Jia Lal vs The Sub Divisional Magistrate and another

R.N. Mittal, J.—This order will dispose of Criminal Misc. Nos. 5774-M and 5790-M of 1976, which have been filed on identical facts and contain similar question of law. The frets in the judgment are being given from Criminal Miscellaneous No. 5774-M of 1976.

It is alleged by the petitioner that he along with his brother Shiv Ram Dass, was the joint owner of the land in dispute and that be had been cultivating the land himself since long as he got it in family partition. He further goes to say that respondent No. 2 began to claim himself a tenant on the aforesaid land though he never came in possession thereof. The petitioner consequently filed a civil suit in the court of Subordinate Judge 1st Class, Pathankot against respondent No. 2 on October 4, 1976, for a permanent injunction to the effect that respondent No. 2 be restrained from interfering with his possession. He also prayed for an ad interim injunction order which was granted by the civil Court in his favour.

It is further alleged that respondent No. 1, in spite of the injunction order issued by the the civil Court, passed an ex parte order u/s 145 of the Code of Criminal Procedure (hereinafter referred to as the Code), on October 12 1976, by which he ordered attachment of the crops standing on the land in dispute. The petitioner, filed reply to the order and prayed that the same be vacated. The Magistrate, it is alleged instead of dropping the proceedings, is continuing with the case. The petitioner has filed this application u/s 482 of the Code for quashing the proceedings.

The first contention of the learned counsel for the petitioner is that if a civil suit is pending in a Court in which ad interim injunction is issued restraining the defendants from interfering with the possession of the plaintiffs, proceeding u/s 145 of the Code cannot be initiated by the police. A great controversy arose regarding the aforesaid matter in this Court. A large number of cases were decided by the learned Single Judges where in it was ruled that when the parties has gone to civil litigation and the civil Court issued injunction in favour of one of the parties, then the provisions of section 145 of the Code could not be invoked, while in some other cases contrary view was taken by the some learned Judges. In Mohindra Singh v. Dilbagh Rai (1976) 78 P.L.R. 803, the matter was referred to a Division Bench of this Court consisting of K.S. Tiwana and M.R. Sharma, JJ. K.S. Tiwana, J. speaking for the Bench observed that the Magistrate had the jurisdiction to continue proceedings u/s 145 of the Code irrespective of the pendency of the case between the parties about the same subject-matter and in spite of the ad interim orders. While making the above observations, the learned Judge placed reliance on a Supreme Court judgment in Sajjan Singh son of Jagan Nath Singh v. Sajjan Singh son of Bhairu Singh 1970 U.J.(S.C.)750 wherein is was ruled as under :-

In our opinion this case must go back to the Sub-Divisional Magistrate for decision of the proceedings before him. Those proceedings commenced as far back as 1967 and the question whether there is or there is not any apprehension of breach of peace will certainly have to be decided in the light of the happenings in the Civil Court. In the meantime we do not see any reason to order the setting aside of the order of the High Court. It will be open to the Sub-Divisional Magistrate to consider whether the Receiver should be continued or not, but in any event, he shall not disturb the possession of Sajjan Singh son of Jagan Nath Singh so long as the temporary injunction is outstanding and pending the decision of the proceedings u/s 145 of the Code of Criminal Procedure with a view to handing over the possession to the other side.

M.R. Sharma, J., agreeing with the conclusions of K.S. Tiwana, J. appended a short judgment in the following terms:--

It is no doubt true that in some of the cases I fell in line with the view taken by P.S. Patter, J, but latter on I had to shift this stand, firstly, because Saijan Singh''s ease (supra) decided by the Hon''ble Supreme Court of India was not brought to my notice and, secondly, because the realities of the situation so demanded. As pointed out by my learned brother K.S. Tiwana, J., section 145, Criminal Procedure Code, empowers the authorities concerned to take immediate preventive action in an emergency. Cases are not unknown in which in spite of an injunction issued by a civil Court the parties have tried to take forcible possession of land in disregard of the injunction orders. It would be in the fitness of things if the police intervenes in such a situation either suo Motu or on a report lodged by the weaker party. From a purely practical point of view, it would be proper not to crub this jurisdiction and to leave the aggrieved party to knock at the doors of the civil Courts to initiate proceedings for the disobedience of injunctional orders. At the same time, I would like to observe that jurisdiction u/s 145, Criminal Procedure Code, should be exercised with extreme caution if a civil Court is properly seized of the case. With these observations, I agree with the judgment proposed by my learned brother K.S. Tiwana, J.

From the above observations it is clear that police can initiate proceedings u/s 145 to the Code even though a civil litigation between the parties is pending in which one of the parties obtained an ad interim injunction order of the effect that its possession should not be disturbed. Similar view was taken by me in Criminal Miscellaneous No. 1484-M of 1977, (Arjan v. Gram Panchayat, Banga) Cr. Misc. 1484-M of 1977 decided on May 2, 1977.

The second contention of the learned counsel for the petitioner is that the order of the Magistrate, dated October 12, 1976, suffered from certain legal infirmities. He pointed out that the order was not in consonance with the language of section 145 of the Code and was, therefore, liable to be quashed. I am not impressed with this contention of the learned counsel. This petition is purported to have been filed u/s 482 of the Code which gives inherent powers to this Court to make such orders as may be necessary to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The question, which now arises for determination, is whether this Court can quash or modify the order under inherent powers. Section 397 of the Code deals with the revisional powers of the Court. Sub-section (1) authorises the High Court to call for and examine the record of any proceedings before any inferior Criminal Court situate within its jurisdiction, for the purpose of satisfying itself to the correctness, legallity or propriety of any order passed by such inferior Court. Sub-section (2) is a proviso to subsection (1) and puts an emba go on the powers of the Court to exercise its power regarding interlocutory orders. It says that the powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. After noticing section 482 and 397 of the Code, S.C. Mital, J., in Captain Manak Pratap Singh and others v. The State of Punjab Cri. Misc. No. 3049 of 1976, (Criminal Miscellaneous No. 3049 of 1976 decided on February 14, 1977), observed as under:--

Where interference by revisional court with an interlocutory order is prohibited by the new Code, invocation of the inherent power u/s 482 of the code to set aside the order would defeat the object of the new Code. Hence the inherent power be not invoked in such a case.

By and large the accused person comes into the picture when he is summoned by a Court by passing an interlocutory order. Subsequently also interlocutory orders may be passed against him. The passing of such order or orders will not stand in his way to invoke the inherent power of this Court, if he is able to make out a case for quashing the entire proceedings, including the interlocutory order.

I am in respectful agreement with the above observations I am therefore, of the opinion that this Court has got no jurisdiction to quash or modify an interim order u/s 482 of Code. It can only quash the proceedings under the aforsaid section. It will, however, be relevant to mention that the learned Magistrate trying the proceedings u/s 145 of the Code while deciding the case should bear into mind the observations of the learned Judge in Mohinder Singh''s case (supra) to the effect that jurisdiction u/s 145 of the Code should be exercised with extreme caution in case a civil Court is properly seized of the case. Consequently, I do not find any merit in this contention of the learned counsel for the petitioner.

For the reasons recorded above, these petitions fail and the same are dismissed.