Mohinder Singh vs State of Punjab

S.S. Grewal, J.

This petition under Section 482 of the Code of Criminal Procedure relates to quashment of order dated 29.7.1988 (Annexure P.6) passed by the Additional Sessions Judge, Faridkot.

In brief, the facts relevant for the disposal of this case are, that Mohinder Singh, one of the petitioners, filed civil suit for declaration and for grant of permanent injunction, against respondent No. 2 and some others, for restraining them from interfering in his peaceful possession of land in dispute, measuring 80 kanals 19 marlas. Temporary injunction was granted in the said case on 21st November, 1986, directing maintenance of status quo in respect of possession till further orders. Present respondents also filed separate suit in respect of same land on 17.2.1987, which was subsequently dismissed as withdrawn on 30th August, 1988, vide order Annexure P.2. During the pendency of the said suit, proceedings under Section 145, Cr.P.C., were initiated by the Police before the Sub Divisional Magistrate, Faridkot, who, ordered attachment of the suit land, vide order dated 28.5.1987 (Annexure P.4), and vide order of even date (Annexure P.5) appointed Naib Tehsildar, Faridkot as Receiver of the propertyindispute under Section 146 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code'').

On the revision filed by respondent Nos. 2 to 5 Additional Sessions Judge, Faridkot, vide impugned order dated 29.7.1988 (copy whereof is Annexure P.6) quashed the orders of attachment and appointment of Receiver. Proceedings under Section 145 were, however, kept alive. It was further held that it was open to either party to move the Civil Court under the Civil Procedure for appropriate interim orders, if so advised, in the event of disputed relating to the possession of the landinquestion. It was also held that the Sub Divisional Magistrate, Faridkot, would decide the question as to whether there was apprehension of breach of peace, and if, so, resort may be had to the provisions of Section 107 of the Code.

Aggrieved by the order passed by the learned Additional Sessions Judge, the present petitioners have filed this petition.

On behalf of the petitioners it was vehemently argued that the order of attachment of the immovable property, passed under Section 146(1) of the Code was an interlocutory order within the meaning of Section 397(2) of the Code, and, a revision against such an order was completely barred. Reliance in this respect as placed on a Division Bench authority of this Court, reported as Kartar Singh and others v. Smt. Pritam Kaur and another, 1985(1) C.L.R. 338, wherein it was observed as under :

"The attachment of the property and the appointment of a receiver therefor does not in way determine the title of the parties thereto. Consequently, the ownership of the property under attachment is not even put remotely in issue. It seems to be elementary that in fact in the whole gamut of proceedings under Sections 145 and 146 of the Code, no question of title to the property in dispute arises betwixt the parties. At the highest, it affects temporarily the right to possession and that too by not transferring it from one party to another, but merely taking it into custody legis, which again as noticed, may be withdrawn at any time and thus reverting possession to status quo ante. The factors of title and ownership being altogether out of that reasons of dispute before the Executive Magistrate, and, the possession and attachment also being of a temporary and transient in nature, are other attributes militating wholly against the concept of such an order being labelled as either final, or, quasi final in nature."

It was also observed that an order of attachment of an immovable property under Section 146(1) of the Code is inter locutory in nature within the meaning of Section 397(2) of the Code and consequently, no revision against the same is maintainable.

The principle enunciated by the aforesaid authority was followed by brother Bhalla, J. in Gurdeep Singh v. Tehal Singh, 1987(2) Recent Criminal Reports 443 : 1988(1) C.L.R. 701 .

On behalf of the respondents, reliance has rightly been placed on the authoritative pronouncement of their Lordships of the Supreme Court, in case Ram Sumer Puri Mahant v. State of U.P. and others, 1985(2) Recent Criminal Reports 43 (SC) : 1985(1) C.L.R. 521 , wherein, it was held as under :

"..............When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the Criminal Court in a matter like the one before us. Counsel for respondents 25 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil Court and parties are in a position to approach the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties, nor, should public time be allowed to be wasted over meaningless litigation."

The authority in Ram Sumar Puri Mahant''s case (supra) is fully applicable to the facts of the case in hand inasmuch as proceeding under Section 145 of the Code were initiated, while civil suit between the parties, regarding the same subjectmatter, was already pending. It is pertinent to note that the city Court had already directed maintenance of status quo concerning possession of the suit land. In these circumstances it hardly seems reasonable that the Criminal Court in preliminary proceedings could be permitted to decided the same question or, to pass orders concerning attachment of the property, and, appointment of receiver in respect thereof, when, such functions can be more conveniently, and, effectively performed by the Civil Court.

It is permanent to note that the authority in Ram Sumer Puri Mahant''s case (supra) was not noticed in the two authorities relied upon by the petitioners, i.e. Kartar Singh and others v. Smt. Pritam Kaur and another, and Gurdeep Singh v. Tehal Singh, referred to above. Both these authorities, thus, cannot be relied upon in view of the authoritative pronouncement of their Lordships of the Supreme Court in Ram Sumer Puri Mahant v. State of U.P. and others case (supra).

It is true that Section 397(2) of the Code would operate as a bar to the exercise of revisional jurisdiction by the Additional Sessions Judge in respect of interlocutory orders concerning attachment of land in dispute, and, appointment of receiver under Section 146(1) of the Code. However, in the absence of any revisional power to set aside, or, quash the interlocutory orders (Annexures P4 and P5), passed by the SubDivisional Magistrate, during the pendency of the Civil Suit there would be no legal bar for this Court to exercise its inherent jurisdiction under Section 482 of the Code, so as to rectify the defect in the order of the SubDivisional Magistrate by modifying the same in conformity with the principle of law enunciated in Ram Sumer Puri Mahant''s case (supra), and, in the interest of justice, to stop the abuse of the process of the Court. I am fortified in my view by the authority of their Lordships of the Supreme Court, in case reported as Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983(1) Recent Criminal Reports 73 : AIR 1983 Supreme Court 67 .

For the foregoing reasons, the impugned order passed by the Additional Sessions Judge cannot be said to be illegal, or, unjust. Rather, the orders of attachment, and, appointment of Receiver (Annexure P4 and P5), passed by the SubDivisional Magistrate, have rightly been set aside and quashed.

No interference in impugned order passed by the Additional Sessions Judge (Annexure P6) is called for. This petition is, accordingly, dismissed.