Nachhattar Singh and ors vs Gurinder Singh and ors.

D.S. Tewatia (Oral).

Petitioner Nachhatar Singh and others invoked inherent jurisdiction of this Court under section 482 Cr.P.C. for quashing the impugned order dated 12th February, 1982 passed by the Sub Divisional Magistrate, Nabha, attaching the property (land and crop) in dispute and appointing a receiver for its management on a police report made to him on 21st January, 1982 at the instance of Gurinder Singh respondent inter alia on two grounds :

(i) That the impugned order is a composite order under sections 145(1) and 146, Cr.P.C. and is, therefore. illegal; and

That the initiation of the proceedings under section 145, Cr.P.C. before the Sub Divisional Magistrate amounts to abuse of the process of this Court.

This petition when first came up before me, I referred the first question for the decision of the larger Bench which has vide its judgment dated 12th November, 1982 held that in an emergency composite order could be passed.

When the case was remitted for decision on merits by the Division Bench, counsel for the petitioners, in view of the ratio of the Division Bench decision only highlighted the circumstances to show as to how the initiation of proceedings under section 145, C.P.C. amounted to abuse of the process of his court which can be stated thus :

On 15th March, 1974 petitioners suit for permanent injunction restraining respondents Nos. 2 to 4 namely Jagdev Singh, Sukhpal Singh and Harpal Singh, from interfering with their possession of the suit land was decreed and permanent mandatory injunction restraining respondents Nos. 2 to 4 from interfering with the possession of the suit land was granted. On 7th February, 1977 an appeal at the instance of respondents 2 to 4 against the judgment and decree of the trial Court was dismissed by the senior Subordinate Judge Patiala. Since respondents Nos. 2 to 4 did not desist from interfering with the possession of the petitioners on suit land the petitioners filed an application under JUDGMENT 21 Rule 32 C.P.C. for the enforcement of the order on 15th March, 1977. Respondents 2 to 4 made a statement in Court that they had not interfered with the possession of the petitioners over the suit land nor they had any intention to interfere in future with the possession of the suit land. In view of the said statement, the application was consigned to the record room vide order dated 29th January, 1980. Apparently respondents 2 to 4 were in no mood to be restrained by the Court and again tried to interfere with the possession of the petitioners over the suit land which led the petitioners to file the second application under order 21 Rule 33, C.P.C. on 4th February 1980. During the pendency of that application, on 20th April, 1980 respondents 2 to 4 filed a declaratory suit against the petitioners that they were in possession of the very suit land. Also during the pendency of the said second execution application, one Gurinder Singh on 13th September, 1980 filed a suit for permanent injunction to which besides impleading respondents 2 to 4 as defendants, he also impleaded the petitioners herein as defendants. He secured an ex parte collusive decree against the petitioners while respondents 2 to 4 admitted his claim and allowed an adverse decree of injunction being passed against them. On coming to knew about the said ex parte decree the petitioners moved the trial Court to set aside the ex parte decree against them in the meantime the executing Court dealing with their second execution application filed on 4th February, 1980 held on 19th February, 1981 that respondents 2 to 4 were interfering with the possession of the petitioners over the suit land and it ordered the attachment and sale of the land of respondents 2 to 4. On 6th April, 1981 High Court dismissed the revision petition of respondents 2 to 4 against the order dated 19th February, 1981. On 6th November, 1981 the trial Court in the proceedings arising from the application of the petitioners to set aside the ex parte decree fraudulently secured against them by Gurinder Singh respondent No. 1 on his aforementioned suit passed an interim order directing Gurinder Singh respondent No. 1 and Hari Singh his coplaintiff not to forcibly dispossess the petitioners from the suit land. It is thereafter that Gurinder Singh on 20th January, 1982 made, a report to the police to the effect that the petitioners herein were trying to forcibly dispossess him of the suit land. The police submitted its report on 21st January, 1982 and the learned Executive Magistrate passed the impugned order on 12th February, 1982, without so much as issuing a notice to the petitioners.

In an affidavit in reply by respondent No. 1 on behalf of respondents 1 to 4 the facts mentioned above have been admitted. So, the only question that remains to be seen is as to whether in the light of the facts mentioned above, can one say that the initiation of the proceedings under section 145, Cr.P.C. amounted to the abuse of the process of Court on the part of the respondents.

It was convassed by Shri Harbans Singh, learned Senior Advocate, on behalf of the respondents that the Executive Magistrate was competent to entertain the proceedings under section 145, Cr.P.C. initiated at the instance of Gurinder Singh and there was no question of the same amounting to abuse of the process of the said Court. He referred me to a Division Bench judgment of this Court in Mohinder Singh v. Shri Dilbagh Rai 1976 P.L.R. 803 in support of this submission.

Counsel for the petitioners on the other hand placed reliance, on a Single Bench decisions of this Court in Milkha Singh. v. State of Punjab and another 1982(2) C. L. R. 191. Bhawan Pal v. Prem Kumar Jain and others 1982 P. L. R. 195 and Sardari Lal v. State of Punjab 1980(2) Cri. L. J. 1151.

In Mohinder Singh''s case (supra) the civil Court passed an interim JUDGMENT for the maintenance of status quo regarding the disputed land between the two litigating parties. This is an order which normally leads to a scramble between the parties for getting into the possession of the disputed property and thus leading to a situation for imminent breach of peace regarding the possession of the property in question and that is what had happened in that case. Proceeding under section 145. Cr.P.C. were launched at the instance of the police. When the matter reached the High Courts in revision petition, a number of single bench decisions of this Court were brought to the notice of the learned single Judge The learned Judge whose attention was also invited to a decision of the Supreme Court rendered in Sajjan Singh, son of Jagun Nath Singh v. Sajjan Singh son of Bhairu Singh Criminal Appeal No. 170 of 1968 decided on 10101969 was of the view that the view enunciated in some of the single bench decisions that once the Civil Court was seized of the dispute, proceedings under section 145, Cr.P.C. before the executive magistrate are incompetent was considered to be laying down too wide a proposition and therefore, the case was referred to a larger Bench. The Bench mooted that Civil Court dealing with the dispute between the parties regarding possession of the suit property could pass three types of orders.

i) It could appoint a receiver to manage the properties in dispute;

ii) It could restrain one of the parties from interfering with the possession of the other party during the pendency of the suit; about which the civil Court prima facie feels satisfied; and

iii) It could order the maintenance of status quo about the possession of the property during the pendency of the case.

K. S. Tiwana, J. who delivered the opinion for the Bench held that in a case where the civil Court itself appointed a receiver for the management of the properties, proceedings under Section 145, Cr.P.C. would be absolutely incompetent. In regard to a case where the Civil Court granted interim injunction against one party restraining it from interfering with the possession of the other party, the learned Judge again felt that there appeared that there might not be any scope for the criminal Code, because the civil court prima facie felt satisfied about the possession of one of the parties to the litigation before passing the adiniterim order in his favour.

However, the learned Judge on giving a deeper though to the matter a felt that if the jurisdiction of the Executive Magistrate under section 145, Cr.P.C. is altogether barred, than the party against whom injunction had been granted might out the injunction and the party in whose favour the injunction was granted might feel helpless if to him the help of the Executive Magistrate is denied and therefore, Tiwana J., observed :

"Cases are not wanting where a party, obtains an ad interim order in his favour to the effect that during the pendency of the suit the other party will not interfere in his possession. If the other party uses force to dispossess him, inspite of the stay order in his favour, leading to the apprehension of the breach of the peace creating a situation for the launching of the proceedings under section 145, Criminal Procedure Code and attraction of its emergency powers under subsection (4), the Magistrate will then stop in, not be start parallel proceedings but to defend the orders of the civil Court by not allowing the aggressor to establish himself in possession of the subject matter of the dispute in violation of the orders of the Court. In such a situation if the Magistrate acts then he adds the weight of the executive authority to respect the order of civil Court for maintenance of status quo and does not violate any law."

The learned Judge also highlighted a contrary situation where a wrong doer after forcibly dispossessing a party in possession files a civil suit and obtain injunction against the other party and when the other party approaches the Executive Magistrate under section 145, Criminal Procedure Code, was to succeed in thwarting the said proceedings on the ground that during the pendency of the civil proceedings regarding the possession of a given property the Executive Magistrate was not competent to entertain proceedings under that provision and thereafter, the wrong doer by getting his civil suit dismissed, could perpetuate his wrongful possession.

It would thus be seen that the Bench was clearly of the view that during the pendency of civil litigation in regard to the possession of property and during the period when she interim injunction of the civil Court restraining the other party from interfering with the possession of one party is in force then proceedings under section 145, Cr.P.C. could be launched only in aid of the order of the civil Court. That means invoking of the jurisdiction of the Executive Magistrate under section 145, Criminal Procedure Code at the instance of the party which had been restrained from interfering with the possession of the other party would tantamount to a clear abuse of the process of the Executive Magistrate''s Court by such a party. It would be more so in a case of the kind which is before me where respondents 2 to 4 had lost their case right upto the High Court. They made statements before civil Court during the proceedings initiated under JUDGMENT 21 Rule 32, C.P.C. that they would not interfere with the possession of the petitioners over the suit property and when they went back on their word and started interfering with the possession of the petitioners over the suit property the executing Court ordered attachment and sale of landed property of respondents 2 to 4. Respondents 2 to 4 not satisfied with what they themselves were doing brought in respondent No. 1 Gurinder Singh into the picture and got a suit filed by him for injunction against themselves and the petitioners. When that design also failed as a result of the order of the trial Court in that case restraining Gurinder Singh and coplaintiff Hari Singh from forcibly dispossessing the petitioners from the suit land, the respondents restored to the enlisting of the police and Executive Magisterial help on their side by initiating proceedings under section 145, Cr.P.C. The respondents are aggressors and are caring two hoot for the orders of the civil Court. The respondents are using the process of the Executing Magistrate''s Courts jurisdiction under section 145, Criminal Procedure Code for thwarting the orders and process of the civil Court which clearly amounts to the abuse of the process of the Court of Executive Magistrate and the provisions of Section 145, Criminal Procedure Code.

In a case of the kind where on police reports there existed a likelihood of the breach of peace, it would be more appropriate for the Executive Magistrate to deal with the situation under sections 107, Cr.P.C. as held by I.S. Tiwana, I, in Bhawan Pal''s case (supra).

For the reasons aforesaid I quash the impugned order and the proceedings in which the said order came to be, passed and thus allow the petition.