Mahant Kesar Dass vs Gurdev Singh alias Gurdev Dass and others

Swatanter Kumar, J.

The ambit and scope of Section 146 of the Code of Criminal Procedure is the basic question that falls for consideration in this petition.

The facts giving rise to three questions are that the learned Additional Sessions Judge, Sangrur, while disposing of the revision petition vide his order dated 21st February, 1995 appointed the Receiver to protect the property in dispute till the question pending before the Civil Court was decided. There was a Dera of Udaseen in Village Kanganwal, Tehsil Malerkotla, District Sangrur, which was managed by Mahant Uttam Dass as Mahant of the Dera. The property of the Dera was also situated at Villages Mithewal, Dehleez Khurd, Manakwal and other villages. According to the petitioners Mahant Uttam Dass was looking after and managing the property through Joginder Dass who was in possession of the land and cultivating the same. The entries to this effect were made in the Khasra Girdawaris. During the life time of Mahant Uttam Dass, he had appointed his Chela Mahant Kesar Dass as his successor and nominated him as Mahant of the Dera which was known to the public at large. Mahant Uttam Dass is stated to have executed a registered Will dated 6th December 1991 in favour of Mahant Kesar Dass nominating him as Mahant of the Dera.

Mahant Uttam Dass died on 9th December 1991 and in his place according to his Will, Mahant Kesar Dass was nominated as Mahant of the Dera. The mutation of the land in question was effected in the name of Mahant Kesar Dass on 16th June 1992 while entries in the khasra girdawaris continued to be in the name of Joginder Dass since 1987. The villagers constituted a committee consisting of seven members for management of the property of the Dera. This committee had appointed Gurdev Dass, Chela of Uttam Dass, as Mahant during his life time. The claim of other party is that Kesar Dass was only relative of Uttam Dass, his nephew and properly appointed Mahant was Gurdev Dass. On these facts, Gurdev Dass claims himself to be in possession of the land belonging to the Dera while Kesar Dass and Joginder Dass claim their possession and ownership of the land of the Dera on the facts stated supra and entries in the khasra girdwaries.

Because of the clash between the parties, there was apprehension of breach of peace and commission of crime, the report was received from the police. On receipt of the report of the police, the SubDivisional Magistrate, Malerkotla, while relying upon the said report, issued notice under Section 145 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') to both the parties. Thereupon, the parties appeared and raised their respective claims before the SubDivisional Magistrate, Malerkotla, who, vide his order dated 25th April 1993, found that though the khasra girdawaries and other revenue record was in the name of Joginder Dass, in fact, the possession on the plot was that of Gurdev Dass and, consequently, directed and declared the possession of Gurdev Dass, Chela of Uttam Dass, over the land. Against this order, Kesar Dass and Joginder Dass filed a revision before the Additional Sessions Judge. The learned Sessions Judge on the basis of the records did not agree with the findings that possession of Gurdev Dass was a legal possession 60 days before the initiation of the proceedings under Section 145 of the Code. The land admittedly belonged to the Mahant Uttam Dass, Head of Dera Kanganwal. The dispute seriously arose between the parties with regard to the fact who is the Chela of Mahant Uttam Dass, and, consequently, a successor, including to the lands in question. This question of succession to the Gaddi was pending before the Civil Courts and other ancillary disputes with regard to the lease of the land being granted in favour of one of the parties was also sub judice before the Civil Courts. The learned Sessions Judge while rejecting the claim of both the parties held that none of the parties was able to establish lawful possession to the land in question and the land belonged to a charitable Dera. He further held that the land was essentially for the benefit of the estate of the Dera and all rights of the parties will have to be determined by a Civil Court. Accordingly, the learned Additional Sessions Judge, vide his order dated 21st February 1995, directed that the Tehsildar, Malerkotla, Sarpanch of Village Kanganwal and Sarpanch of Village Mithewal shall manage the property/land in dispute and further directed them to give the land on lease every year to the highest bidder and to deposit the lease money in the Government treasury till the decision of the civil suit pending between the parties and also to the effect that the persons who will be held to be Mahant by the Court, will receive the lease money ultimately. The suit, being Suit No. 286 of 8.5.1992 was filed by one Dalip Gir and others against Hardial Singh and others which was decreed uncontested, but to this suit, Mahant Gurdev Dass was not a party. Another suit, being Suit No. 545 of 1992 filed by Gurdev Dass against Kesar Dass is pending. That suit was filed on 4th August 1992 while Calendara report sent by the police is dated 28th March 1993, on the basis of which the orders dated 25th April 1993 and 21st February 1995 were passed. It is this order of the learned Additional Sessions Judge dated 21st February 1995, which has been assailed in the present petition.

In view of the above facts, the submission of learned counsel for the petitioner is that the Additional Sessions Judge had no jurisdiction to pass the impugned order because a civil suit was pending between the parties, where the matters in issue were the same. Another contention of the learned counsel for the petitioner is that an order under Section 146 of the Code of Criminal Procedure can be passed and is effective only during the pendency of the proceedings under Section 145 of the Code of Criminal Procedure. Thus, according to the learned counsel, the learned Additional Sessions Judge has passed an order which suffers from lack of inherent jurisdiction. As a corollary to the above two submissions the counsel for the petitioner submitted that there is likelihood of the conflicting orders being passed by the two courts on identical matters of issues which should not be permitted.

The submission of the learned counsel for the petitioner is that the present revision is not maintainable because no second revision can be preferred by a party before the High Court. There is no doubt that a second revision is specifically barred under the provisions of Section 399(3) of the Code of Criminal Procedure and it is a well settled principle of law that the courts would not exercise powers in such cases to permit a petition under Section 482 of the Code.

In the present case, the revision against the order dated 25th April 1993, which was passed by the learned SubDivisional Magistrate, was preferred by the aggrieved party before the learned Additional Sessions Judge, who disposed of the said revision vide order dated 21st February 1995. As such no second revision would be permissible in the normal circumstances against the said order. The Supreme Court in the case of Dharampal and others v. Smt. Ramshri, AIR 1993 SC 1361, held :

"The question that falls for our consideration is whether the High Court could have utilised the powers under Section 482 of the Code and entertained a second revisionapplication at the instance of the 1st respondent.

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It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside".

Learned counsel for the petitioner has relied upon a very recent judgment of the Supreme Court in the case Ganesh Naryan Hegde v. S. Bangarappa and others, 1995(2) Recent CR 373 . In this case, the Hon''ble Supreme Court while diluting the principles stated in the case of Dharampal supra held as under :

"A Second Revision does not lie under the Code, and though an application under Section 482 of the Code of Criminal Procedure is not barred, the High Court cannot sit and act as the second Revision Court while exercising the powers under Section 482. This provision can be invoked only where there is an abuse of process of Court or otherwise to secure the ends of justice. Learned counsel complained that the learned Single Judge has examined the matter as if he were an appellate court and quashed the charge on that approach and that he has exceeded his jurisdiction in doing so and in interfering at an interlocutory stage".

There is also no doubt that powers of the High Court under Article 226/227 of the Constitution cannot be controlled by the provisions of Section 146 of the Code. The High Court has the power to pass appropriate orders to protect the right of the parties and/or to secure the ends of justice but this power, again, has to be exercised in accordance with the principles of law settled by the Supreme Court in its various pronouncements: refer Chandrasekhar Singh and others v. Siya Ram Singh, AIR 1979 SC 1.

From the above judgments pronounced by the Supreme Court, it is clear that in exceptional and rare cases the High Court can interfere in a petition under Section 482 of the Code of Criminal Procedure. The real test which has been laid down by the Supreme Court for permitting such interference is to prevent abuse of the process of court or otherwise to secure the ends of justice.

In the present case, to my mind, none of these condition is attracted. The learned Additional Sessions Judge, after going into the matter in detail, has come to the conclusion that in the facts and circumstances it will be appropriate to appoint a Receiver and to protect the property, which is the property of the Dera and is for the benefit of a larger section rather than an individualistic interest, and appointed the Tehsildar Malerkotla and Sarpanch of the two villages as Joint Receivers. The learned Additional Sessions Judge further made a direction with regard to deposit of the lease money in the Government treasury, and the parties were given liberty to withdraw the same after proper adjudication by the court of competent jurisdiction. The learned SubDivisional Magistrate while passing the order has not recorded anywhere that there was sufficient evidence which could rebut the presumptions which stand in favour of revenue records. It is a settled principle of law that the entries in the revenue record have a presumption in their favour. Of course, such a presumption is rebuttable. Therefore, the learned Additional Sessions Judge has rightly disturbed the finding of the Sub Divisional Magistrate with regard to possession of the parties over the land in question. The view taken by the Additional Sessions Judge cannot be said to be suffering from any jurisdictional error and the order also does not suffer from any error which will tantamount to abuse of process of Court or defeat the ends of justice in any way, in the facts and circumstances of the present case. For these reasons, the judgment relied upon by the learned counsel for the petitioners is not of much help and consequently I hold that present petition is not maintainable.

Sections 145 and 146 of the Code frame a scheme in itself. The object of Section 145 is to prevent a breach of peace or maintenance of law and order, till the rights of the parties are determined by a court of competent jurisdiction. The Magistrate while exercising powers under Section 145 of the Code has a very restricted jurisdiction. The language used by the legislation while enacting Section 145 of the Code indicates the limited scope of authority and determination, both to be exercised by such a Magistrate. The Magistrate without reference to the merits of the case and if it is possible for him to determine, then alone would determine the lawful possession of a party in consonance with the provisions of the Code. This language of Section 145(4) of the Code primarily restricts and limits the jurisdiction to be exercised by the Magistrate. While exercising powers under this Section, the Magistrate cannot give finality to the rights of the party and grants merely a temporary relief with the principal object of preventing breach of the peace and to maintain law and order in the area under the jurisdiction of that Magistrate. Once on the basis of a Calendara the Magistrate is satisfied that on the date of the complaint or Calendara there was an imminent threat of breach of the peace and in the event of his coming to the conclusion that no definite finding can be given in favour of a party, the provisions of Section 146 of the Code come into play. In the event of an indefinite answer by the Magistrate, the need for attaching a property and/or appointing a Receiver becomes necessary. Thus, the provisions of Sections 145 and 146 are complimentary to each other and are not limited by each other. Section 146 of the Code comes to aid where after passing a final order under Section 145 of the Code no definite finding can be given in favour of a party or there are such other compelling circumstances which necessitate the appointment of a Receiver or attachment of the property. Wherever a Magistrate finds the threat to be imminent, it is not obligatory upon the Magistrate to wait for determination of rights of the parties in regard to the disputed property by a Civil Court but can pass appropriate orders though such orders would obviously be subject to the determination of rights by a court of competent jurisdiction: refer Mathura Lal v. Bhanwar Lal and another, AIR 1980 SC 242. The Supreme Court while enunciating the above principle also observed that Sections 145 and 146 of the Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land etc. Section 146 of the Code cannot be separated from Section 145. It must be read in context of Section 145. Contextual construction must surely prevail over isolationist construction. Thus, these two Sections aid each other to achieve the object of the provisions of the Code, and the submission of the learned counsel that Section 146 is only a provision applicable during the pendency of a petition under Section 145 of the Code is not tenable. The conclusion of proceedings under Section 145 is a kind of a condition precedent to the passing of an order under Section 146, and an order under Sections 145/146 can certainly be passed by the Magistrate directing the parties to maintain a particular situation till their rights are determined by the Court of competent civil jurisdiction.

The learned counsel for the petitioner has also relied upon Swiam Sunder and others v. The State of Rajasthan and others, 1986(1) All India Criminal LR 311, and Sharafat Ali Khan and another v. Abdul Latif and others, 1987(1) All India Criminal LR 81, while the counsel for the respondent has relied upon Karnail Singh v. The State of Punjab, 1995(1) Recent CR 659 . The basic principle in this regard has been settled by the Supreme Court in the case of Thunamal alias Devandas v. The State of Madhya Pradesh and others, AIR 1988 SC 1973, by stating that the findings of a civil court are binding upon a court exercising criminal jurisdiction. Where civil suits are pending normally the court of the Magistrate should not permit continuation of the proceedings under Sections 145 and 146 of the Code and pass orders which may be in conflict with the orders passed ultimately by the civil court, but in a given situation and keeping in view the imminent threat to the breach of the peace or an emergency the Magistrate would be well within his jurisdiction to permit continuation of proceedings and pass the order with a limited purpose of meeting the exigencies of the situation and till rights are determined by a civil court of competent jurisdiction or any orders are passed by such civil court. All the authorities aforestated fully fortify this consistent view taken by all courts. In the present case nothing else has been done by the learned Sessions Judge except that he has permitted the property to be protected through Joint Receivers of responsibility and status, that too till the time appropriate orders are passed by the civil courts where the matters are substantially in issue in the present proceedings are pending for determination. Admittedly, the suits have been pending for a considerable period, and none of the parties to these proceedings has obtained any injunction order which could be stated to be in conflict with the orders passed by the learned Sessions Judge.

Since the matter was argued at length, I have opted to deal with all the contentions which have been raised before this court in spite of the fact that I have held that this petition is even not maintainable. For the reasons aforesaid, this petition is dismissed. However, there shall be no order as to costs.