Gurbax Singh vs Kesro Devi

Mrs. Bakhshish Kaur, J.

The challenge in this petition is to the order passed by the learned Sub Divisional Judicial Magistrate, Dera Bassi under sections 145 and 146 of the Cr.P.C. The petitioners have, therefore filed this petition under Section 482 Cr.P.C. for quashing order dated August 25, 1999 Annexure P1 and all other proceedings taken on the basis of the report of the SHO.

The proceedings under Section 145 Cr.P.C. were initiated on the report of SHO, Dera Bassi as the dispute relates to a piece of land between Kesro Devi on one side and Gurbax Singh and Mewa Singh from the other side. The learned Sub Divisional Magistrate, Dera Bassi vide his impugned order dated August 25, 1999 Annexure P1 passed the relevant order which reads as under :

"I am also satisfied on the report of the Station House Officer Dera Bassi that in respect of the possession of the land in question, both the parties can have fight at any time and serious occurrence can take place in addition to breach of peace. Therefore, I, Sher Singh Sidhu, PCS, Sub Divisional Magistrate, Dera Bassi attach the above referred land under Section 146 of the Code of Criminal Procedure and appoint the area Revenue Officer (Smt. Inderjit Kaur Kang) Tehsildar Dera Bassi, as Receiver and direct her to take the possession of the same immediately and make a report about it."

The land covered under order Annexure P1, as above, is subject matter of civil litigation between the parties which is still pending and copy of the order passed in the suit for declaration and for permanent injunction filed by Gurbax Singh and Mewa Singh against Sucha Singh and others is Annexure P2. This order was passed on March 10, 1999 on an application filed under order 39 rule 3A CPC. In his order the learned Civil Judge has made reference to copy of jamabandi for the year 199293 besides the registered sale deed dated 3.9.1998/24.9.1998 executed by Pritam Singh and the relevant part of the order reads as under :

"The plaintiffs are prima facie shown to be the owners of the suit property on the basis of registered sale deed dated 3.9.1998, mutation has also been sanctioned in the name of the plaintiff. Accordingly, I considered it a fit case for grant of an exparte adinterim injunction and the defendants are hereby restrained from interfering in the peaceful possession of the plaintiff over the suit property except in due course of law till the date fixed. Let notice of this application as well as this order be served on the defendants for 1.4.1999."

Once the order was passed by the Civil Court by satisfying itself that prima facie case is made out in favour of the plaintiffs, that they are owners in possession, and restraint order was issued restraining Kesro Devi and others from interfering in their peaceful possession except in due course of law, as on 10.3.1999, then the learned Sub Divisional Magistrate could not pass an order on August 19, 1999 by appointing Smt. Inderjit Kaur Kang, Tehsildar as Receiver and directing her to take possession of the land immediately. The counsel for the respondents admitted that the suit for permanent injunction filed by Gurbax Singh and others is still pending and the fact that the said order passed by the trial court u/o 39 Rule 3 CPC has not been vacated as yet. The resort taken by the respondents through the proceedings under Section 145 Cr.P.C. appears to be a device to defeat the injunction order passed by the Civil Court. It is well settled that the finding given by the trial Court is binding on the criminal Court and the converse is not true. In other words the proceedings under Section 146 Cr.P.C. will apply only when the Magistrate decides that none of the parties was in possession and that there would be breach of peace if no action taken under Section 146 Cr.P.C. This is not the position in the case in hand, therefore, initiation of proceedings under Section 145/146 Cr.P.C. was unwarranted and abuse of the process of the Court.

For the aforesaid reasons, this criminal misc. petition is allowed and the impugned orders are set aside. The Cril. Misc. No. 29585 of 1999 filed by applicantrespondents No. 1 recalling of the order dated Sept. 6, 1999 has become infructuous.