R.P. No.2304 of 2013 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 31[st] day of March, 2014 ## **O R D E R** This Revision Petition is directed against the order passed by the Sub Divisional Magistrate, Thiruvananthapuram in M.C.No.42/2013, the proceedings initiated, invoking jurisdiction under Section 145 of the Code of Criminal Procedure. The revision petitioner is the C-party, one of the aggrieved parties against whom the impugned order has been passed. The proceedings were initiated on the report dated 31.3.2013 of the Asst. Commissioner of Police (Cantonment), Thiruvananthapuram City, stating that there exists a dispute between A-party and B-party, which are the two groups of the Kerala Naduvathul Mujahideen (KNM), the revision petitioner herein, concerning the management and possession of “Salafi _**Crl.R.P.2304/13**_ **:2:** Centre, Oottukuzhi, Thiruvananthapuram” and the dispute is likely to cause breach of peace and thereby create a law and order problem. When his attempt to make an amicable settlement got failed, the Sub Divisional Magistrate passed a composite order under Section 145 and 146 of the Cr.P.C., attaching and taking possession of the subject of dispute, and appointed a Receiver for the management of the same. 2. The revision petitioner/C-party was not a party in that proceedings. But, the said order was challenged before this Court in Crl.R.P.No.911/2013 by the revision petitioner/C-party and in Crl.R.P.No.883/2013 by the A- party. This Court, by a common order dated 31.7.2013, set aside the order passed by the Sub Divisional Magistrate, on a finding that the composite order passed under both Sections 145 and 146 of the Cr.P.C. is vitiated by procedural irregularity, and remitted the case to the Sub Divisional Magistrate to pass order afresh after conducting due enquiry as contemplated under Section 145(4) of the Cr.P.C. _**Crl.R.P.2304/13**_ **:3:** 3. After remand, all the parties adduced both oral and documentary evidence consist of Exts.A1 to A17 produced by the A-party, Exts.C1 to C34 produced by the C-party and Exts.B1 to B9 produced by the B-party and the oral evidence given by the witnesses. 4. After considering the evidence on record, the learned Sub Divisional Magistrate passed the impugned order, granting possession of the subject of dispute to A-party on a finding that A-party was in actual possession of the disputed property, when the earlier order under Section 145(1) of the Cr.P.C. was passed. The legality, propriety and correctness of the aforesaid order are under challenge in this Revision Petition. 5. The factual matrix necessary for considerations under the revisional jurisdiction of this Court can be recapitulated as follows: The revision petitioner/C-party is a Society registered under the Societies Registration Act with the objective of educational and cultural advancement of the Muslim Community. Under the State Committee of the _**Crl.R.P.2304/13**_ **:4:** organisation, there are Shaka, Mandalam and District Committees. A-party and others claim that they are the office bearers of the Thiruvananthapuram District Committee. While so, the C-party suspended A-party on 20.1.2013 and appointed B-party as Ad hoc Committee in its place. The contention of the A-party is that the unilateral action of suspension of the duly elected committee and the appointment of Ad hoc Committee are against the provisions of the by-law of the organisation. There is no provision in the by-law to appoint an Ad hoc Committee. The Salafi Centre, the subject of dispute, was in the possession of A-party till the Receiver was appointed by the Sub Divisional Magistrate. As B-party had adopted defiant attitude and threatened the functioning of the 'Friday Khutuba', A-party filed O.S.No.323/2013 before the Munsiff's Court, Thiruvananthapuram and the Court granted injunction on 25.3.2013 against two persons. The Receiver had accepted keys and other materials from A-party, which prove actual possession of A-party. In short, despite the suspension, on 20.1.2013 A-party was in _**Crl.R.P.2304/13**_ **:5:** possession of the 'Salafi Centre'. 6. B-party contended that the Ad hoc Committee was constituted in the place of A-party and they took possession of the subject of dispute, the 'Salafi centre', with immediate effect. A-party has not appealed against their suspension and constitution of the Ad hoc Committee. But, A-party, on 29.3.2013, unauthorisedly entered into the Salafi Centre and broke open the room, manhandled the present Office Secretary and forcefully took possession of the keys and other records from the Office Secretary, looted money and went away with those articles. Though the Office Secretary had complained of the unlawful criminal activities before the police, they have not taken any action. B-party filed a complaint before the Judicial First Class Magistrate's Court, Thiruvananthapuram, and, as per the order passed by the learned Magistrate, the police registered Crime No.432/2013 against A-party. A-party has misrepresented and suppressed the true facts in O.S.No.323/2013 of the Munsiff's Court, Thiruvananthapuram, and obtained an injunction order in _**Crl.R.P.2304/13**_ **:6:** suppression of the material facts. In short, A-party had parted with possession of the District Committee Office in obedience to the suspension order and later, on 29.3.2013, made an attempt to take possession, wrongfully and forcefully. They prayed for handing over the possession to C-party, the absolute owner in possession of the Salafi Centre. 7. C-party contended that indisputably they are the absolute owner in possession of the property. B-party was suspended on 20.1.2013 due to anti-social activities and indiscipline. The suspension order was duly communicated to A-party. Thereafter, B-party, an Ad hoc Committee was duly constituted in the place of A-party and B-party took charge of the District Committee. A-party was a unit of C-party. The ownership and possession are vested with C-party alone. The Kerala Salafi Centre, the subject of dispute, had never been under the control of the District Committee. A governing body has been appointed for the administration of 'Salafi Centre'. The State Committee has power to suspend District Committees. A-party has not _**Crl.R.P.2304/13**_ **:7:** appealed against the order of suspension. The breakage of law and order was caused by A-party and the police party registered a crime against A-party. A-party had criminally trespassed into the Salafi Centre and forcefully took possession of the keys and other records, after manhandling the Office Secretary. 8. Sri. George Poonthottam, the learned counsel for the revision petitioner advanced arguments assailing the findings in the impugned order. It is mainly contended that the Sub Divisional Magistrate had exceeded the jurisdiction by determining the legality and propriety of the suspension of the District Committee. The Sub Divisional Magistrate unnecessarily ventured to interpret the by-law of the C-party and made certain declaration as regards the legality of the suspension order. The Sub Divisional Magistrate jumped over the jurisdiction by granting a declaratory relief that the suspension of A-party is null and void. The statutory mandate under Section 145(4) is that the Magistrate shall, without reference to the merits of the claims of any of the parties to the right to possess the _**Crl.R.P.2304/13**_ **:8:** subject of dispute, determine the person in actual possession of the subject in dispute on the date of passing the order under Section 145(1), and give possession to that person. But, here, to establish the actual possession of the property, C-party has produced Exts.C1 to C34. But none of these documents were considered, and instead of it, arrived at a conclusion, by merely interpreting the by-law. In short, the argument is that the Sub Divisional Magistrate has failed to exercise the jurisdiction vested with him properly. The learned counsel drew my attention to various documents produced before the Sub Divisional Magistrate and argued vehemently to convince me that A-party had criminally trespassed into the property and took possession by force on 29.3.2013. According to the learned counsel, the impugned order is liable to be set aside and the possession be given to C-party invoking power under the proviso to Section 145(4) of the Cr.P.C. on a finding that they were dispossessed illegally two days next before the date of police report. 9. The learned counsel appearing for A-party _**Crl.R.P.2304/13**_ **:9:** advanced arguments to justify the order granting possession to them. The learned counsel submits that the State Committee has no power to suspend the District Committee and to constitute an Ad hoc Committee as per by-laws. Moreover, the suspension order was not communicated to them. So, the alleged suspension is not binding to them. Despite the suspension, they were in actual possession of the Salafi Centre, particularly, on the day when the Receiver took possession of the subject of dispute. Their actual possession is evidenced by handing over of the keys and other records to the Receiver pursuant to the attachment order passed under Section 146(1) of the Cr.P.C. The C-party had never been in possession of the Salafi Centre, though they are the title holders of the same. The breach of peace was caused by the unlawful activities of B-party and, in fact, there was no circumstance warranting interference of the Sub Divisional Magistrate under Section 145 of the Cr.P.C. The management and control of the Salafi Centre was vested with the District Committee. In short, neither B-party nor C-party had been _**Crl.R.P.2304/13**_ **:10:** in possession of the Salafi Centre. The learned counsel drew my attention to Exts.A1 to A14 to fortify his arguments. Though B-party was also entered appearance, they did not raise any contention disputing the right of C-party. 10. I have given my anxious consideration over the rival submissions at the Bar. In view of the rival submissions, the first question to be considered is whether there is any illegality or impropriety in any of the findings in the order under challenge. Put it differently, considering the limited scope and extent of jurisdiction vested with the Sub Divisional Magistrate under Section 145 of the Cr.P.C., the point to be considered is whether the Sub Divisional Magistrate has exercised jurisdiction not vested with him or has failed to exercise jurisdiction vested in him properly and legally? 11. First of all, I must remember the scope and extent of jurisdiction vested with the Sub Divisional Magistrate under Section 145 of the Cr.P.C. What is the germane for consideration under Section 145(4) of the Cr.P.C., is the _**Crl.R.P.2304/13**_ **:11:** factum of actual possession of the Salafi Centre as on the date on which the Sub Divisional Magistrate passed order under Section 145(1) of the Cr.P.C.; ie., whether any, and which, of the parties was in possession of the subject of dispute as on the date of order under Section 145(1) of the Cr.P.C. The condition pre-requisite for passing an order under Section 145(1) of the Cr.P.C. is that the Sub Divisional Magistrate must be satisfied from the report of the police officer or upon other information that a dispute is likely to cause breach of peace concerning any land or water or boundaries thereof within his local jurisdiction. 12. While deciding the above question, the Sub Divisional Magistrate shall not make reference to the merits or claims of any of the parties to a right to possess the subject of dispute. A person who has no right to be in possession of the subject of dispute or a person who does not have a title or ownership over the property can also be found to be in actual possession of the property. No doubt, the possession of such person shall be preserved and protected against the claim of a contesting party that he _**Crl.R.P.2304/13**_ **:12:** has better title, right, ownership or interest, so as to be in possession of the property. The Sub Divisional Magistrate shall preserve and protect the possession of such person, though he has no right or title, by passing an order under Section 145(4) of the Cr.P.C. and that order will remain in force until any of the claimants produces the order of a competent civil court which determined the right of the parties thereof with regard to the person entitled to possession. In short, the aim and object of the proceeding under Section 145 is to preserve the land as it was and allow the person who is in actual physical possession of the property to continue therein so as to prevent the breach of peace until evicted therefrom in due course of law by competent civil court. 13. The Magistrate has to decide at first who is in actual possession of the subject of dispute at the date of his preliminary order under Section 145(1) of the Cr.P.C. If, however, the party in de facto possession is found to have obtained possession by forcibly and wrongfully dispossessing the other party within two months next _**Crl.R.P.2304/13**_ **:13:** preceding the date on which the report of the police officer or other information was received by the Magistrate, the Magistrate can treat the dispossessed party as if he was in possession on such date, restore possession to him and prohibit the dispossessor from interfering with that possession until eviction of that person in due course of law. The proviso is founded on the principle that forcible and wrongful dispossession is not to be recognised under the criminal law. So that it is not possible to say that such an act of dispossession was completed before the date of order. 14. But, going by the impugned order, apparently, it is seen that the Sub Divisional Magistrate has not observed the statutory mandate under Section 145 of the Cr.P.C., that the Sub Divisional Magistrate shall not make any reference to the merits or claim of any of the parties to a right to possess the subject of dispute. Contrary to the said statutory mandate, the Sub Divisional Magistrate had ventured to interpret various provisions of Ext.A1 by-law and arrived at a finding that the suspension order is issued _**Crl.R.P.2304/13**_ **:14:** in repugnance of the provisions of by-law and hence void. The Sub Divisional Magistrate has no jurisdiction to embark an enquiry as to the legality of the suspension order and all those issues would fall under the jurisdiction of the competent civil court alone. The finding No.2, that the suspension of the duly elected committee is an act made without following the provisions of by-law and hence void and no actual possession can be vested with an Ad hoc Committee as the constitution of itself is without any backing of by-law and with material irregularity, is void and illegal. Hence I hold that the Sub Divisional Magistrate had exercised jurisdiction not vested with him under Section 145 of the Cr.P.C. 15. In the light of the legal position analysed above, let us consider the legality and propriety of the findings in the order under challenge. 16. The factual matrix of the case over which the parties have no dispute can be stated as follows: The subject of dispute having an extent of around 26 cents and known by name “Salafi Centre” absolutely belongs to the _**Crl.R.P.2304/13**_ **:15:** revision petitioner/C-party herein by virtue of Exts.C8 to C14 title deeds in their favour and they have been paying revenue tax for the same. The payment of basic tax is evidenced by Ext.C15. Being the title holder, the C-party has been in legal possession of the disputed property as is evidenced from Exts.C19 and A12 Possession Certificates. The building complex, known as “Salafi Centre”, was constructed by them under Ext.C16 building permit and rented out to various parties; Arabic College, a mosque, madrasa, library, guest room and hostel for students are also functioning in the Salafi Centre. The Thiruvananthapuram District Committee is also functioning in the room allotted to them on the ground floor. The C-party is a four-tier organisation registered under the Societies Registration Act. Under the State Committee, there are Sakha, Mandalam and District Committees. A-party claims that they represent Thiruvananthapuram District Committee. The functioning of C-party and A-party are regulated and controlled by Ext.A1 by-law registered under the Societies Registration Act, 1960. _**Crl.R.P.2304/13**_ **:16:** Shoukathali, the witness who was examined for A-party, himself admitted in his oral evidence that the State Committee and the District Committees are working in accordance with Ext.A1 by-law. The last election to District Committee was held in December 2011. There was no dispute between A-party and C-party till the alleged suspension on 20.1.2013. The above said Shoukathali himself admitted that as per the the election held in December 2011, Muhammed Haneef Pachira was the President and one Muhammed Vattappara was the Secretary of A-party. All rental agreements stand in the name of C-party and A-party as the District Committee has been collecting rent from tenants and has been remitting in the account of C-party. Out of the total rent, after deducting the amount which required for functioning of the District Committee, the balance amount is being remitted in the account of the State Committee. 17. The dispute centres around the actual possession of the Salafi Centre after the alleged suspension of the District Committee on 20.1.2013. According to the _**Crl.R.P.2304/13**_ **:17:** C-party, for the management and administration of the Salafi Centre, there is a governing body under the State Committee and the Salafi Centre is under the management and control of the said governing body. But, A-party disputed the same. It is the case of A-party that though the property belongs to C-party, the C-party has never been in possession of the Salafi Centre, Thiruvananthapuram, and the Thiruvananthapuram District Committee was in the actual possession of the Salafi Centre. The management and control of the Salafi Centre was vested with the Thiruvananthapuram District Committee. While so, though the Thiruvananthapuram District Committee was suspended and an Ad hoc committee was appointed on 20.1.2013, the same was not communicated to them and despite the suspension order the Thiruvananthapuram District Committee had been in possession of the Salafi Centre. According to them, when B-party threatened and made preparation to obstruct the administration and control of A-party over the Salafi Centre, they filed O.S.No.323/13 and obtained an _**Crl.R.P.2304/13**_ **:18:** injunction order against the two persons who allegedly caused the above apprehension. So the question is, who was in actual possession of the Salafi Centre on 2.4.2013, the day on which the Sub Divisional Magistrate passed order under Section 145(1) of the Cr.P.C.? The Sub Divisional Magistrate found that A-party was in actual physical possession on 2.4.2013. If that be so, the next question is, had they been in possession of the Salafi Centre, after dispossessing B-party? Put it differently, whether the possession of A-party found by the Sub Divisional Magistrate was a possession which they had obtained after dispossessing either B-party or C-party within two months next before 31.3.2013, the date of receipt of police report. On enquiry under Section 145(4) of the Cr.P.C., if the Sub Divisional Magistrate finds that one of the parties in dispute is in actual possession of the subject of dispute, it follows that the Sub Divisional Magistrate must embark further enquiry also as to whether that possession was obtained after wrongfully dispossessing the other party by force. But, in the instance _**Crl.R.P.2304/13**_ **:19:** case, the learned Sub Divisional Magistrate has arrived at a finding that the A-party was in actual possession of the Salafi Centre on 2.4.2013, merely on the reason that the Receiver had obtained the bunch of keys under Ext.P5 receipt and passbooks, cheque books under Ext.A6 acknowledgement receipt from A-party. Put it differently, the actual possession was found in favour of A-party merely on the basis of Ext.A5 receipt and Ext.A6 acknowledgement receipt. I am of the opinion that the Sub Divisional Magistrate should have conducted an enquiry as to whether those keys and records were obtained unlawfully by force after dispossessing the B-party, particularly, in view of Ext.B2 complaint filed by the Office Secretary of the Salafi Centre to the police. It is the specific case of the C-party and B-party that on 29.3.2013, taking advantage of the injunction order obtained in O.S.No.323/13 against two persons having no connection with either B-party or C-party, a large number of miscreants led by one Abdul Rasheed and 8 others trespassed into the premises of the Kerala Salafi Centre, took possession of keys and records, _**Crl.R.P.2304/13**_ **:20:** looted cash and broke open the lock, after manhandling the Office Secretary, the person under whose custody those articles were kept. Aggrieved by the unlawful activities, the Office Secretary, one Abdul Majeed, filed Ext.B2 complaint before the police. But the police had not taken any action. Aggrieved by the inaction on the part of the police, he filed a private complaint, which was referred to police under Section 156(3) of the Cr.P.C. Thereafter, the police registered a crime under Ext.B1 F.I.R. against A-party and ultimately that issue was culminated in police report referred above. Ext.B2 complaint filed by the Office Secretary before the Cantonment Police specifically describes that the bunch of keys were taken away by force from his right hand. Thereafter, he was wrongfully confined in the room of Imam. It is also stated that Shoukathali caught hold of him and Nizar Ahamed took away the bunch of keys by force. In Ext.B3 complaint filed by B-party before the Cantonment Police, they also specifically complained of the alleged unlawful trespass committed on 29.3.2013. But in the impugned order, no _**Crl.R.P.2304/13**_ **:21:** attempt had been made to peruse either Ext.B2 or Ext.B3 complaints and to embark an enquiry thereupon as to whether A-party had unlawfully or by force obtained the bunch of keys and other records. It is specifically mentioned in the complaint that the articles taken away by force were transported in an autorikshaw and a car bearing Regn.No.KL-01/AY-6065. The above incident was shot in video and video clips were also produced. But, without considering Exts.B1 to B9, the learned Sub Divisional Magistrate found that those documents do not show the actual possession in favour of B-party. The Sub Divisional Magistrate ought not have held so evasively without discussing the contents of the documents. So also, without considering the documents, it was also held that Exts.A1 to A17 produced by A-party provide preponderance of probability in favour of A-party. Needless to say, the aforesaid findings on the documents produced by B-party and C-party goes without any legal validity or force. Though several documents had been produced by the contesting parties, the learned Sub Divisional Magistrate _**Crl.R.P.2304/13**_ **:22:** placed reliance on Exts.B5 and B6 alone without considering the other documents, particularly Ext.B1 F.I.R. and Exts.B2 & B3 complaints, which throw light over the alleged dispossession of B-party. It is also seen that the Sub Divisional Magistrate placed reliance on the injunction order. But, it should have been remembered that neither C-party nor B party was a party in O.S.No.323/13 and no order had been passed against them. 18. Similarly, the plaint schedule property in that injunction suit was one room provided for District Committee office only and the injunction order restrained the defendants in that suit from trespassing into that room wherein the District Committee office is functioning. In short, on 25.3.2013, A-party had no claim over the entire subject of dispute or they don't have a case that they are in actual possession of entire subject matter, hostile to the legal possession of C-party. The learned Sub Divisional Magistrate had failed to consider all the matters, which were conducive of embarking an enquiry as to whether the possession was obtained by force, illegally, after _**Crl.R.P.2304/13**_ **:23:** dispossessing any of the parties. Hence I find that the Sub Divisional Magistrate had miserably failed to exercise the jurisdiction vested with him. 19. In **Smt. Sonawati and Others Vs. Sri Ram and Another (1968 (1) SCR 617)** , the Apex Court held that, “Failure to consider important evidence on record amounts to an error of law giving rise to the question of law”. In **Sheikh Rahmat Ilahi Vs. Mohammed Hayat Khan and Others (AIR 1943 PC 208),** following the decision in **M/s. Orient Distributors Vs. Bank of India Ltd. and Others (1979 (4) SCC 385),** the Apex Court held that failure to appreciate and determine question of fact to be tried is an error of law. Further, in **R.H. Bhutani Vs. Miss Mani J. Desai and Others (AIR 1968 SC 1444)** , the Apex Court held that where relevant evidence has not been considered but instead irrelevant materials have been taken into consideration, the resultant order cannot be said to be one passed in accordance with law. This Court is not expected to reappreciate entire evidence under revisional _**Crl.R.P.2304/13**_ **:24:** jurisdiction. Moreover, it is not proper to evaluate evidence on factual disputes, when those factual disputes are under the consideration of competent civil court. Consequently, I am inclined to set aside the impugned order under challenge. 20. What course of action has to be ordered after setting aside the impugned order? Normal procedure is to remit back the same to the very same forum which passed the impugned order, to pass order afresh after considering the entire evidence. But, in the instance case, I am not inclined to do so. Considering the facts and circumstances of the case, I am of the opinion that the adjudication of the entire disputes can be conferred to the competent civil court, particularly, when two civil suits, O.S.No.323/2013 filed by A-party before initiation of proceeding under Section 145 of the Cr.P.C. & O.S.No.938/2013 filed by the C-party after the initiation of the proceeding under Section 145 of the Cr.P.C., are pending before the Munsiff's Court, Thiruvananthapuram, the competent court having civil jurisdiction over the subject of dispute. Both suits pertain _**Crl.R.P.2304/13**_ **:25:** to the right of possession over the subject of dispute of this proceeding under Section 145 of the Cr.P.C. 21. The proceeding under Section 145 of the Cr.P.C. is a summary remedy provided to prevent breach of peace only. The scope and extent of enquiry under Section 145 of the Cr.P.C. is very limited and summary in nature. But, considering the contentions raised by both parties in the instance case, particularly when two civil suits are pending as regards the right of possession of subject of dispute, it would be just and proper to determine the rival claims at the Civil Court itself. This legal position is well settled by the Apex Court in various decisions and held that, where the Civil Court is in seizin of the dispute involving the issue of possession of the property in question, initiation or continuance of parallel criminal proceedings under Section 145 Cr.P.C. would not be justified. [Vide -- R.H. Bhutani v. Miss Mani J. Desai and others, 1968 KHC 333 : 1968 KLJ 932 : 1969 (1) SCR 80 : 1969 CriLJ 13 : AIR 1968 SC 1444 ; Chandu Naik v. Sitaram B. Naik, 1978 SCC (Cri) 100 : AIR 1978 SC 333 : 1978 CriLJ 356 : 1978 (2) SCR 353 : 1978(1) SCC 210; _**Crl.R.P.2304/13**_ **:26:** Ram Sumer Puri v. State of U.P., 1985 (1) SCC 427 : 1985 SCC (Cri) 98 : 1985 CriLJ 752 : AIR 1985 SC 472; Abdul Azeez v. Pappu, 1986 KHC 77 : 1986 KLJ 119 : 1986 KLT 288; Asraf v. Abdulla, 1987 KHC 232 : 1987 KLJ 549 : 1987 (1) KLT 795 and Ranbir Singh v. Dalbir Singh, 2002 KHC 1219 : AIR 2002 SC 1500 : 2002 SCC (Cri) 700 : 2002 (3) SCC 700]. 22. In **Ram Sumer Puri Mahant Vs. State of U.P. and others (AIR 1985 SC 472)** , the Apex Court again held as follows: “When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil _**Crl.R.P.2304/13**_ **:27:** court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. We accordingly allow the appeal and quash the order of the learned Magistrate by which the proceeding under Section 145 of the Code has been initiated and the property in dispute has been attached. We leave it open to either party to move the appellate Judge in the civil litigation for appropriate interim orders, if so advised, in the event of dispute relating to possession.” In the light of the aforesaid discussions, the impugned order under challenge is set aside and this Revision Petition will stand allowed with the following directions: - (1) The possession of the subject of dispute, the Salafi Centre, will stand restored to the Sub Divisional Magistrate, Thiruvananthapuram, and the order of attachment, which was stood in force before the passing of the impugned order, will also stand revived and restored and shall continue to _**Crl.R.P.2304/13**_ **:28:** be in force until any of the claimants produces the order of a competent civil court, which determined the rights of the parties with regard to party entitled to get possession of the subject of dispute. - (2) The subject of dispute, the Salafi Centre, shall remain under the management of the Receiver, who had been appointed earlier, as stood earlier, before the passing of the impugned order. - (3) A-party is directed to hand over the keys and all other articles with books and accounts, which they have obtained from the Receiver, to the Receiver forthwith, failing which the Sub Divisional Magistrate shall take over the subject of dispute forthwith. - (4) The Sub Divisional Magistrate shall pass necessary orders as and when required for the supervision and management of the Salafi Centre. But, such orders will be subject to the order, if any, to be passed by the civil court in which original suits are pending. - (5) The Munsiff's Court, Thiruvananthapuram, will dispose O.S.No.323/2013 and O.S.No.938/2013 _**Crl.R.P.2304/13**_ **:29:** within a period of six months from today, untrammelled by any of the findings or observations in this order, and the parties shall not be given adjournments unless the Court is fully satisfied of the sufficient cause. But, the parties are at liberty to seek necessary amendments in their suits so as to obtain necessary reliefs, in accordance with the facts and circumstances of the case. - (6) The Asst. Commissioner of Police (Cantonment), Thiruvananthapuram, is directed to provide all police aid and protection to implement this order as and when required by the Sub Divisional Magistrate and to see that no breach of peace would be occurred in connection with this subject of dispute. - (7) The Government Pleader is directed to convey this order to the Sub Divisional Magistrate, Thiruvananthapuram, forthwith. Sd/- - **(K.HARILAL, JUDGE)** **okb.** _**Crl.R.P.2304/13**_ **:30:** The **“O.S.No.938/2013”** occurring in line 11 of paragraph 20 at page 24 and in the last line at page 28 of the order dated 31/03/2014 in Crl.R.P.2304/2013 is corrected and substituted as **“O.S.No.983/2013”** , vide order dated 30/06/2015 in Crl.R.P.No.2304/2013. Sd/- **Registrar (Judicial)**