Om Parkash vs State of Haryana and othes

V.K. Jhanji, J.

In this petition under Section 482 Cr.P.C. petitioners seek the quashing of proceedings initiated under Section 145 Cr.P.C. and also order dated 25.11.1994 passed by the Sub Divisional Magistrate, Ellanabad, District Sirsa, appointing Naib Tehsildar, Ellanabad, as Receiver.

The dispute between the parties is with regard to property of Jumma Ram. Jumma Ram had four sons namely Om Prakash, Shannu Ram, Nand Kishore and Hari Chand. Shannu Ram and Nand Kishore have died leaving behind Hans Raj and Vipan sons of Shannu Ram and Madhu and Asha daughters of Shannu Ram, and Kusum widow of Nand Kishore, Sanjay and Sumeet sons of Nand Kishore. Likewise, Om Prakash has two sons namely Anil and Rajesh and Hari Chand has two sons namely Amit and Akhil. Kusum widow of Nand Kishore made an application to the Senior Superintendent of Police, Sirsa, for initiating proceedings under Section 145 Cr.P.C. saying that the elder brother of her husband namely Om Prakash alongwith his sons, Anil and Rajesh, is interfering in her possession and unless proceedings under Section 145 Cr.P.C are initiated, there shall remain danger of peace. On her application, Kalandara was prepared and the matter was put up before the Sub Divisional Magistrate concerned who on finding imminent danger to peace, vide order dated 25.11.1994 attached land measuring 369 kanals 19 marlas situated in village Himuankhera, under Section 145 Cr.P.C. and also appointed Naib Tehsildar, Ellanabad, as Receiver under Section 146 Cr.P.C. In the present petition, initiation of proceedings and order of Sub Divisional Magistrate are sought to be quashed on the ground that while passing the order, the learned Sub Divisional Magistrate did not apply his mind inasmuch as he did not consider that civil dispute was already pending between the parties in which an order of statusquo had been passed.

Learned counsel for the petitioners has contended that during the pendency of civil proceedings between the parties, no Magistrate could initiate proceedings under Section 145 Cr.P.C. He also contended that proceedings under Section 145 Cr.P.C. are not competent in respect of joint property. According to him, every one of the joint owners being owner in possession of every inch of joint land, the Magistrate could neither entertain the application nor could make an order under Section 145 Cr.P.C. In support of his submissions, counsel has placed reliance on judgments in Rachhpal Singh v. State of Haryana and others, 1990(2) RCR(Crl.) 566 , Manisha Devi v. Union of India, 1994(3) RCR(Crl.) 433 , Chet Ram v. Sohan Lal, 1991(3) Recent Criminal Reports 522 : 1991(2) Chandigarh Law Reporter 505 and Swami Shaktivesh v. State of Haryana and others, 1988(2) Recent Criminal Reports 556 : 1989(2) Chandigarh Law Reporter 354 . In answer to these submissions, counsel for respondents 5 and 6 contended that in civil proceedings, question of possession with regard to disputed property had not been adjudicated; rather on an application filed by the petitioner under JUDGMENT 39 Rules 1 and 2, Code of Civil Procedure, for interim injunction, the relief has not been given to him and the parties have been directed to maintain statusquo regarding possession. Counsel contended that in the garb of order of statusquo, petitioners tried to dispossess the other co sharers and for maintaining peace, proceedings under Section 145 Cr.P.C. have been initiated and order appointing Receiver has been made.

After hearing the learned counsel for the parties, I am of the view that there is no merit in the petition. Proceedings under Section 145 Cr.P.C. cannot be dropped merely on the ground of pendency of civil suit. Petitioner in the civil suit is seeking declaration that he is in exclusive possession of the land in dispute on the basis of some family settlement, whereas the case of the respondents is that there had been no family settlement and the settlement set up by petitioners is a forged and fictitious document. They have asserted that they have correctly been recorded as owners in joint possession. The Additional Senior Sub Judge, Sirsa, who is seized of the civil suit on an application filed by the petitioner under JUDGMENT 39 Rules 1 and 2 Code of Civil Procedure, opined "As regards the prayer of the plaintiff to seek an injunction order against the defendants restraining them from interfering in the possession of the plaintiffs. I stay my hand at this stage and only direct both the parties to maintain status quo with regard to the possession in respect of the suit land as it exists today." For such like circumstances, a Division Bench of this Court in Mohinder Singh v. Dilbagh Rai, 1976 P.L.R. 803 has held that Section 145 Cr.P.C. is a beneficial section enacted with the express object of preserving the peace. For the attainment of this object, emergency provision for attaching the subject matter of dispute has been provided in it. Under this section, the criminal Court can only pass a temporary order and the rights of the parties in fact are to be settled by the Civil Courts. In paras 10 and 11 the Division Bench has held thus :

"10. The third type of cases, that is, maintenance of status quo during the pendency of the civil suit is a situation in which a civil Court does not prima facie feel satisfied about any party being in possession of the subject matter of the suit. In such cases when both parties claim possession, dangerous situation can develop with the anxiety of both or any one of them to get into actual possession. If the situation deteriorates then the police or the Magistrate cannot act as silent spectators to witness the breach of the peace. If they act in such circumstances and the Magistrate attaches the subject matter of the dispute under Section 145, Criminal Procedure Code, then he would be acting to defend the maintenance of the status quo as ordered by the Civil Court.

Such situations are not purely hypothetical or conjectural but do occasionally arise in the Courts. The position, that the Magistrate under Section 145, Criminal Procedure Code, cannot continue with the proceedings when the Civil Court is seized of the case or passes injunction orders referred to above, if accepted, can lead not only to breach of the peace but also to disrespect to the orders and the process of the civil Courts. M.R. Sharma, J. sitting singly, giving a dissenting view to the above referred case, in Criminal Misc. No. 728M of 1975, Bir Singh v. State of Haryana, decided on 15th July, 1976, on similar facts referring to Teja Singh''s case (supra) observed :

"There is no quarrel with the aforementioned proposition of law but in a matter like this no hard and fast rule can be laid down. Sometimes during the pendency or a civil suit and during the continuance of an order of injunction passed by a civil Court the parties do violate the peace and try to take forcible possession of the land from one another. In such a situation the police or the weaker party would not be absolutely debarred from initiating proceedings under Section 145 of the Code of Criminal Procedure."

A Magistrate acting under Section 145, Criminal Procedure Code is called upon to decide a question of possession, the nature and period of which is limited by this section. The Magisterial authority is quicker and has more effective sanction behind the orders passed under Section 145, Criminal Procedure Code, for avoiding the breach of peace or recurrence of such breaches, as compared with the powers of the Civil Court under JUDGMENT XXXIX, Rule 2(3), Civil Procedure Code. The finding recorded or the decision returned by a Magistrate in such cases is, of course, subject to the decision of the Court, as the rights of the parties to possession are not decided in proceedings under Section 145, Criminal Procedure Code. The mere pendency of the Civil suit about the same subject matter between the same parties or the orders of the Civil Court of the type discussed above do not restrain the Criminal Court from exercising jurisdiction under Section 145, Criminal Procedure Code. Their Lordships of the Supreme Court in R.H. Bhutani v. Miss Man J. Desai, approving the decision of the Bombay High Court in Jiba v. Chandulal, observed (para 14)

"In A.I.R. 1926 Bom. 91 (supra) the High Court of Bombay held that it would be unfair to allow the other party the advantages of his forcible and wrongful possession and the fact that time has elapsed since such dispossession and that the dispossessor has since then been in possession or has filed a suit for a declaration of title and for injunction restraining disturbance of his possession is restoration of possession once he is satisfied that the dispossessed party was in actual or deemed possession under the second proviso."

In Sajjan Singh''s case (supra), the facts were that the parties had more than two rounds of civil litigation about a house. On the report of the police the Sub Divisional Magistrate attached the property in dispute, that is, the house. One of the parties filed a suit for permanent injunction against the other party and obtained an injunction that his possession be not disturbed. He moved the Sub Divisional Magistrate for the stay of the proceedings under Section 145, Criminal Procedure Code, and also produced the injunction order. The Sub Divisional Magistrate dismissed the application. The High Court upheld the order of the attachment as well as the appointment of the receiver made by the Sub Divisional Magistrate. In appeal to the Supreme Court the order of the High Court was questioned. The Supreme Court upheld the order of the High Court and observed :

"In our opinion this case must go back to the Sub Divisional Magistrate for decision of the proceedings before him. Those proceedings commenced as far back as 1967 and the question whether there is or there is not any apprehension of breach of peace will certainly have to be decided in the light of the happenings in the Civil Court. In the meantime we do not see any reason to order the setting aside the order of the High Court. It will be open to the Sub Divisional Magistrate to consider whether the Receiver should be continued or not, but in any event, he shall not disturb the possession of Sajjan Singh son of Jagan Nath Singh so long as the temporary injunction is outstanding and pending the decision of the proceedings under Section 145 of the Code of Criminal Procedure with a view to handing over the possession to the other side."

The ratio of both these judgments of the Supreme Court is that the pendency of the same matter between the same parties in civil court does not mean the ouster of the jurisdiction of the executive Magistrate under Section 145 Criminal Procedure Code in spite of the stay orders. A perusal of the judgments of the above referred to six cases shows that R.H. Bhutani''s and Sajjan Singh''s cases were not brought to the notice of the Hon''ble Judges deciding those cases. Had these cases been brought to their notice, I am sure, the view taken by the Hon''ble Judges would have been different. With due respect to the Hon''ble Judges deciding the above referred to cases their view cannot be preferred to the view of the Supreme Court in Sajjan Singh''s case (supra)."

In the present case, the complainant before the Sub Divisional Magistrate had asserted herself to be joint owner of the disputed land, whereas the petitioners had asserted that they are in exclusive possession of the land. The question thus, raised before him was with regard to possession. Since the Civil Court had ordered maintenance of status quo and each party claimed possession, the Magistrate had no alternative but to step in 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 Civil Court. The Single Bench judgments of this Court in Chat Ram''s and Swami Shaktivesh''s cases (supra) run counter to the binding precedent laid down by Division Bench of this Court in Mohinder Singh''s case (supra) and therefore, the counsel cannot derive any benefit from these judgments.

Consequently, this petition shall stand dismissed. No costs.