Manohar Lal and ors. vs Sub Divisional Magistrate and ors.

H. S. Brar, J.

This is a petition under Section 482 of the Code of Criminal Procedure for quashing the order, dated February 20, 1991, passed by Sub Divisional Magistrate, Bhatinda, respondent No. 1, under Section 145, Code of Criminal Procedure.

The brief facts as stated in the petition are that petitioner No. 1 Manohar Lal Deep Chand father of respondent No. 2, Madan Lal and respondent No. 3 Mela Ram were real brothers and were owners in possession of ancestral land measuring 213 bighas and 15 biswas situated within the revenue limits of Village Bhatinda Patti Jhuti. The land comprised in Khasra Nos. 5410/3813 (1916), 4261 (117), 4262 (819), 5414/4263 (204261 min. (0 19), 4242 min (21), 5518/4261 (18) and 4259 (15 00) fell to the share of petitioner No. 1 who is father of petitioners 2 and 3 Ramesh Chand and Dharam. Vir and husband of petitioner No. 4 Ram Piari. It is then stated in the petition that the land described above has been in exclusive possession of the petitioners eversince the family settlement took place and they are running a brick kiln since long on the said land. Deep Chand father or respondent No. 2 Madan Lal with mala fide intention and in order to obtain unlawful gain beyond his share of the ancestral joint family property measuring 213 bighas and 15 biswas instituted Civil Suit No. 872, dated December 1, 1987 for declaration and partition in respect or the land in question which had fallen to the share of the petitioners and the said suit is still pending in the Court of Shri S. C. Arora, Subordinate Judge First Class, Bhatinda, and is being contested by the legal representatives of Deep Chand, father of respondent No. 2 after his demise. A certified copy of the plaint of the said suit for partition is annexed as Annexure P1 with this petition The petitioners fearing that respondent No. 2 Madan Lal son of Deep Chand might dispossess them from the aforesaid land in which they were in exclusive possession forcibly, instituted a Civil Suit for permanent injunction restraining respondent No. 2 from dispossessing the petitioners illegally, forcibly and from interfering in their peaceful possession over the land in question, in the Court of Additional Senior Subordinate Judge, Bhatinda. The learned Additional Senior Subordinate Judge, Bhatinda, on May 8, 1990 passed an interim order restraining respondent No. 2 alongwith others from dispossessing the petitioners from the above mentioned land. A certified copy of the injunction order, dated May 8, 1990 passed by the learned Additional Senior Subordinate Judge, Bhathinda, is annexed as Annexure P2 with this petition. This order is still in operation.

Respondent No. 2 filed an application before the SubDivisional Magistrate, Bhatinda, on October 29, 1990 stating therein that there was a, dispute as to the partition of the property and there was an apprehension of breach of peace and, therefore, the property may be attached under Section 145 of the Code of Criminal Procedure. A certified copy of the said appreciation is attached with the petition as Annexure P3.

The petitioners appeared as respondents on receiving notice of the said application filed by respondent No. 2 under Section 145 of the Code of Criminal Procedure and apprised the learned Sub Divisional Magistrate of all the facts, as stated above. Respondent No. 1 did not seek any report from the police to the effect whether there was any apprehension of breach of peace on account of dispute of possession in respect of the land in question and passed an order, dated February 20, 1991 attaching the land in question under Section 145 of the Code of Criminal Procedure. A certified copy of the order, dated February 20, 1991 is annexed as Annexure P4 with this petition.

The petitioners filed Miscellaneous Application No. 80414 of 1991 in the main petition for placing additional facts on record alongwith Annexure P. 5. The Miscellaneous Application was allowed and Annexure P 5 was ordered to be placed on record vide order of this Court, dated July 12, 1991. Annexure P5 are the proceedings for possession under Section 145 of the Code of Criminal Procedure by the order of Sub Divisional Magistrate, Bhatinda, regarding the disputed land. From Annexure P 5 the petitioners want to show that they were in possession of the land which was taken from them by the TehsildarcumReceiver, Bhatinda, on April 19, 1991.

It has, thus, been urged by the petitioners that the order of the Sub Divisional Magistrate, Bhatinda, dated February 20, 1991 is liable to be quashed on the following grounds :

i) That the civil court was already seized of the matter with regard to the possession of the land in question and had restrained respondent No. 2 from dispossessing the petitioners from the said land. In these circumstances, the Sub Divisional Magistrate had no jurisdiction or authority to take action under Section 145, Code of Criminal Procedure;

ii) that respondent No. 2 had filed a suit, for declaration against the petitioners to the effect that he was owner of 2/9 share of the land in question and was entitled to get the same petitioned. In the plaint filed in the suit which is annexed as Annexure P1 with this petition, he claimed himself to be a cosharer with the petitioners. Thus, in this situation, proceedings under Section 145, Code of Criminal Procedure, could not be resorted to;

iii) that the impugned order is liable to be quashed on the ground that it was passed in most causal and mechanical manner without application of mind and an order attaching property could be passed only under Section 146 of the Code of Criminal Procedure if the conditions mentioned therein so warranted. Moreover, in the present case, respondent No. 1 passed an order attaching the property in question under Section 145 itself of the Code; that the Sub Divisional Magistraterespondent No. 1 had nowhere stated in the impugned order that the case was of emergent nature, nor did he say that none of the parties was then in possession of the land in question and he also did not state in his order that he was unable to satisfy himself as to which of the parties was in possession of the subject of the dispute;

v) that as proceedings for prevention of breach of peace had already been initiated there was no justification for resorting to proceedings under Section 145, Code of Criminal Procedure, by attaching the land in dispute, and

vi) that there was no material before respondentNo. 1 on the basis of which he could form an opinion that there was an apprehension of breach of peace.

The learned counsel for the petitioners cited Bhaman Pal v. Prem Kumar Jain and others, 198(1) CLR 121, Ram Sumer Puri Mahant v. State of U.P. and others, 1985(2) Recent Criminal Reports 43 and Gurdial Singh and another v. The State of Punjab and others, 1988(2) CLR 454, to substantiate his arguments.

Reply has been filed by respondent No. 2 rebutting the averments made by the petitioners.

Reply has also been filed by respondent No. 1 Sub Divisional Magistrate, Bhatinda, mainly clarifying that the land was attached under Section 146, Code of Criminal Procedure, but inadvertently Section 145 was mentioned instead of Section 146, of the Code.

The learned counsel for the respondents, have argued that the order of the Sub Divisional Magistrate, Bhatinda, dated February 23, 1991 is legal and does not suffer from any infirmity. According to them, even though the civil proceedings regarding the land in question are pending, the Sub Divisional Magistrate is empowered to take action under Sections 145 and 146 of the Code of Criminal Procedure in this case particularly when he finds that there is apprehension of breach of peace. They have cited Ram Pal v. Harish Chand and another, 1987(2) Recent Criminal Reports 65 : 1987(2) CLR 133 and Kuldip Singh Sahni v. The State of Punjab and others, 1988(1) Recent Criminal Reports 525 : 1988(1) CLR 392 in order to support their arguments. It is further stated by them that the order has been passed by the Sub Divisional Magistrate after due application of mind.

After hearing the learned counsel for the parties and going through the record of the case with their assistance, the admitted facts are that the petitioners had filed a civil suit for permanent injunction restraining the defendants who included respondent No. 2 in this petition, from dispossessing them illegally or forcibly and from interfering with their peaceful possession over the land measuring 70 bighas and 9 biswas comprising Khasra Nos. 5410/3813 (1916), 4261 (117), 4262 (819). 5414/4263 (2018), 4261 min. (019). 4242 min. (21) 5518/4260 (I8) and 4259 (15 00) situated in Bhatinda as per jamabandi for the year 198283 as the defendants (respondent No. 2 in this petition included) had no concern with the same, in the Court of Additional Senior Subordinate Judge, Bhatinda. This is the same land which finds mention in Para No. 1 of this petition. It is again undisputed that this is the same very land which is the subject matter in proceedings under Section 145 of the Code of Criminal Procedure initiated against the petitioners and this the same very land which has been ordered to be attached by the SubDivisional Magistrate, Bhatinda, vide his order, dated February 20, 1991, which is impugned in this petition. It is again an admitted fact on the file that the petitioners in their civil suit for permanent injunction filed in the Court of Additional Senior Subordinate Judge, Bhatinda, had got an order of injunction issued from that very Court regarding the same land restraining respondent Madan Lal from dispossessing the petitioners from the land. It is also an admitted fact that this injunction order is still in force. I do not find from the reply of respondent No. 2 that the respondents were ever in the possession of the land which is the subjectmatter of dispute between the parties before the SubDivisional Magistrate, Bhatinda in the proceedings under S. 145 of the Code of Criminal Procedure. The suit filed by Deep Chand, father of, respondent No. 2, copy of which is annexed as Annexure P1 with this petition, is also a suit for simple declaration to the effect that he is the owner of some of the land in dispute in this case and for a prayer for getting the land petitioned. In view of these admitted facts which are borne out from the material placed on record of this case, it is apparent that the land in dispute before the civil court is the same which was the subjectmatter of attachment by the Sub Divisional Magistrate, Bhatinda, under Section 145 of the Code of Criminal Procedure. The subjectmatter in dispute before the Civil Court is identical with the one pending before the Sub Divisional Magistrate, Bhatinda. These proceedings before the Sub Divisional Magistrate, Bhatinda are clearly misconceived in the face of the order of Additional Senior Subordinate Judge, Bhatinda, dated May 8, 1990, Copy Annexure P 2 with this petition, restraining respondent No. 2 from interfering with the possession of the petitioners over the land in dispute. Even if it be it taken that the order of the civil Court, dated May 8, 1990 which was exparte, was erroneous, it is not for the criminal Court in proceedings under Section 146 of the Code of Criminal Procedure, to hold this to be so. The remedy in such a situation clearly lies in approaching the Civil Court, to modify its own order. I am told at the bar that even uptil now the civil Court has not been approached to get this injunction order reversed which is still in force. Till and until this is done, the criminal Court must abide by the order of the civil Court. It is again borne out from the record that the temporary injunction referred to above was still in force, when the impugned order was passed by the SubDivisional Magistrate, Bhatinda. It is one of the mandatory requirements of Sections 145 and 146 of the Code of Criminal Procedure that the Authority who passed the order shall mention the grounds. Mere quoting the incidents is not sufficient. He must apply his mind to the material made available and then arrive at a conclusion as to whether any ground/s has/have been made out and action as requested should be initiated, or not. It is nowhere borne out from the impugned order as to which were the grounds, which compelled him to arrive at the conclusion that there was breach of peace in respect of the dispute relating to the property. When such grounds are absent or nonexisting then it has to be held that the order in question was the result of nonapplication of mind by the Sub Divisional Magistrate to the requirements of Sections 145 and 146 of the Code of Criminal Procedure, and the same will attract contravention of the principle laid down by various Courts. (1978 Cr. LJ NOC 2), 3 : (197)2 Kant. LJ 241 : 1978 Cri. LJ NOC 272 : (1978) 2 Kant. LJ 284 and Shankarlal v. Alhaz Khaja Abdul Hassan and anr., 1991 Cri. LJ 1556 may be referred to for facility of reference).

The authorities cited by the learned counsel for the respondents, that is, Ram Pal''s case (supra) 1987 (2) Recent Criminal Reports 65 and Kuldip Singh Sahni''s case (supra) 1988(1) Recent Criminal Reports 525, are not applicable to the facts of this case, as in those cases the factual position was different and the civil Court had not restrained one party from dispossessing the other. Only status quo was ordered to be maintained therein.

It is pertinent to note here that when the civil Court is already seized of the same disputed land and an injunction has been granted by it to the petitioners restraining respondent No. 2 from interfering with their possession, the criminal Court is bound to abide by the order of the civil Court and the proceedings under Section 145 of the Code of Criminal Procedure are clearly unwarranted. I am fortified in the respect by the observations in Gurdial Singh''s case (supra), Major Singh v. Sukhdev Singh, 1991(2) RCR 531 and Babu Singh v. State of Punjab and anr., 1991(3) RCR 345. The irresistible conclusion is that the order which according to the return filed by the Sub Divisional Magistrate, Bhatinda, was passed under Section 146 of the Code of Criminal Procedure, was an abuse of process of the Court. In view of my findings given above, I need not dilate upon other grounds.

The petition is, thus, accepted and the impugned order, dated February 20, 1991, passed by Sub Divisional Magistrate, Bhatinda, is hereby quashed.