Madan Lal vs Krishan Lal

I.S. Tiwana, J.

The petitioners seek the quash of the proceeding launched against them under Section 145, Criminal Procedure Code, as a result of police report dated September 22, 1986 (Annexure P.2) to the effect that there was apprehension of breach of peace with regard to the possession of the agricultural land specified therein. As a result of this the Sub Divisional Magistrate, Zira, passed the following order (Annexure P.3) on the same day, i.e. September 22, 1986 :

"Challan under Section 145 Cr.P.C. presented today by the police of P.S. Mallawala. Considered and perused. From the persual of the present police calendera it reveals that there is apprehension of breach of peace between the respondents of both the parties s both parties claimed that they are in cultivating possession. Investigating Officer did not appear. However, from the perusal of present police challan prima facie is mae out for further proceedings. Prescribed notice be issued to the respondents of both the parties for 25.9.1986 with the direction to prove their claims with regard to the possession over the disputed land on 25.9.1986."

In response to the above notice served on the petitioners as also respondents the petitioners filed their statement of claim along with a copy of the plaint (Annexure P.1) through which the respondents had sought the possession of this very property through the Civil Court. The meaningful paragraph occurring in this plaint is No. 16 which reads as under :

"That the cause of action has arisen to the plaintiff on 1.2.1983 October, 1985 and was completed in the last week when the defendants No. 1 to 4 refused to hand over the possession of suit and threatened to sell the suit land situated at village Ghugatewala The. and Distt. Ferozepur, within territorial jurisdiction of the civil Court at Ferozepur."

Besides this the parties also produced some more material to establish their respective possession on the suit land. Instead of disposing of the cse either on merits or to drop the proceedings in the light of the above noted admission of the respondents that the suit property was in physical possession of the petitioners, the learned Sub Divisional Magistrate passed in order under Section 146, Cr.P.C. attaching the suit property and appointing the Naib Tehsildar, Zira, as a receiver. Petitioners impugn these two orders i.e, the one continuing the proceedings under Section 145, Cr.P.C. and the other attaching the suit property during the pendency of those proceedings. Having heard the learned Counsel for the parties at some length I find that the impugned orders, Annexures P.5 and P.3 cannot possibly be sustained.

It has repeatedly been laid down that parallel proceedings with regard to the same property, i.e., before the civil court and before the Sub Division Magistrate under Section 145, Cr.P.C., cannot possibly go on. This is more so when in the civil proceedings which were initiated prior to the initiation of the proceedings under Section 145, Cr.P.C., one of the parties to these proceedings has clearly admitted the physical possession of the opposite party on the suit land. I have already opined in Bhawan Pal v. Prem Kumar Jain and others, 1982(1) C.L.R. 121, that in such a situation a duty is cast on the Magistrate under Section 145, Cr.P.C., to see that the parties who have a civil dispute pending, do not take the law into their own hands nd commit a breach of the peace. If the parties have already gone to the civil Court, the Magistrate has no longer any duty to perform except to proceed under Section 107 Cr.P.C. I find no ground to deviate from this expression of opinion made by me in that case.

In the light of the observations made above, I allow this petition and while quashing the proceedings under Section 145, Cr.P.C., as also the attachment order passed under Section 146, Cr.P.C., direct that the Sub Divisional Magistrate may proceed under Section 107, Cr.P.C., if he so likes. The learned Counsel for the petitioners tells me that as a matter of fact the Magistrate has already adopted this course and the proceedings under Section 107, Cr.P.C., are pending between the parties. If that be so, then the Magistrate need not take any further action in the light of this order of mine.