Kehar Singh vs Satnam Chand and ors.

A.P. Chowdhri, J.

This is a petition under Section 482 of the Criminal Procedure Code (hereinafter called the Code) for quashing the order dated 451989 Annexure P. 5 under Section 146 (1) of the Code by the Executive Magistrate, Sirsa. The material facts leading to the present petition are: one Ganga Devi was the original owner of 14 Kanals 16 Marlas of land in dispute at village Natar, Tehsil and District Sirsa. She entered into an agreement of sale in favour of the respondents on 3131986. The case of the respondents is that the original owner accepted earnest money under the agreement and delivered actual possession of the land to them. On 16101986, however, Ganga Devi executed a registered saledeed in favour of Kehar Singh petitioner and his brother Sham Singh regarding the said land for Rs. 44,000/. The case of the petitioner is that actual possession was delivered by Ganga Devi to him and his brother Sham Singh On 22101986 the respondents filed civil Suit No. 625 in the Court of Subordinate Judge, Ist Class, Sirsa. An ex parte injunction was given in favour of the respondents against Kehar Singh and his brother restraining them from interfering in respondents possession of the land in question. The petitioner and his brother appeared and opposed the application and the ad interim injunction was vacated by order Annexure P. 1 dated 29111986. Appeal against the order of the Subordinate Judge was dismissed by the learned Additional District Judge on 9121986 vide Annexure P. 2. Ultimately, the respondents appeared to have lost interest in the said suit for permanent injunction, which was dismissed for default on 16111988 vide order Annexure P. 3. No application for restoration of that suit has been made so far.

Three days later Kehar Singh and his brother filed civil suit No. 611 on 25101986 and adinterim ex parte injunction was granted by the learned Additional Senior Subordinate Judge, Sirsa on 25101986 (Annexure P. 4). The application for temporary injunction in which the above adinterim injunction was issued is still pending.

The respondents instituted another civil suit No. 708 on 13121986 in the Court of Additional Senior Subordinate Judge. This was a suit for specific performance filed against the agreement seller Ganga Devi. The respondents impleaded the petitioner and his brother Sham Singh in that suit. At the time for framing issues the learned Court recorded the statements of the counsel of respondents as also of the petitioner and his brother and an agreed order that the parties will maintain status quo with regard to possession was passed on 6111987. Copy of the order is Annexure R. 1.

On 1851987 the respondents made an application under Section 145 of the Code to the Executive Magistrate, Sirsa. Kehar Singh and his brother appeared as the second party before the Executive Magistrate on 1.6.1987. It appears that both the parties filed their statements of claims and have led evidence. In the course of proceedings under Section 145 of the Code, the learned Executive Magistrate passed an order in the presence of counsel for parties on 2741989 that he would inspect the spot on 1589 at 5.10 P.M. In the presence of the parties he actually inspected the spot on the date and time fixed. On the basis of his inspection and in view of the fact that earlier there had been one criminal case and proceedings under sections 107/151 of the Code between the parties, he passed the order under Section 146 of the Code dated 451989, Annexure P. 5, which is sought to be quashed by this petition. It may be added here that case FIR No. 42 dated 1821987 under Sections 326, 324, 323 and 34 of the Indian Penal Code was registered in connection with an occurrence between the parties on account of their rival claims for possession of the land in dispute. Proceedings udder Section 107 of the Code are also pending between them.

The contention of learned counsel for the petitioner is that for passing an order under Section 146 (1) of the Code an order under section 145 (1) was a condition precedent. No such order was in fact passed. In reply to the above contention Shri G. S. Bawa, learned counsel for the respondents submitted that the petitioner and his brother appeared before the Executive Magistrate as far back as 161957. They had been taking part in the proceedings and had actually adduced their evidence as well. It was also argued that the fact that both the parties had put forward their statement of claims and had adduced evidence before the Executive Magistrate indicated that the requisite order under section 145 (1) of the Code must have been passed. In the alternative, it was argued that the order dated 451989 Annexure P. 5 can be taken to be a composite order both under Section 145 (1) as well as Section 146 (1) of the Code. In support of the first part of the contention reliance has been placed on Mulakh Raj v. State of Haryana and another, 1978 CLR (P&H) 179. It was held therein that failure to pass an order in accordance with Section 146 (1) of the Code was an irregularity which was curable under Section 465 of the Criminal Procedure Code, 1973 unless it was shown that nonpassing of the order had caused prejudice to the party concerned or had occasioned failure of justice. The substance of the matter is that what gives jurisdiction to the Magistrate is the existence of facts. It is not the form of the order which is material. There can be no doubt that the parties were called upon to state their respective cases and to adduce evidence in support thereof. The parties admittedly put forward their statement of claims and have been leading evidence in the proceedings. In the absence of prejudice, therefore, the nonpassing of the order under Section 145 (1) cannot be fatal to the passing of the impugned order. It was not disputed by the learned counsel that a composite order can be passed. In fact it was so held in Gurmel Singh and others v. SubDivisional Magistrate, Phul and others, 1990(1) Recent Criminal Reports 238. The first contention of Shri S. S. Sidhu, learned counsel for the petitioner is thus, without merit.

It was next argued that there was no emergency at least made out from the impugned order which justified the appointment of Receiver. This contention is equally untenable. The order Annexure P. 5 shows that after inspection of the spot the learned Magistrate was satisfied that there was apprehension of breach of peace between the parties. There had been criminal cases between them and, accordingly, he ordered attachment of the land and appointment of Receiver. The facts narrated in the beginning of this order show that apart from the fact that both the parties had approached the civil Court and two cases instituted by both the parties are still pending in the civil Court, there had been a criminal case besides proceedings under Sections 107/151 of the Code between the parties. In other words, the dispute with regard to possession was very much live and in the facts and circumstances of the case the proceedings under Section 145 of the Code appear to be quite justified.

Lastly it was argued that the civil Court being seized of the matter it was an abuse of the process of Court that the respondents should have approached the Executive Magistrate for initiating proceedings under Sec. 145 of the Code. Reliance was placed on Ram Sumer Puri Mahant v. The State of Uttar Pradesh and others, 1985(1) Recent Criminal Reports 278 (SC). The authority is clearly distinguishable from the facts of the present case. There the civil Court had adjudicated with regard to possession as well as title of the land in dispute in favour of one party against the other. It was observed by their Lordships that the decree of the civil Court is binding on the criminal Court in a matter of the present nature. It was, therefore, felt to be an abuse of the process of Court to invoke the jurisdiction of the criminal Court in the facts and circumstances of that case. It was in the peculiar facts of that case that it was held that parallel proceedings should not continue and order of the learned Magistrate was quashed.

Coming back to the facts of the case in hand, no doubt the petitioner secured an adinterim injunction in his favour on 25101986, the same stands substantially toned down in view of the agreed order passed in civil suit No. 701 of 1986 filed by the respondents in which with the consent of the parties it was directed by the Court that the parties shall maintain statusquo with regard to possession on 6111987. In other words, there is no order of the civil Court in force which may have taken a final view with regard to one party being in possession or the other. Even in the context of an application for temporary injunction with the background of criminal case and proceedings under Section 107 of the Code several civil suits between the parties and the satisfaction reached by the learned Executive Magistrate after inspecting the spot in the presence of the parties it cannot be said that the passing of the impugned order was an abuse of the process of the Court. Accordingly, for these reasons, the petition for quashing the order is dismissed.