Joginder Singh vs State of Punjab and Another

S.S. Rathor, J.—In this petition u/s 482 of the Code of Criminal Procedure, the impugned order placing the land in dispute under attachment during the pendency of the proceedings u/s 145, Cr. P.C. passed by the Executive Magistrate, Sangrur, is sought to be quashed. Of course, in this petition, it has been alleged that in view of civil litigation and ad interim stay passed by the civil Court, initiation of proceedings u/s 145, Cr. P.C. is not warranted by law. But in this petition, no prayer has been made to seek quashing of notice u/s 145(1) of the Code.

While opening arguments, Mr. Ajay Pal Singh has stated that issuance of notice u/s 145(1), Cr. P.C. and resultant proceedings u/s 145, Cr. P.C. are revisable against which he did not file any revision before the Court of Sessions Judge, Sangrur, He made it clear that his client had filed a revision before the Court below only against the attachment order dated 20-6-1990 passed u/s 146(1), Cr. P.C. annexed as Annexure P1 with this petition. That revision was got dismissed as withdrawn vide order dated 29-10-1990 (Annexure R-6) being incompetent as an order of attachment u/s 146(1), Cr. P.C. is an interlocutory order and redressal against the same can only be obtained u/s 482, Cr. P.C. before this Court. In view of these submissions Mr. Ajay Pal Singh has very fairly confined his arguments to the legality and vires of the attachment order in question u/s 146(1) Cr. P.C. In view of this, now I would be dealing only with the legality and impropriety of the impugned order of attachment (Annexure P1) dated 20-6-1990 passed u/s 146(1), Cr. P.C.

The land in dispute measures 23 Kanals 2 Marias situated in village Sheron, tehsil and District Sangrur. It has been alleged in the petition that one Hardev Singh was the owner of the property in dispute and he had monetary dealings with the petitioner so much so that petitioner gave a loan of Rs. 50.000/- or so to said Hardev Singh and said Hardev Singh in lieu thereof gave possession of the land in dispute to the petitioner. Due to non-return of the loan, petitioner had to file a civil suit on 4-2-1989 when he apprehended that said Hardev Singh was contemplating to alienate the land in question. Petitioner also obtained stay order dated 4-2-1989 (Annexure P2) vide which the civil Court restrained said Hardev Singh from alienating the land. It seems that after the initiation of the said suit, said Hardev Singh sold the property in dispute to the respondents vide registered sale-deed dated 22-2-1990 (Ann. R1). Feeling aggrieved from the execution of the sale-deed, the petitioner filed a civil suit on 7-3-1990 to the effect that the said sale-deed dated 22-2-1990 in favour of Joginder Singh son of Shamsher Singh is illegal, void without consideration and has been manipulated to defeat the right of the plaintiff to recover the debt amount. Further, injunction was sought in the suit that the plaintiff is in peaceful possession of the property in dispute and the defendants in the suit be restrained from dispossessing the plaintiff from the land in dispute forcibly. Alongwith the suit, an application under Order 39 Rules 1 & 2 was also filed and on the said application, the trial Court passed an order dated 7-3-1990 to the effect that "The defendants are restrained from disturbing the possession of the plaintiff over the suit land till further order. "On notice of said application, the defendants in the suit i.e. Juginder Singh s/o Shamsher Singh (respondent) and Hardev Singh appeared in the Court and contested the suit as well as the issuance of injunction order as narrated above. During the pendency of the suit proceedings involving rival contentions of the parties as to who is in possession of the property in dispute, the 1d. Sub Judge passed an order dated 2-2-1991 (Ann. R2) modifying the previous order dated 7-3-1990, directing the parties to maintain status quo regarding possession of the suit property. This order of modification was passed as the counsel for the parties had no objection for the said modification. The resultant effect is that on an application under Order 39 Rules 1 and 2 CPC, the trial Court directed the parties to maintain status quo till the final decision of the civil suit.

When the parties to the civil suit were battling before the civil court as to the factum of possession, Shri Joginder Singh s/o Shamsher Singh, defendant in the civil suit and respondent in this petition, filed an application for initiation of proceedings u/s 145 Cr. P.C. The said application was received by the S.H.O. through Deputy Superintendent of Police concerned on 22-3-1990 and thereupon, the S.H.O. made a report dated 31-3-1990 to the Executive Magistrate. On receipt of the report, the Executive Magistrate vide order dated 17-4-1990, issued notice (Annexure P4) u/s 146(1) Cr. P.C. On being served notices to the parties, they appeared before the Executive Magistrate on 3-5-1990. Thereafter, the parties had been directed to file their respective claims in terms of provisions of Section 145, Cr. P.C. For recording of evidence of the parties, the case was thereafter adjourned to 8-5-1990, 15-5-1990, 22-5-1990, 1-6-1990, 14-6-1990, 5-7-1990 and so on. The mentioning of these dates is relevant to show that during the pendency of such proceedings, and application dated 3-5-1990 was moved by respondent-Joginder Singh to the Senior Superintendent of Police. Sangrur wherein he alleged that he had sown wheat crop but the same had been harvested by the present petitioner. A preventive action to protect the property was requested against the petitioner. There is no dispute that the petitioner in this litigation has been proceeded against under Sections 107/151, Cr. P.C. and he has been bound down for maintaining the peace. After this application, the case was adjourned to various dates given above. However, on 4-6-1990, another application was moved before the Executive Magistrate (G.A.) Sangrur for taking action against the petitioner and others. It was alleged in the application that the applicant had purchased the land vide sale deed dated 22-2-1990 and even possession of the same has not been delivered to him under the sale by the vendor. It was also alleged that on previous occasion, also, the opposite party has harvested the crops sown by the applicant and the said persons are not in possession of the land. It was also stated in the application that now he had sown maize crop and cotten crop and the petitioner has harvested the said maize crop. After narration of these facts in the application a prayer was made that a case of theft be registered against the delinquents. This application in due course was sent to S.H.O. Longowal for report. The S.H.O. on 4-6-1990, made a report that dispute between the parties is already pending in the Court. All documents pertaining to the case have been sent to the Court for proceedings u/s 145, Cr. P.C. and notices u/s 145 have already been issued to the parties concerned. It was also reported that proceedings u/s 145 & 107/151, Cr. P.C. have already been initiated against Joginder Singh son of Bhajan Singh, the present petitioner. The S.H.O. also reported that no action is called for at this stage. However, he observed "A Receiver may kindly be appointed in respect of this land in order to stop interference by both the parties in the land and to avoid any fight between them". In the background of the facts narrated above, the contents of the application moved by the respondent and the report of the S.H.O, dated 4-6-1990, the learned Executive Magistrate passed the impugned order (Ann. P1) u/s 146(2) Cr. P.C. ordering attachment of the property in dispute. The said order is reproduced below:--

Whereas an order dated 17-4-1990 has already been passed by me u/s 145(1) of the Cr. P.C. on account of dispute between the abovementioned parties over the possession of land comprised Khasra No. 533/1034 Khasra Nos. 143/21/2(3-2) 22/8-0, 166/(4-0) 2/8-0 measuring 23 Kanal 2 marlas situated in the Ravenue Estate of village Sheron, SHO Longowal in a subsequent report dated 4-6-90 reported that there is likelihood of breach of peace between parties and attachment u/s 146(2) of the Cr. P.C. may be made. From the police report dated 4-6-90, I am satisfied attachment of the land is necessary. Therefore, I consider this case as one of an emergent nature and order the attachment of the above said land u/s 146(2) of Cr. P.G. Naib Tehsildar Longowal is appointed its Official receiver. The receiver will exercise all the powers of a receiver appointed under the CPC and will get examination under rules.

Sd/- Executive Magistrate, Sangrur.

A bare reading of the impugned order (Annexure P1) shows that it is not legally sustainable. The same has been passed without application of mind to the facts of the case and material before the Court. There is no dispute that respective parties claimed possession of the suit property both in the Civil Court proceedings as well as the proceedings u/s 145, Cr. P.C. The civil Court has ordered for maintaining the status quo : In view of the order of status quo directed to be maintained by the parties vide orders of the civil Court, ordering attachment of the property in question amounts to encroachment upon the jurisdiction of the civil Court. The object of this status quo passed by the civil Court is in very clear terms that the party who is in possession should remain in possession during the pendency of the suit. In the present case, besides passing of the order of status quo, proceedings u/s 107/151 had already been initiated against the petitioner and he had been bound down to maintain peace. After binding him down u/s 107/151, Cr. P.C. if the petitioner is in possession as he claims, the Executive Magistrate had no authority of law to take away the property from the hands of the petitioner and hand over to a receiver appointed by him.

Mr. Amarjeet Markan, counsel for the respondents has strongly contended that this Court cannot look into sufficiency of the material on the basis of which the Executive Magistrate has ordered initiation of proceedings under Sections 145 and 146, Cr. P.C. In support of this, he has placed reliance on a Supreme Court judgment reported in R.H. Bhutani Vs. Miss Man J. Desai and Others, and Anr. judgment of this Court reported in Smt. Soma alias Sahib Kaur v. Gurnam Singh (1984) 2 Ch LR (Cri) 512. There is no dispute about the proposition of law enunciated in the said judgments. The aforesaid Supreme Court judgment primarily deals with the scope of proceedings u/s 145(1), Cr. P.C. It has been laid down that it is the subjective satisfaction of the Magistrate to initiate proceedings u/s 145(1), Cr. P.C. Such proceedings may be initiated either on police report or other information. No hard and fast rule can be laid down as to when this discretion is to be used for initiation of proceedings. In that case, in the proceedings before the Magistrate the main question was, whether the appellant was in actual possession on June 11, 1966 and whether he was forcibly and wrongfully dispossessed by the respondents or whether he had himself vacated and surrendered the possession of the property to the respondents? It is evidently clear that the attachment of the property was not involved in that case. In Smt. Soma alias Sahib Kaur (Supra)''s case also the facts were quite different. Smt. Soma had got initiated proceedings u/s 145, Cr. P.C. and later on also got the property attached u/s 146, Cr. P.C. Gurnam Singh, respondent went in revision before the Sessions Judge and the revisional Court set-aside the order of attachment on the ground that the order in question was of composite nature having initiated proceedings u/s 145(1) and u/s 146, Cr. P.C. by one and same order Smt. Soma came before this Court, challenging the order of the Sessions Judge in revision. Her case before this Court was that proceedings Under Sections 145 and 146, Cr. P.C. can be passed without issuing notice to the opposite party and by one composite order and the revisional Court could not look into the sufficiency of the material on the basis of which the said orders were passed. This Court agreed with this contention and while setting-aside the orders of the revisional Court, maintained the orders of trial Court. In the said case, the validity of the attachment order was not at all challenged before this Court. Rather, this court held that order of attachment could not be interfered with by the Court of Sessions Judge as an order u/s 146(1) is of interlocutory nature and no revision lies. Further, in that case, the Court made a reference to the decision in Kartar Singh v. Smt. Pritam Kaur 1984 Cri LJ 248 (Punj & Har). As such, these two judgments cited by Mr. Markan are of no avail to the respondents.

6A. It has already been made clear that the counsel for the petitioner has assailed the legality and propriety of passing of attachment order u/s 146(1), Cr. P.C. and appointment of a Receiver under Sub-clause (2) of the said section.

The impugned order of attachment also suffers from another vice, Trial Magistrate has not applied his mind even and has not recorded any finding even remotely that it was a case of emergency or that none of the parties was then in possession as referred to in Sub-section (1) of Section 145 or that he was unable to satisfy himself as to which of them was then in such possession of the subject of dispute. Section 146, Cr. P.C. makes it clear that if any of the aforesaid conditions exists, then and then alone the Magistrate can order attachment of the property until rights of parties with regard to their entitlement as to possession are decided by a competent Court. The impugned order (Annexure P1) speaks of nothing in terms of any of the aforesaid conditions. Mere observations of the learned Magistrate. Therefore, I consider the case as one of the emergent nature and order attachment of the suit land", are in isolation. These observations have to be read in the light of the whole contents, the facts and circumstances, which ultimately culminated in the passing of the said order. In view of "status quo" order of civil Court and proceedings u/s 107/ 151, Cr. P.C. against the petitioner the Magistrate was not in a position to satisfy himself regarding any of these conditions particularly when the parties are litigating in civil Court over the question of possession. Moreover, vide applications dated 3-5-1990 (Ann. R7) and dated 4-6-1990 (Annexure R8) the respondent has clearly said that the crop was sown by him but the other party had harvested the crop and that legal action be taken against them. These applications only suggested taking of preventive action and lodging a case of theft against the petitioner at the most. Report (Annexure R9) also does not furnish any material to the Magistrate for ordering attachment of the property. So looked from any angle, taking into consideration all the material collected during proceedings before the Executive Magistrate, no case for attachment of the property in question is made out. The attachment of the land in dispute is nothing but abuse of powers, Hence the impugned order of attachment is a result of palpable error of jurisdiction.

Keeping in view the facts of this ease and for the reasons recorded above, this petition is allowed ''quashing the impugned order of attachment (Annexure P1). The proceedings u/s 145 of the Code are allowed to proceed and the parties through their counsel are directed to appear before the Executive Magistrate, Sangrur on June 20, 1991. The learned Magistrate is directed to decide the proceedings u/s 145 of the Code as early as possible. It is made clear that the various documents produced before this Court by respective parties in support of their rival claims of possession over the disputed property, have not been commented upon as the decision of the proceedings in terms of Section 145, Cr. P.C. has been left open for the Executive Magistrate. It is further made clear that the learned Magistrate shall keep in mind and strictly follow the ingredients and scope of limited enquiry of preventive nature u/s 145, Cr. P.C. Petition stands disposed of accordingly.