Niranjan Singh and others vs State of Punjab and others

M.M. Punchhi, J.—This petition u/s 482, Code of Criminal Procedure, 1973, has been placed before me as an aftermath of my order dated August 20, 1982 passed in Crl. Misc. No. 3366-M of 1982, which I had decided in favour of the petitioners. I had observed in that order as follows :--

Challenge has been made to the preliminary order passed in u/s 145(1), Criminal Procedure Code, and the pursuant notice on the basis thereof.

The said notice read with the impugned order reveals that the Sub-Divisional Magistrate had taken the view that the Panchayat land had been leased out from time to time by the Sarpanch, the B.D.O. and the District Development and Panchayat Officer to some lessees who were continuing in and were not delivering possession to the present lessees. It is on that score that he recorded the satisfaction that it requires determination as to who was the real owner or the lessee, and that who was in possession of the land as that fact was not being known. He also took the view that more than a hundred people were claiming respective rights on the land on this score he apprehended breach of peace with regard to possession of land. The composite order under sections 145 and 146 Criminal Procedure Code, passed by the learned Magistrate on 6th May, 1982 is in the following translated words :--

This Kalendra was produced by the police today u/s 145 of the Criminal Procedure Code. After issuing notice to the parties, they be called to file written reply and documents. The disputed land is attached and Tehsildar, Kapurthala is being appointed its Receiver. The report regarding attachment be taken from Tehsildar Kapurthala. The file be then put up on 20th May, 1982.

This order read with the contents of the notice afore-noted indicates one patent fact that the dispute relates to land between the old lessees and the new lessees. It is nowhere clear as to how section 145 of the Code of Criminal Procedure was attracted to such a situation. The learned Magistrate does not seem to have applied his mind towards that direction and passed a cryptic order for initiating proceedings u/s 145(1) of the Code of Criminal Procedure in routine as a sequel to the initiation of proceedings u/s 145 of the Code of Criminal Procedure. Nowhere has he recorded the satisfaction that the case was of emergent nature requiring him to take that exceptional step. On both the grounds, the order is cryptic and reveals non-application of mind.

Accordingly, this petition is allowed and the impugned orders are set aside. It would be open to the learned Sub Divisional Magistrate, Kapurthala, to pass fresh orders, if so advised in accordance with law.

I had left it open to the Sub-Divisional Magistrate, Kapurthala to pass fresh orders, if so advised. Purporting to take action afresh, he has passed the following order :--

Whereas I had afresh look, upon the Calendra the Police and I am satisfied, in view of the reasons mentioned therein that the dispute with regard to possession of various persons.

Over various khasra Nos. mentioned therein (as reproduced in the annexure) is likely to cause breach of peace between them. Now, therefore, in exercise the powers conferred upon me U/s 145 (1) Cr. P.C..............

And again is a sequel order with regard to the attachment of the property in dispute u/s 146(1) of the Criminal Procedure Code, 1973 appointing the Tehsildar Kapurthala as Receiver thereof

As is plain, the learned Sub-Divisional Magistrate avowedly having applied his mind has not done so at all. Now what is the aim of the dispute raised u/s 145, Code of Criminal Procedure, 1973. Obviously the fact of actual possession of the subject of dispute is to be determined with reference to the date of the preliminary order. Sub-section (4) of section 154, Code of Criminal Procedure, 1973, specifically provides that the Magistrate shall, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute. The learned Sub-Divisional Magistrate is of the view that whenever there is any dispute likely to cause breach of peace pertaining to land, then automatically Section 145 of the Code of Criminal Procedure, 1973 is attracted. That is a wrong way of reading the Section. The actual possession of the subject must be disputed. When one party is in possession of the land and the other party wants to get into it, there obviously arises a dispute, but not a dispute which is to be settled in proceedings u/s 145, Code of Criminal Procedure. In that situation, it is the duty of officers to protect the interests of the person in possession till he is dispossessed by due process of law. However in view of the specific averment of the police that the old lessees were in possession of the land and the new lessees were wanting to get into it and the situation had given rise to the fear of breach of peace, action u/s 145, Criminal Procedure Code, was wholly without justification. The situation only wanted a preventive measure of the kind of proceedings u/s 107, Code of Criminal Procedure, 1973. The lead and cue was not taken by the Sub-Divisional Magistrate in that regard. Thus there is nothing left to be sent back to him for reconsideration. To me it appears that the entire proceedings are the abuse of the process of court. For the view I have taken, they deserve to be quashed and I hereby do it. The learned Sub-Divisional Magistrate, if so advised, may proceed against parties u/s 107 of the Code of Criminal Procedure, 1973 towards the prevention of breach of peace.