Fakir Chand and Ors. vs Sub Divisional Magistrate, Kaithal and Anr.

Pritpal Singh, J.

In this petition under Section 482 of the Code of Criminal Procedure (hereinafter called `the Code'') the proceedings under section 145 and 146 of the Code taken by the SubDivisional Magistrate, Kaithal, respondent No.1, are sought to be quashed.

The land in dispute situated in village Kheri Sankra in district Kurukshetra was owned by Smt. Kanti widow of Harphool. The petitioners as well as Smt. Siria, respondent No.2 are rival claimants of this land. Each of them has alleged that Smt. Kanti has transferred the ownership of this land with possession to them. The respondent No.2 filed a suit on March 10, 1986 (Annexure P.1) against the first two petitioners, namely, Faquir Chand and Narsi for being declared as owner in possession of the land and seeking permenant injunction restraining the defendants from interfering in her possession. In the wake of an application for temporary injunction filed alongwith the suit the learned trial Court initially on March 11, 1986 passed an ex parte order restraining the defendants from interfering with the possesion of the plaintiff but subsequently after hearing both the parties the order was modified on November 19, 1986 and maintenance of status quo was ordered. At the instance of respondent No.2 proceedings under Section 145 of the Code visavis the land in dispute were initiated by the SubDivisional Magistrate, respondent No.1 vide an order dated August 8, 1986 (Annexure P.4). Subsequently an order dated 9.2.1987 (Annexure P.5) was passed by the learned Magistrate under Section 146 of the Code attaching the land in dispute and appointing Naib Tehsildar, Pundari, as its Receiver. The petitioners have contended that a civil litigation being pending between the parties regarding the disputed land, the learned Magistrate was neither competent to initiate proceedings under Section 145 nor attach the land under Section 146 of the Code. The legality of both these orders (Annexures P.4 and P.5) has, therefore, been assailed in this petition.

In support of the proposition that because of the pendency of a civil suit between the parties regarding the disputed land the learned Executive Magistrate was not competent to initiate proceedings under Section 145 of the code, reliance was placed on Ram Sumer Puri Mahant v. State of U.P. and others, 1985(2) Recent Criminal Reports 43 (S.C.) AIR 1985 Supreme Court 472. This judgment in my view is of no assistance to the petitioners. The Supreme Court held therein :

"When a civil litigation is pending for the property wherein the question of possession is involved and had 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 ."

These observations of the Supreme Court cannot be construed to mean that in every case whereas civil suit is pending, regarding the same subject matter, criminal proceedings under Section 145 of the Code cannot be initiated. In that particular case the plaintiffs'' suit had been dismissed and the appeal against dismissal was pending. Question of possession was involved which had already been adjudicated upon by the trial Court. It is in these circumstances that the Supreme Court observed that the initiation of Criminal Proceedings under Section 145 should not be permitted. It was held by a Division Bench of this Court in Mohinder Singh v. Shri Dilbagh Rai, (1976) 78 P.L.R. 803, that the mere pendency of a civil suit regarding the same subject matter between the parties does not bar the Magistrate from exercising his jurisdiction under Section 145 of the Code. It was observed that maintenance of status quo during the pendency of the civil suit is a situation in which a civil Court does not prima facie feel satisfied about any party being in possession, the Executive Magistrate in such matters when both parties claim possession, can initiate proceedings under Section 145 of the Code. This judgment does not come in conflict with the law laid down in Ram Sumer Puri Mahant (supra). In my view, therefore, the learned Executive Magistrate was competent to pass the order dated October 7, 1986 (Annexure P.4) initiating proceedings under Section 145 of the Code.

The order dated February 9, 1987 (Annexure P.5) passed under Section 146 of the Code, however, stands on a different footing. The order of status quo has been passed by the civil Court in the suit pending between the parties. The object of this order is that whichever party was in possession of the the disputed land, should remain in possession during the pendency of the suit. The passing of the order under Section 146 of the Code must, therefore, be considered to interfere with the order of status quo passed by the Civil Court. The Executive Magistrate cannot be allowed to order for the taking away of the property from the hands of the party in possession and to hand it over to the Receiver appointed by him. This view has earlier been taken by this Court in Crl. Misc. No.1833M of 1985 (Jai Singh and others v. State of Haryana and another), (1985(2) Recent Criminal Reports 159) decided on July 16, 1985. In case the learned Magistrate is apprehensive of breach of peace then it is open to him to initiate proceedings under Section 107 of the Code. Admittedly, the provisions of this Section have already been employed in this case.

For these reasons this petition is partly accepted the proceedings under Section 145 of the Code are allowed to proceed as per order dated August 8, 1986 (Annexure P.4), but the order under Section 146 of the Code (Annexure P.5) is hereby quashed.