Jaswant Singh vs State of Haryana and Others

Nirmal Singh, J.—This order will dispose of Crl.Misc.Nos.27686-M of 2001 and 42059-M of 2001 as both these petitioners are filed u/s 482 Cr. P.C. to quash the Kalandra and subsequent- proceedings.

The facts for the disposal of this and other connected petition are being extracted from Crl.Misc.No.2786-M of 2001 and arc that earlier the father of the petitioner was in possession of the disputed land Sonu Ram was the shareholder in the land. Petitioner purchased some share of Sonu Ram and some of the share of the land was sold by Sonu Ram to one Naresh Kumar and others. Sonu Ram never remained in possession of the land and petitioner was in cultivating possession. The share of Sonu Ram was also cultivated by the petitioner. Naresh Kumar and others. Sonu Ram never remained in possession of the land and petitioner was in cultivating possession. The share of Sonu Ram was also cultivated by the petitioner. Naresh Kumar, to whom Sonu Ram sold some share of his land, never came in possession of the land, after purchasing the said land. Naresh Kumar filed a suit before the Assistant Collector. 2nd Grade, Radaur on 23.3.2001. Naresh Kumar was having relation with S.H.O. Radaur. He and his family members want to take forcible possession from the petitioner and his family. For that they attacked on the petitioner and his family members. FIR No.85 dated 10.6.2001 was registered against Naresh Kumar and others. Naresh Kumar with the connivance of S.H.O. Radaur got Kalandra prepared u/s 145 Cr. P.C. and the same was presented before the Sub Divisional Magistrate. Jagadhari.

Petitioner has sought the quashing of the kalandra on the following grounds:-

i) That the respondents has already filed civil suit. He has tiled the suit for correction of Khasra girdawari. It is admitted by the respondents in para 6 of the plaint that in the revenue record, the entries are in the name of the petitioner. Once the respondents have taken the remedy of tiling the change of khasra girdawari, then proceedings u/s 145 Cr. P.C. cannot be initiated.

ii) That there is no apprehension to breach of peace. The case was registered one month back and the petitioner and other persons have taken the anticipatory bail and peaceful atmosphere is there. The respondent Naresh Kumar and others attacked to take forcible possession without seeking the other remedies. There is no necessity to appoint the receiver or to initiate proceedings u/s 145 Cr. P.C.

iii) That the respondents have not impleaded other shareholder who are in joint possession of the land. Once the possession is mustarka joint, all the shareholders are necessary part. Without impleading them, the proceedings cannot be initiated against the petitioner only,

iv) That proceedings tinder Section 145 Cr. P.C. is with malafide intention. Dhanna Ram; SHO is relative of Naresh Kumar and he is moving this Kalandra just to get the possession to Naresh Kumar or to appoint receiver so that the petitioner an be ejected.

v) That the action of respondent is against principles of natural justice, the petitioner is in possession of the land since more than 50 years and Sonu Ram has not come and defend the case of respondents. He has not been impleaded as a party to know whether he was in actual possession or not. Respondent No.3 never came in possession of the land, therefore, initiation of proceedings u/s 145 Cr. P.C. is misuse of process of law.

vi) That the latest khasra girdawari is in the name of the petitioner, therefore, the petitioner is cultivating the land in dispute. The possession of the petitioner is proved."

Reply on behalf of respondent No. I was filed by Surinder Vats, S.H.O. Radaur. It was pleaded that on 10.6.2001 as ruqa regarding the admission of Naresh Kumar was received from the C.H.C. Radaur and another ruqa regarding the admission of petitioner Jaswant Singh was received in the police station from Gaba Hospital. ASI Jia Narain went to Civil Hospital and recorded the statement of Naresh Kumar. Statement of Jaswant Singh was also recorded. On the statements of Jaswant Singh and Naresh Kumar, a cross-case under Sections 323/325/326/506 IPC was registered against both the parties vide FIR No.85 dated 10.6.2001 it was further pleaded that during investigation, it was found that both the parties have claimed their possession over the disputed land and the possibility of tight between the parties was inevitable. So keeping in view the peace and tranquility between both the parties a kalandra u/s 145 Cr. P.C. was filed in the Court of S.D.M. Jagadhari and the same is pending. It was denied that Naresh Kumar is relative of S.H.O. Radaur or he has helped Naresh Kumar.

Respondent No.3 also tiled separate reply and raised preliminary objection that petitioner has challenged quashing of the kalandra but the learned Sub Divisional Magistrate. Jagadhari has passed the order of attachment u/s 146(1) Cr. P.C. and receiver has been appointed. In pursuance of the order passed by Sub Divisional Magistrate, receiver has been appointed. In pursuance of the order passed by Sub Divisional Magistrate, receiver has taken the possession of the land in dispute. The. petitioner has not challenged the proceedings u/s 145(1) Cr. P.C. Respondent Nos.4 to 10 who are close relatives of the petitioner have already filed revision petition before the learned Addl. Sessions Judge, Jagadhari. The same is pending, for adjudication. The continuation of the present petitioner would be abuse of process of law and deserves to be dismissed.

On merit, it was pleaded that respondent No.3 has purchased the land from Sonu Ram the extent of his share. He has delivered the possession to the respondents. At the time of registration of sale deed, it was pleaded that petitioner wanted to take the possession of the share owned by Sonu Ram which was delivered to respondent No.3 and respondent has also filed an application before the Asstt. Collector 2nd Grade for the correction of khasra girdawari. It was denied that the respondent Naresh Kumar has any relation with S.H.O. Radaur.

I have considered the submissions made by learned counsel for the petitioner and persued the record.

The petitioners have challenged the order initiating proceedings u/s 145(1) Cr. P.C.

The proceedings initiated u/s 145(1) Cr. P.C. is a revisable order as it has been held in Varinder singh v. State of Haryana. 1998(2) RCR (Cri.) 372, Similar view has been taken in Surinder Singh v. Stale of Haryana, 1996(2) RCR (Cri.) 155.

When an order is revisable. there is specific provision under the Cr. P.C. to impugn the order, then the petition u/s 482 Cr. P.C. is not maintainable. In this regard, reliance can be placed on Balabhadra Dash and another v. State of Orissa and others. 1991 Cri.1.12457 in which his Lordship has held as under:-

"Inherent power is wide in nature and Section 482 in Cr. P.C. having been made to secure ends of justice or to prevent abuse of the process of Court, such power is to be exercised with great restraint. Wider would be the power, greater should be the restraint. Ordinarily, trial of an accused in a criminal prosecution is to be concluded under the provisions of criminal procedure code and High Court would be reluctant to conclude the same at an interim stage. Therefore, prayer for quashing charge or taking cognizance ought not to be entertained in a routine manner and unless High Court is satisfied that there is abuse or process of Court or ends of justice demands it, such prayer ought not to be entertained. Even if, such prayers are entertained, all endeavours should be made to examine if the abuse of powers of Court can be eradicated without bringing the proceeding to an end in the midway. Where accused would be put to such inconvenient position that subsequent examination of these questions would materially affect him which would be irreparable in nature. High Court can for reasons to be recorded in that regard, examine the materials to interfere with the continuance of trial. Therefore, where all the accused persons had an opportunity to advance submissions before the Magistrate that materials on record do not call for framing of charge against then High Court declined exercise of inherent powers for quashing cognizance. In subordinate authority higher authority should not exercise its powers to give same relief."

In Mohan Lal and Another Vs. State, it has been held as under:-

The inherent power of the High Court under that provision, to my mind, cannot be pressed in aid for the purposes of indirectly undoing or modifying an order which is appealable or revisable and has become final because no appeal or revision was filed against it or having been filed were dismissed thus giving finality to the same. The order of the learned Magistrate dated 17th January, 1969 and the appellate orders therefrom are not in challenge in these proceedings."

Mr. S.D. Dinarpur. 1earned counsel for the respondents pointed out-that respondent No.3 has specifically pleaded that respondent Nos.4 to 10 are close relations of the petitioner. They have filed a revision against the order dated 4.9.2001. He submitted that the petitioners instead of approaching the Court of Sessions have filed the present petition u/s 482 Cr. P.C. in this Court. He contended that when the subject matter is pending in the Court of Sessions, the petitioners should have contested those proceedings and put up his claim there instead of approaching this Court. He contended that once the matter is pending in the Court of Sessions, the petition u/s 482 Cr. P.C. can not be entertained.

Shri R.S. Mamli, learned counsel for the petitioners submitted that the persons who have filed the revision, have no concern with the land in dispute and the petitioners are not aware whether any such petition has been filed or not, therefore, there is not bar to the petitioners to file petition u/s 482 Cr. P.C.

I have considered the rival contentions but find force in the submission made by the counsel for the respondents.

The powers u/s 482 Cr. P.C. are to be used very sparingly only to prevent the abuse of the process of law or to give effect to an order passed under the Code or to secure the ends of justice but when a party has an alternative remedy to redress his grievance and the parly is availing the same, the petition u/s 482 Cr. P.C. is not to be entertained. Admittedly, revision petition filed by respondents 4 to 10 is pending in the Court of Sessions. From the record is shows that the petitioners were aware with regard to the proceedings pending in the Court of Sessions before filing this petition. The petitioners have not intentionally and deliberately disclosed this fact while filing this petition. When a party is concealing the material fact from the Court then such party is not entitled to any relief

For the reasons mentioned above, there is no merit in this petition. The same is dismissed. However, petitioner is at liberty to pursue his remedy in the Remedial Court where the matter is pending and can raise all the pleas as has been raised in this petition.