Mukhtiar Singh vs State of Punjab

R.L. Anand, J.

Mukhtiar Singh, Balbir Singh and Lakhbir Singh have filed the present petition under Section 482, Cr.P.C. for the quashment of Kalendra (police complaint) under Section 145 Cr.P.C., dated 18th April, 1997 (Annexure P1), and the order dated 22nd April, 1997, under Section 146, Cr.P.C., vide which the receiver was appointed for the land in dispute.

Let me examine the background of the facts. Annexure P3 indicates that on 29th November, 1996 Sarvshri Balbir Singh, Lakhbir Singh, Mukhtiar Singh i.e., the present petitioners, filed a suit to the effect that plaintiffs Nos. 1 and 2 are owners of 3/4 share of the land measuring 35 Kanals 8 Marlas, and plaintiff No. 3 is owner of share i.e. land measuring 11 Kanals 3 Marlas bearing Khata Khatoni Nos. 426/490, Rectangle and Killa Nos. 152/14, 15/2, 15/3, 16, 17/1, 25, 186/1, 187/5, situated at Patti, District Amritsar, according to the Jamabandi for the year 199394. In para No. 2 of the said plaint it has been alleged that Smt. Gurdip Kaur sold land measuring 23 Kanals 12 Marlas, i.e., share of land measuring 47 Kanal 3 Marlas in favour of plaintiff Nos. 1 and 2 for a sum of Rs. 2,16,500/ vide registered sale deed dated 22nd May, 1996 and the mutation was also sanctioned on the basis of the sale deed in the names of said plaintiffs. Then Balbir Singh son of Dara Singh, defendant No. 2, sold land measuring 11 Kanals 16 Marlas, i.e., share out of the land measuring 47 Kanals 3 Marlas in favour of plaintiff No. 3 Mukthiar Singh vide registered sale deed dated 8th October, 1996 for a sum of Rs. 1,06,500/. The possession of the suit land was also delivered by Balbir Singh son of Dara Singh to Mukthiar Singh, and mutation was also effected in respect thereto. Thereafter an exchange took place vide which Jaswant Singh son of Dara Singh exchanged land measuring 11 Kanals 16 Marlas, i.e., share of the land measuring 47 Kanals 4 Marlas, with plaintiffs Nos. 1 and 2 and the said plaintiffs gave land measuring 11 Kanals 17 Marlas to Jaswant Singh defendant and this exchange was oral and possession on the basis of oral exchange was delivered to each other, though mutation No. 13422 was effected. In this manner, plaintiffs Nos. 1 and 2 are the owners to the extent of 3/4 share on the basis of the sale deed and exchange deed and plaintff No. 3 is the owner to the extent of share out of the suit land and the defendants had no right, title or interest. The plaintiffs allege that they are being threatened by the defendants from their possession and in these circumstances it has become necessary on their part to file a suit for declaration and injunction.

Notice was given to the opposite party. The suit was contested by Smt. Gurdip Kaur, who stated that the plaintiffs were hand in glove with defendants Nos. 2 and 3, whereas she had strained relations with them and that these two defendants wanted to grab the land. She challenged the mutation proceedings. She stated that she never executed any sale deed in favour of the plaintiffs vide sale deed dated 15th May, 1996. According to Smt. Gurdip Kaur, Mukthiar Singh, brother of the plaintiffs, procured some general power of attorney from her by misleading her. Said Mukthiar Singh approached her with a request that he wanted to change the supply of their tubewell connection. On that representation he obtained her thumb impression. Smt. Gurdip Kaur denies that she ever executed any power of attorney in favour of Mukhtiar Singh; rather she has filed a complaint with S.S.P., Tarn Taran, against the plaintiffs and Mukhtiar Singh, clearly indicating that these persons wanted to grab her land. In short, Smt. Gurdip Kaur contested the claim of the plaintiffs of the suit. At one point of time the Civil Court granted the stay order in favour of the plaintiffs, but vide order dated 12th February, 1997 (Annexure P4) it was specifically held by the Civil Court :

"Therefore, in the facts and circumstances of the case, the affidavits cannot be given much weight at this stage. The documents on the file are clearly favouring the case of the plaintiffs. As the parties are yet to lead evidence, therefore, it will meet the ends of the justice if both the parties are directed to maintain status quo possession of land in suit till the disposal of the present case."

Later on the Kalendra was submitted under Section 145, Cr.P.C. (Annexure P1) in the Court of Executive Magistrate by the State through S.I. Devinder Singh, S.H.O., Police Station City, Patti against Smt. Gurdip Kaur, Party No. 1, and Mukhtiar Singh, Balbir Singh, Lakhbir Singh and Hari Singh, Party No. 2, and the specific case made out by the State is that there is a land in Patti of Gurdip Kaur, which she purchased in the year 1969 from Wasan Singh son of Labh Singh through Shri Avtar Singh, and she used to give this land on lease on contract basis because her family members and her husband are residing in England. Whenever they used to return to India, they used to give the land on lease on contract basis. Later on Hari Singh and his sons, i.e., Mukhtiar Singh, Balbir Singh and Lakhbir Singh, got fabricated a false registry and they wanted to take possession of 2 acres of land, where the orchard is also standing and in some portion of the land, wheat, and fodder was sown by Jaswinder Singh, who has taken the land on lease from Smt. Gurdip Kaur. Hari Singh and his sons want to harvest wheat crop in order to sell it and they also claim their right to do so. It has been specifically alleged in the Kalendra that both the parties Nos. 1 and 2, referred to above, claim possession over the land and they want to cut the crop and the orchard and there is apprehension of breach of peace. It has also been clearly mentioned that civil dispute is going on in the Court with regard to this land and there is also apprehension that the parties may commit murder of each other. Further the S.H.O., Police Station City, Patti vide Kalendra dated 18th April, 1997 made a prayer to the Executive Magistrate to proceed under Section 145, Cr.P.C., upon which order (Annexure P2) was passed under Section 145(1) and under Section 146 on 22nd April, 1997. It is a contested order and a perusal of the same would show that the learned Magistrate was satisfied that the dispute was likely to take place concerning the breach of peace between parties Nos. 1 and 2, and invoking emergency provisions, he appointed Shri Amarjit Singh, Tehsildar, Patti, as receiver, who shall take the possession of the land in dispute during the pendency of the proceedings.

Not satisfied with the Kalendra (P1) and the order (P2), the present petition has been filed by the three petitioners, alleging that the action on the part of the Police as well as the action on the part of the Executive Magistrate was nothing but an abuse of the process of law, specially in the light of the civil suit (P3) and the order of the Civil Judge (Junior Division) (Annexure P4).

I have heard Shri D.S. Pheruman, learned counsel for the petitioners and this petition I am disposing of without issuing notice to the respondents, as in the opinion of this Court the present petition is liable to be dismissed for the various reasons which I want to enumerate in the subsequent portion of this judgment. Before I advert to the contentions raised by the learned counsel for the petitioners, I would like to refer to some of the substantive provisions of Section 145 and 146, Cr.P.C., in order to deal with the submissions of the learned counsel for the petitioners. The object of Section 145, Cr.P.C., if I understand rightly, is to maintain public order and tranquility and also to prevent breach of peace concerning disputes relating to the immovable properties. A perusal of subsection (1) of Section 145, Cr.P.C., clearly shows that these provisions can be invoked and powers can be exercised by the Executive Magistrate when he is satisfied from a police report or upon other information that dispute likely to cause breach of peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and that he would call upon the parties concerned in such dispute to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Thus these provisions would show that the Magistrate is primarily concerned that no breach of peace should be there with regard to the immovable property and he may be permitted to determine as to which of the parties was in actual possession on the relevant date, i.e., two months earlier to the filing of the Kalendra. There is one more important provision under Section 145, Cr.P.C., and that is subsection (5) of the said section, which says that nothing in the main section shall preclude any party so required to attend, to show to the Magistrate that there was dispute as conceived by him earlier and on being so satisfied, the Magistrate has the power to cancel the said order, which he had passed earlier under Section 145, Cr.P.C. Section 146, Cr.P.C., gives a power in emergency to the Executive Magistrate, authorising him to attach the property and take the possession of such property till the rights of the parties are adjudicated and determined by a Court of competent jurisdiction, as to which of the parties are entitled to the possession of the property.

Now the major point for determination before me is whether the power under Section 482, Cr.P.C. should be invoked in the given circumstances when the petitioners have neither approached under Section 145(1), Cr.P.C. nor they have availed the benefit of the proviso which has been added to Section 146(1) Cr.P.C., which inter alia lays down that the Magistrate may withdraw the attachment at any time when he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. Section 482, Cr.P.C., lays down that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

We all know and even the trio would agree that the powers conferred upon the High Court under Section 482, Cr.P.C., are extraordinary in nature and should be used sparingly and in exceptional cases, but the High Court would not hesitate to invoke these powers where it comes to the prima facie conclusion that a grave injustice is going to be caused to one of the parties or where substantive provisions of the Code itself are not going to be implemented by any machinery. Equally is the law that when an alternative remedy is available to a party and the mischief of the order passed by the Magistrate can be revoked and rectified, such remedy must be adopted by that party before knocking at the door of the High Court under Section 482, Cr.P.C., unless the party is in a position to convince that the very start of the action was fundamentally and basically wrong and that it was not necessary for the party so aggrieved to approach the Executive Magistrate for invoking the powers under Section 145(5) of the Cr.P.C.

An effort has been made by Shri Pheruman, learned counsel for the petitioners, in order to convince that in the light of the civil suit and in the light of the order dated 12th February, 1994 (Annexures P3 and P4, respectively), the action on the part of the Police and the subsequent action on the part of the Executive Magistrate was an abuse of the process of law and the petitioners were justified in approaching the High Court without availing their remedy under Section 145(5) and under the proviso to Section 146, Cr.P.C., and in support of his contention learned counsel for the petitioners has invited my attention to Ram Sumer Puri Mahant v. State of U.P. and others, 1985(1) R.C.R. 278 a judgment of the Hon''ble Supreme Court where it was held that when the civil suit for title and possession and injunction is pending in a Civil Court, the criminal proceedings under Section 145, Cr.P.C., cannot be started while the civil suit is pending. The judgment relied upon by the learned counsel for the petitioners is not applicable to the facts in hand because in the quoted judgment the Hon''ble Supreme Court was pleased to hold :

".....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 proceedings under Section 145 of the Code..."

Now the point arises as to what is the nature of the relief which the petitioners have been able to get so far from the Civil Court. The plaintiffs filed a suit for declaration claiming their ownership and they further prayed for injunction. There is no finding by the Civil Court that the plaintiffs are in established possession; rather the finding given by the Civil Court is that "both the parties are directed to maintain status quo" regarding possession of the land in dispute. Need not to mention that it is the case of Smt. Gurdip Kaur that at no point of time she ever sold the property to the petitioners and she is exercising her possession through tenants. It is even the finding of the Police Officer that the land in question is being cultivated on behalf of Smt. Gurdip Kaur. Be that as it may, the question further arises whether an order of status quo can be equated with an order vide which the defendants have been specifically restrained not to interfere with the established possession of the plaintiffs. In the opinion of this Court the order of status quo does not determine or adjudicate as to which party is in possession of the property. It is an order giving right to both the parties to establish their claim regarding possession subsequently during the course of trial by leading cogent, reliable and satisfactory evidence both in the nature of oral and documentary. Had the petitioners been able to get finding from the Civil Court that they are in established and exclusive possession of the property in question, certainly, this Court would have accepted the contention of Shri Pheruman and would have struck down the Kalendra and the order of the Magistrate on the sole ground that the powers under Section 145, Cr.P.C., have been invoked by the Police Agency in a most arbitrary and capricious manner in order to help Smt. Gurdip Kaur, but once the Civil Court is in a position to adjudicate and give findings in favour of the petitioners, in order to prevent the breach of peace with respect to the immovable property, which is the dominant object of Section 145, Cr.P.C., the criminal proceedings under Section 145, Cr.P.C., can be and should be invoked.

Faced with this difficulty, learned counsel for the petitioners then took the assistance of Joginder Singh v. State of Punjab and another, 1991(3) R.C.R. 226. This authority again is not very helpful to the petitioners because in the cited case at one point of time both the parties to the proceedings under Section 145, Cr.P.C., were bound down under Sections 107/151, Cr.P.C. Besides that civil proceedings were going on and the learned Sub Judge had passed the status quo order with regard to the property. As the breach of peace had already been protected in the proceedings under Section 107/151, Cr.P.C., the Hon''ble Judge was of the view that in the garb of the proceedings under Section 145, Cr.P.C., the effect of the order of the Civil Court cannot be nullified or erased. My attention was also invited to Sarmukh Singh v. State of Punjab, 1996(2) R.C.R. 13 ; Kartar Singh and others v. Gurmukh Singh and others, 1992(1) R.C.R. 343 ; Darshan Singh v. State of Punjab and others, 1992(1) R.C.R. 396 ; and Ram Niwas and others v. The State of Haryana and others, 1992(1) R.C.R. 624. All these authorities have been considered by me and can be made distinguishable on their own facts. In Sarmukh Singh''s case (supra) the petitioners of that case had filed a civil suit for possession by way of specific performance and there was firm finding with regard to the possession and the defendants were restrained from interfering in the possession of the plaintiffs. In spite of the order of the Civil Court a crude attempt was made by the defendants to disturb the possession of the plaintiffs under the garb of Section 145, Cr.P.C., and in these circumstances the proceedings were quashed. I have already stated above that in the present case there is no finding in favour of the present petitioners. The other three authorities quoted above would show that after the granting of the status quo order, no untoward incident had taken place between the parties. The parties were respecting the orders of the Civil Court. They had no intention to fight with each other or to commit the breach of peace. In the present case there is a specific allegation of the State that the parties are bent upon committing the breach of peace and even there is apprehension of the commission of murder. The finding of the Police prima facie is in favour of Smt. Gurdip Kaur. In the cited cases the Hon''ble Judges had sensed that the Police was resorting to the provisions of Section 145, Cr.P.C., in an illegal manner in order to help one party or the other, which parties had already been defeated by a Court of competent jurisdiction. Present is a case which is totally on different footings. The composite orders under Sections 145(1) and 146, Cr.P.C., are in the nature of interim orders, giving right to the Executive Magistrate to recall or rescind those orders on being convinced from the parties. The petitioners have not adopted that remedy. They are directly rushing to this Court, which cannot adjudicate a question of fact nor is in a position to say that the invoking of the powers under Section 145, Cr.P.C., was an abuse of the process of law on the part of the Police/State instrumentalities. Secondly there is no firm finding regarding possession in favour of the petitioners, who are simply embarking upon a status quo order, little realising that even after the passing of this order, the Magistrate was satisfied on the information supplied by the Police that there existed an apprehension of breach of peace, which is the basic foundation for the initiation of the proceedings under Section 145, Cr.P.C.

In the light of the above, I am of the considered opinion that the present petition is totally devoid of any merit, which is hereby dismissed at the motion stage itself without issuing notice to the respondents.

Nothing stated above shall amount to an expression of my opinion on the merits of the case and it will be still open to the petitioners to approach the Executive Magistrate in accordance with law and to convince him that the impugned order is liable to be recalled or modified or rescinded.

The petition stands disposed of.