St. George Syrian Church, Mannathur v. Revenue Divisional Officer, Muvattupuzha & K.P. Paily

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** ## **FRIDAY, THE 14TH DAY OF DECEMBER 2012/23RD AGRAHAYANA 1934** ## **WP(C).No. 15129 of 2012 (M)** **----------------------------------------** ## **PETITIONER(S):** **---------------------** **ST. GEORGE SYRIAN CHURCH,MANNATHUR THIRUMARADI VILLAGE REPRESENTED BY ITS VICAR FR.ALIAS JOHN @ FR.ALIAS MANNATHIKULAM.** **BY ADVS.SRI.M.S.UNNIKRISHNAN SMT.JAYASREE MANOJ SRI.K.SUNIL SRI.P.Z.NIJAZ SRI.S.SREEKUMAR (SR.)** **RESPONDENT(S): -------------------------** **1. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA PIN-686661.** ## **2. K.P.PAILY, AGED 68 YEARS** **KUTTICHIRAYIL HOUSE, OLIYAPPURAM PORT THIRUMARADY VILLAGE, MOOVATTUPUZHA-686 661.** **R1 BY GOVT.PLEADER SRI.JOM JOSE PADINJAREKKARA. R2 BY ADV. SRI.SAJAN VARGHEESE K. R2 BY ADV. SRI.LIJU. M.P** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2012, ALONG WITH CRMC. 2713/2012, THE COURT ON 14/12/2012 DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.15129/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT P1: TRUE COPY OF THE PROCEEDINGS FORWARDED BY THE SUB INSPECTOR OF POLICE, KOOTHATTUKULAM TO R1.** **EXHIBIT P2: TRUE COPY OF THE MINUTES OF THE PROCEEDINGS DT.7-12-2011 OF R1.** **EXHIBIT P3: TRUE COPY OF THE PROCEEDINGS ISSUED BY R1 TO SUB INSPECTOR OF POLICE, KOOTHATTUKULAM.** **EXHIBIT P4: TRUE COPY OF THE PROCEEDINGS ISSUED BY R1 TO CIRCLE INSPECTOR OF POLICE, PIRAVOM.** **EXHIBIT P5: TRUE COPY OF THE ORDER DT.21-1-2012 OF SUB COURT, MUVATTUPUZHA.** **EXHIBIT P6: TRUE COPY OF THE FIR LODGED BY THE KOOTHATTUKULAM POLICE AS CR.201 OF 2012.** ## **RESPONDENTS' EXHIBITS** **NIL** **//TRUE COPY//** **P.S. TO JUDGE** **tss** **C.R.** **S.S.SATHEESACHANDRAN, J. ------------------------------W.P.(C).NO.15129 OF 2012 & Crl.M.C.NO.2713 OF 2012 ----------------------------------Dated this the 14[th] day of December, 2012** ## **J U D G M E N T** A Church represented by its Vicar, has filed the above writ petition for issue of a writ of mandamus or any other appropriate writ/order/direction to direct the respondent to finalise the proceedings initiated by him under Section 145 (1) of the Code of Criminal Procedure, for short, the 'Code' in a time bound manner. 2. Crl.M.C. is filed by the opposite party in the proceedings under Section 145 of the Code initiated by the Sub Divisional Magistrate, in which, quashing of such proceedings and orders passed by magistrate - Annexures I and J - are canvassed of in exercise of the inherent powers of this Court under Section 482 of the Code. **2** **W.P.(C).NO.15129/2012 & Crl.M.C.NO.2713/2012** 3. Disputes between two sects over the affairs and administration of a Church admittedly gave rise to registration of some police cases and report filed before the Sub Divisional Magistrate, Muvattupuzha that such disputes concerning the Church and its properties are likely to cause breach of peace. The Sub Divisional Magistrate convened a meeting of all the warring parties and also the police to resolve the disputes. No resolution could be brought out and being satisfied that disputes between the parties connected with the affairs of the Church are likely to cause breach of peace, proceedings under Section 145 of the Code were initiated, in which, orders were issued to lock the Church and Chapel. Annexures I and J produced in the Crl.M.C. are the two orders passed by the executive magistrate for locking the Church and Chapel. 4. Various disputes prevailing between the parties in the proceedings with respect to the Church and its properties are not germane for consideration in the writ petition and Crl.M.C. **W.P.(C).NO.15129/2012 & Crl.M.C.NO.2713/2012** **3** and in fact advertance thereto for disposal of these petitions is not called for. On the submissions made by the counsel on both sides and facts and circumstances presented as well, the only question to be decided is the propriety and legality of the proceedings initiated under Section 145 of the Code by the Sub Divisional Magistrate when suits are pending with respect to the Church and its properties before the competent civil court. Petitioner in the Crl.M.C. contends that when such suits are pending, the executive magistrate has no jurisdiction to commence any proceedings under Section 145 of the Code, and, at best, if there are justifying circumstances to do so, he can commence only proceedings under Sections 107 or 144 of the Code. Learned counsel, Sri.Sajan Varghese has relied on **Ram Sumer Puri Mahant v. State of U.P. and others (AIR 1985 SCC 472), Amresh Tiwari v. Lalta Prasad Dubey and Another ((2000) 4 SCC 440)** and **Mahant Ram Saran Dass v. Harish Mohan and Another ((2001) 10 SCC 758)** , to contend that the magistrate lack jurisdiction to commence any proceedings under Section 145 of the Code when in respect of **W.P.(C).NO.15129/2012 & Crl.M.C.NO.2713/2012** **4** the same property the suit was pending with interim orders passed thereof over such property. Learned senior counsel Sri.S.Sreekumar, who appeared for the petitioner in the writ petition, who is also the 6[th] respondent in the Crl.M.C., relying on **Yohannan & Another v. Abraham Kathanar & Others (1975 KLT 32)** contended that pendency of civil suits between the same parties over the identical subject matter will not by itself oust the jurisdiction of the executive magistrate to initiate proceedings under Section 145 (1) of the Code where there is an imminent threat to breach of peace arising from rival claims of possession over that subject matter. Learned Government Pleader Sri.Tom Jose Padinjarekkara relied on **R.H.Bhutani v. Mani J. Desai and Others (1968 KHC 333), Thekkethodika Mammadunni v. Adangalpuravan Alavikutty (1988 Crl.L.J 53)** and **Indrapuri Primary Co-operative Housing Society Ltd. and another v. Sri.Bhabani Gogoi (1991 Crl.L.J 1765)** to urge that this Court cannot be called upon to exercise its inherent jurisdiction to go into questions over the sufficiency of materials and other circumstances which satisfy the magistrate **W.P.(C).NO.15129/2012 & Crl.M.C.NO.2713/2012** **5** to commence proceedings under Section 145 of the Code over the subject matter. No interference with Annexures I and J orders passed by the Sub Divisional Magistrate in the facts and circumstances of the case is called for is the submission of the learned Govt. Pleader. 5. What is enjoined and conferred under Chapter X of the Code on Executive magistrate is a preventive jurisdiction for maintenance of public order and tranquility. Whereas Part A of that Chapter deals with the preventive measures to be taken over unlawful assembly, Part B deals with the steps to be taken for abatement of public nuisance which if not timely attended is likely to result in breach of peace. Civil disputes, the resolution of which have to be made through competent courts thereof may give rise to disturbance of public tranquility and thus public nuisance demanding prompt action from the executive magistrate to avoid breach of peace. Where a dispute concerning land or water is likely to cause breach of peace within his local jurisdiction on information received thereof and **W.P.(C).NO.15129/2012 & 6 Crl.M.C.NO.2713/2012** satisfied of the need to initiate appropriate action to prevent such breach of peace, the executive magistrate is fully empowered to initiate action under Section 145 of the Code following the procedure thereof. 6. Whether pendency of a civil suit over the subject matter involved would interdict the executive magistrate from taking preventive measures as enjoined under Section 145 of the Code is the question to be considered on the submissions made by the counsel on both sides. Jurisdiction of the civil courts and criminal courts are different and they operate in different fields. Where the civil court has already seized of the matter or any interim order passed by the civil court prevails, normally, no proceedings under Section 145 of the Code will survive. Similar is the case where a decision has been rendered by the civil court on the dispute involved over the land or water. However, in some cases even if any civil suit is pending, with no interim order affecting the right of the parties has been passed, or where application for injunction was rejected or such suit was at a very **W.P.(C).NO.15129/2012 & Crl.M.C.NO.2713/2012** **7** initial stage, if there is apprehension of imminent breach of peace, there is no bar in initiating proceedings under Section 145 of the Code. The facts involved in the cases covered by the three decisions relied by learned counsel for petitioner in Crl.M.C. clearly spell out that in such cases there was not only pendency of civil suits but orders passed over adjudication affecting the right of the parties. In that context it was held parallel proceedings under Section 145 of the Code cannot be permitted in such cases. Mere pendency of civil suit will not deprive the jurisdiction of the magistrate to take action under Section 145 of the Code. However, if a civil suit in respect of land and water between the same party is pending and any interlocutory order declaring the possession of one or other party is made by the court, the magistrate who takes action under Section 145 of the Code has to proceed with care and caution and he has to consider whether taking action under Sections 107 or 144 of the Code would suffice to abate the apprehended breach of peace. Principle as indicated above is adverted to in the decisions relied by the counsel for the **W.P.(C).NO.15129/2012 & 8 Crl.M.C.NO.2713/2012** petitioner and also learned Government Pleader, and as such, particular reference to each decision is not called for. Though some arguments were advanced by learned counsel for petitioner in the Crl.M.C. as to some orders passed by the civil court, what are those orders and how far such orders would affect the parallel proceedings under Section 145 of the Code have not been made out. In such circumstances, there is no question of quashing Annexures I and J orders passed by the Sub Divisional Magistrate, which, on the facts and circumstances presented in the case, have been passed by the Sub Divisional Magistrate on he being satisfied of the apprehended breach of peace arising from rival claims put up by the parties over the Church and Chapel. However, the pendency of the suit before the civil court and also whether any interim orders over the right of the parties with respect to the Church and Chapel are in force affecting the rights of the parties has also to be looked into by the magistrate in considering further steps in the proceedings. In the absence of any conflicting order by the civil court the magistrate has to give effect to Annexures I and J orders passed **W.P.(C).NO.15129/2012 & 9 Crl.M.C.NO.2713/2012** for locking the Church and Chapel. So long as the apprehended breach of peace prevails and there is no conflicting order from the civil court, pendency of the suit as such will not affect the validity and legality of Annexures I and J orders passed by the Sub Divisional magistrate. In fact, the interests of justice demand adjudication of the disputes by parties not under Section 145 of the Code but in the suit pending before the civil court as the decree thereof will prevail over the orders of the magistrate. It is open to the petitioner in Crl.M.C. to bring to the notice of the magistrate any interim order passed by the court in civil suit for modification of Annexures I and J orders, provided, he is entitled thereto by orders of the civil court. 7. So far as the writ petition is concerned, no direction can be issued to the magistrate for expeditious completion of the proceedings under Section 145 of the Code as such proceedings intended to avoid breach of peace, at best, can be only an interim arrangement subject to the decision of the civil court on adjudication of the disputes between the parties over the **W.P.(C).NO.15129/2012 & 10 Crl.M.C.NO.2713/2012** identical subject matter. As already indicated, so long as apprehended breach of peace continues, and in view of the pendency of the civil suit as well, where the parties can seek appropriate orders, no writ or direction can be issued to the magistrate for expeditious completion of the proceedings under Section 145 of the Code. Subject to the observations made above and directing the parties to seek appropriate reliefs from the competent civil court whether it be of interim or final with respect to the subject matter involved in the proceedings under Section 145 of the Code, the Church and Chapel, the writ petition and Crl.M.C., both of them, are dismissed. ## **S.S.SATHEESACHANDRAN JUDGE** prp