Gurinder Kaur vs Sub Divisional Magistrate and Others

L.N. Mittal, J.—Gurinder Kaur has filed the instant petition u/s 482 of the Code of Criminal Procedure (in short -`the Code'') for quashing the kalandra dated 18.07.2006 (Annexure P-7) u/s 145 of the Code and order dated 03.08.2006 (Annexure P-10) passed by learned Sub Divisional Magistrate, Bagha Purana, initiating proceedings u/s 145 of the Code and appointing Tehsildar Bagha Purana as Receiver of the disputed land u/s 146 of the Code, and for quashing all consequential proceedings.

Petitioner is widowed daughter-in-law of respondentNo. 3. The dispute relates to inheritance of disputed land from petitioner''s husband Yadwinder Singh. The petitioner claims a registered Will in her favour. Petitioner filed civil suit Annexure P-3 against respondentNo. 3 and others, whereas respondentNo. 3 and another filed civil suit against the petitioner (Annexure P-4). In that suit, ex-parte order dated 19.08.2005 (Annexure P5) was passed by the civil court directing the parties to maintain status quo over the disputed property. The said order of status quo was confirmed vide order dated 13.03.2006 (Annexure P-6). Thereafter, the police filed the impugned kalandra dated 18.07.2006 (Annexure P-7) for initiating proceedings u/s 145 of the Code. Vide order dated 18.07.2006 (Annexure P-8), both the parties i.e. petitioner and respondentNo. 3 were directed to appear before the Sub Divisional Magistrate on 25.07.2006, along with their documentary evidence. Thereafter, learned Sub Divisional Magistrate, vide detailed order dated 03.08.2006 (Annexure P-10) ordered to initiate proceedings u/s 145 of the Code and directed the parties to appear on 24.08.2006 to adduce their evidence u/s 145(4) of the Code. Simultaneously, Tehsildar Bagha Purana was appointed as Receiver to take the disputed land into his possession and to make appropriate arrangement for the same. Feeling aggrieved, the petitioner has filed the instant petition.

Learned Counsel for the petitioner vehemently contended that since civil court is seized of the matter, proceedings u/s 145 of the Code should not have been initiated. It was also pointed out that even in the impugned kalandra, it has been observed that petitioner had sown paddy crop in the disputed land meaning thereby that the petitioner is in possession of the disputed land. Learned Counsel for the petitioner relying on judgments in the cases of Mange Ram v. Sub Divisonal Magistrate reported as 1985 (2) R.C.R. 208, Gian Chand and Ors. v. State of Haryana and Ors. reported as 2005 (3) R.C.R. 958 Ranbir Singh v. Dalbir Singh reported as 2006 (2) R.C.R. 275 Mahar Jahan and Ors. v. State of Delhi and Ors. reported as 2006 (2) R.C.R 80 and Ram Sumer Puri Mahant v. State of U.P. reported as 1985 (1) R.C.R. 278 contended that the proceedings under Sections 145 and 146 of the Code are not maintainable as civil court is seized of the matter. It was also contended on the strength of these decisions that if still there was apprehension of breach of peace, proceedings could be initiated under Sections 107 and 151 of the Code or civil court could be approached for modification of the interim order of status quo. Learned Counsel for the petitioner also cited two judgments in the cases of Sarwan Singh v. Sub Divisional Magistrate, Ferozepur reported as 1997 (3) R.C.R. 279 and Shri Raghbir Dass Mahant Chela Madan Mohan Dass v. Sub Divisional Magistrate, Jagadhri and Ors. reported as 2003 (1) R.C.R. 829 wherein it was observed that even if there is order of status quo by the civil court Magistrate cannot initiate proceedings u/s 145 and 146 of the Code and for apprehension of breach of peace, proceedings under Sections 107 and 151 of the Code could be initiated. Reliance on behalf of the petitioner has also been placed on a judgment in the case of Malkiat Singh v. State of Punjab and Anr. reported as 1997 (2) R.C.R. 303, wherein it was observed that according to the police report, petitioner was in possession of the disputed property and therefore, initiation of proceedings u/s 145 of the Code was not justified.

On the other hand, learned Counsel for respondentNo. 3 contended that since there was only status quo order of the civil court, and there was apprehension of breach of peace, the Magistrate was competent to initiate proceedings under Sections 145 and 146 of the Code. Reliance in support of this contention has been placed on four judgments in the cases of Jaswant Singh v. State of Punjab reported as 1997 (3) R.C.R. 705, Mukhtiar Singh v. State of Punjab reported as 1997 (3) R.C.R. 14, Pushpinder Kaur v. Sub Divisional Magistrate Rajpura reported as 1997 (3) R.C.R. 315 and Roshni Devi v. State of Haryana reported as 1999 (1) R.C.R. 163.

I have carefully considered the rival contentions and perused the precedents cited by both sides. The weight of the precedents, however, is in favour of the proposition that the Magistrate should not initiate proceedings u/s 145 and 146 of the Code when civil court is already seized of the matter. For apprehension of breach of peace, proceedings could have been initiated against Section 107 and 151 of the Code or even the civil court could be approached by either side for modification of temporary order of status quo.

Learned Counsel for respondentNo. 3 also relied on two judgments in the cases of Sahib Singh v. State of Punjab reported as 2000 (2) R.C.R. 135 and Mahant Ram Saran Dass v. Sub Divisional Magistrate reported as 2000 (2) R.C.R. 82. However, these decisions are distinguishable on facts.

In view of the aforesaid, since civil court is already seized of the matter, continuation of proceedings u/s 145 and 146 of the Code would be an abuse of the process of the Court. Accordingly, the instant petition is allowed and the impugned kalandra (Annexure P-7) u/s 145 of the Code and impugned order (Annexure P-10) appointing Tehsildar as Receiver u/s 146 of the Code are quashed along with all consequential proceedings. Learned Sub Divisional Magistrate, Bagha Purana is directed to restore status quo ante as it existed before passing of the impugned order dated 03.08.2006 (Annexure P-10).

The petition stands disposed of accordingly.