Gopal Krishan vs Snatan Dharam Sabha

S.N. Phukan, C.J.—This Cr.M.P.(M) u/s 482 of the Code of Criminal Procedure is directed against the order of the learned Sessions Judge, Kangra at Dharamshala in Criminal Revision No. 8/92 decided on 18.7.1992. By the impugned order, the learned Court below dismissed the revision petition filed by the present Petitioner. The said revision petition was filed against the order passed by the learned Sub Divisional Magistrate, Palampur in case No. 82/IV/92. The learned Sub Divisional Magistrate by invoking the provisions of Sections 145 and 146 of the Code of Criminal Procedure and after spot verification issued the ''warrant u/s 146 Code of Criminal Procedure '' and appointed the Tehsildar as Receiver of the disputed property, which is a temple known as Shri Radha Krishan Temple situated at Palampur.

In the counter-affidavit filed, it is stated that the present petition is not maintainable as the earlier revision petition filed by the present Petitioner was dismissed. It was also stated, inter alia, that the order passed by the learned Sub Divisional Magistrate 1st in conformity with law. It is not disputed that a Civil Suit in respect of the same property has been filed before the learned Sub Judge 1st Class (I) Palampur being Civil Suit No. 204/91 by some persons and that ad interim injunction under Order 39 Rule 1 of the CPC has been issued. Notice to the present Petitioner regarding injunction is available at Annexure P-1. By the said ex-parte temporary injunction, the present Petitioner was restrained from realising the rent, making any additions or alterations in the temple and other building, renting out any premises or collecting the contribution to temple in any manner whatsoever. The said Civil Suit is still pending.

At the time of hearing, it was also stated at the Bar that another Civil Suit u/s 92 of the CPC is also pending before this Court registered as Civil Suit No. 167 of 1992. In the said Civil Suit on an application filed and registered as OMP No. 609 of 1992, the Court by order dated 10.12.1992 issued notice and in the interim, directed that the Management of the temple in dispute be continued as per orders dated 12.3.1990 passed by the learned Sub Divisional Magistrate, Palampur in the proceedings u/s 145 of Code of Criminal Procedure.

Heard the learned Counsel for the parties.

As two Civil Suits are pending regarding the same matter and it was also mentioned in the petition filed before the learned Sub Divisional Magistrate, the learned Sub Divisional Magistrate erred in law in initiating the proceedings under Sections 145/146 of the Code of Criminal Procedure.

In Ram Sumer Puri Mahant Vs. State of U.P. and Others, the apex Court held that when a civil litigation is pending for the property wherein the question of possession is Involved drawing up of proceedings u/s 145 of the Code of Criminal Procedure are not justified. It will only add the multiplicity of litigation, which is not in the interest of parties nor should public time be allowed to be wasted over meaningless litigation.

The various orders passed by the learned Sub Divisional Magistrate annexed to the petition are at Annexure P-2. I quote below the order passed on 7.3.1992, 11.3.1992 and 12.3.1992:

7.3.1992: presented by applicant alongwith counsel. Notice be issued to Respondent u/s 145 Code of Criminal Procedure for 11.3.1992. Copy of application be sent alongwith notice and one notice be pasted on the wall of the temple.

Sd/- Sub Divisional Magistrate, Palampur H.P.

11.3.1992: Called. Counsel for applicant and Respondent with counsel present. P.O. is out of station, therefore, file be put up on 12.3.1992.

12.3.1992: Called. Both parties with counsel were present. Counsel for Respondent wants time to file reply to notice. Time granted till tomorrow. In view of seriousness of dispute the spot would be inspected at 4 PM today. Both the parties be present.

Sd/- Sub Divisional Magistrate, Palampur.

4.00 PM 12.3.1992:

Spot inspected. Representative of his party present. Counsel for Respondent not present. In the presence of noteable of the city spot inspected in view of seriousness of dispute. There is emergent apprehension of breach of peace. Warrant u/s 146 Code of Criminal Procedure be issued. Warrant be issued tomorrow, Magistrate-Tehsildar be appointed Receiver.

Sd/- Sub Divisional Magistrate, Palampur.

The learned Counsel for the Petitioner has drawn attention of this Court to a judgment rendered by Gauhati High Court in Ashok Kumar Ghose Vs. Khetra Mohan Das, It was held that Section 145 finds place in Chapter X under the heading ''Maintenance of Public Order and Tranquillity'' and, therefore, order u/s 145 of the Code of Criminal Procedure can be promulgated only when there Is apprehension of breach of peace or tranquility in any manner or locality concerning any immovable property. It was also held that merely because there may be dispute between the two private parties, a proceeding u/s 145 cannot be drawn up unless the Magistrate is satisfied that this private dispute may disturb the peace or tranquility of that area. This judgment was delivered by me at Gauhati and I do not find any reason to take a different view.

For invoking Sections 145 and 146 of the Code of Criminal Procedure, the Magistrate must initially draw up proceeding u/s 145 of the Code of Criminal Procedure and in doing so, he must record the grounds of his satisfaction or the source of information he received and the fact that the dispute in question likely to cause a breach of peace exists concerning any land etc. Only after drawing up a proceeding u/s 145 Code of Criminal Procedure , the Magistrate can take action u/s 146 Code of Criminal Procedure Unless initial order u/s 146 Code of Criminal Procedure is passed, which should contain the grounds of the satisfaction of the Magistrate, subsequent proceedings will not be valid. This view was also expressed by the Madras High Court in Naresh Thevar and Ors. v. Executive Magistrate and Tehsildar and Ors. 1987 (1) Cri 886.

From the orders passed by the learned Sub Divisional Magistrate, as quoted above, it does not appear that the Magistrate recorded his satisfaction alongwith the grounds for drawing up proceedings u/s 145 Code of Criminal Procedure In fact, I do not find that any formal proceedings u/s 145(1) of the Code of Criminal Procedure was drawn up by the Magistrate. Nothing was also recorded before passing the order u/s 146 of the Code of Criminal Procedure and appointed Receiver by order dated 12.3.1992. It has also not been recorded that this dispute is likely to cause breach of peace in the locality. Though in the petition praying for drawing up of proceedings u/s 145 of the Code of Criminal Procedure, it was specifically mentioned that a Civil Suit is pending before the learned Sub Judged). Palampur, but this fact was not at all considered by the learned Sub Divisional Magistrate. That apart, as stated above, regarding the management of the temple, another Civil Suit is pending before this Court. The fact that injunction has already been granted by the Civil Court at Palampur was also not brought to the notice of the learned Sub Divisional Magistrate. Therefore, the impugned orders are liable to be set aside.

From the petition filed before the learned Sub Divisional Magistrate for drawing up proceedings u/s 145 Code of Criminal Procedure , Annexure P-4 to the present petition, I find that before the learned Sub Judge, Palampur, a prayer was made for appointment of managing Committee of the temple for better management. But on the other hand, from order dated 10.12.1992 passed by the learned Single Judge of this Court in OMP No. 609 of 1992 filed in connection with Civil Suit No. 167 of 1992, the learned Single Judge on the basis of the order dated 12.3.1990 passed by the learned Sub Divisional Magistrate directed that the temple should be managed as per orders of the learned Sub Divisional Magistrate and in other words by the Tehsildar, who was appointed as Receiver. In case the Respondent wants, he may apply for impleading him as party in the Civil Suit where Injunction has already been passed, by the learned Sub Judge, Palampur. The Petitioner may also bring to the notice of the learned Single Judge of this Court regarding the Civil Suit, which is pending for consideration whether both the suits may continue simultaneously.

A point has been raised that the present petition is not maintainable, as the earlier revision petition filed before the learned Sessions Judge by the present Petitioner was dismissed. This point need not detain me as I am satisfied that if the present proceeding is allowed to be continued, it will amount to multiplicity of litigation, which is not in the interest of the parties and it will be wastage of public time over the meaningless litigation. Therefore, this is a fit case for invoking the powers u/s 482 of the Code of Criminal Procedure.

Though all the orders passed by the learneu Sub Divisional Magistrate are liable to be quashed, but I refrain from quashing the order dated 12.3.1990, as on the basis of the said order, the learned Single Judge of this Court has approved the management of the temple by the Tehsildar, who was "appointed as Receiver by the learned Sub Divisional Magistrate. But I direct that the proceeding u/s 145 of the Code of Criminal Procedure shall be dropped.

In the result, the present petition is allowed with the above directions and observations.