Randhir Singh vs State of Punjab and ors.

B.S. Yadav, J.

Randhir Singh has filed this petition under section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing the orders dated 22.11.1982 (Annexures P.2) (correct date of that order is 2.11.1982) and dated 28.12.1982 (Annexure P.1) passed by Sub Divisional Magistrate, Rampura Phul.

According to the allegations in the petition, the petitioner get the land in dispute on Chakota from respondent No. 2 and was in actual possession of the same as tenant under respondents Nos. 2 and 3, Ishar Singh and Hardam Singh respectively. The entries in the Khasra Girdawaris were also in his name. The said respondents were making attempts to eject him. He filed a civil suit for permanent injunction in the Court of Sub Judge Ist Class, Phul, against them for restraining them from interfering with his peaceful possession on the land in dispute. After satisfying himself, the learned Sub Judge granted ad interim injunction on 29.4.1982 till the decision of the suit, restraining the said respondents from entering into possession on the land otherwise in due process of law. On the calendar presented by the police, learned Sub Divisional Magistrate, Rampura Phul, passed order on 2nd November, 1982 (Annexure P.2) by which he issued notices to the parties to put forth their claims under section 145 of the Code of Criminal procedure as he was satisfied that there was every apprehension of the breach of peace. Vide order dated 28th December, 1982, (Annexure P. 1) the learned Sub Divisional Magistrate ordered attachment of the land as there was apprehension of the breach of peace at any time. He also appointed Tehsildar, Rampura Phul, as Receiver of the land and to take immediate possession of it. That order was passed under section 146 Cr.P.C.

The petitioner has challenged the above orders on the ground that the learned Magistrate had totally ignored the order of the Civil Court according to which he had been held to be in possession and ad interim injunction was passed against the contesting respondents restraining them from interfering with his possession and that the Sub Divisional Magistrate ought to have taken the steps to prevent the breach of peace and not to come to the conclusion to pass the impugned order attaching the land and the standing crop. It was also alleged that the contesting respondents were trying to disturb his peaceful possession as well as the peace and thus proceedings under section 145 of the Code of Criminal Procedure were in the nature of the abuse of the process of the Court.

The above petition was contested by respondents Nos. 2 and 3 as well as by the State (respondent No. 1).

The first objection taken by the respondents was that the present petition is not maintainable because against the order dated 2nd November, 1982, the petitioners ought to have filed revision petition. It was also pointed out that the petitioner had filed a revision petition which was heard by the learned Additional Sessions Judge, Bhatinda, in which he had challenged the order dated 28th December, 1982, and later on withdrew that petition.

The above objection was repelled by Shri Gill, learned counsel for the petitioner by urging that the revision petition was filed against the attachment order which was an interlocutory order and, therefore, that had to be withdrawn. He has cited Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983(1) R.C.R.(Criminal) 73 : A.I.R. 1983 S.C. 67 wherein it was remarked :

"After the coming into force of the Code of Criminal Procedure, 1973, (hereinafter referred to as the `present Code''), there was a serious divergence of judicial opinion on the question as to whether where a power is exercised under Section 397 of the present Code, the High Court could exercise those very powers under Section 482 of the present Code. It is true that Section 397(2) clearly bars the jurisdiction of the Court in respect of interlocutory orders passed in appeal, enquiry or other proceedings. The matter is, however, no longer res integra as the entire controversy has been set at rest by a decision of this Court in Madhu Limaye v. State of Maharashtra, (1978) I SCR 749 : (AIR 1978 SC 47) where this Court pointed out that Section 482 of the present Code had a different parameter and was a provision independent of Section 397(2). This Court further held that while Section 397(2) applied to the exercise of revisional powers of the High Court, Section 482 regulated the inherent powers of the Court to pass order necessary in order to prevent the abuse of the process of the Court. In this connection, Untwalia, J. speaking for the Court observed as follows (para 10) :

"On a plain reading of section 482, however, it would follow that nothing in the Code, which would include subsection (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court." But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers................. But in the case of impugned order clearly brings about a situation which is an abuse of the process of the Court for the purpose of securing the ends of the justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) an limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly."

I am of the opinion that in the present case the impugned orders clearly amount to an abuse of the process of the Court and interference by this Court is necessary. Therefore, irrespective of the fact whether revision petition was maintainable or not against the impugned orders, it is held that the present petition is maintainable.

Admittedly in the present case, long before the institution of the proceedings under section 145 of the Code of Criminal Procedure on the police report, the petitioner had filed a suit in the Court of Sub Judge, Rampura Phul. While granting ad interim injunction to the petitioner on 29th April, 1982, the learned Sub Judge found that the petitioner was prima facie in possession of the land and, therefore, finding a prima facie case and balance of convenience in his favour, he issued ad interim injunction restraining Ishar Singh and Hardam Singh, now respondents Nos. 2 and 3 from interfering with the petitioner''s possession over the suit land till the decision of the suit except in due course of law.

In the above circumstances the judgment reported in Nachhattar Singh and others v. Gurinder Singh and others 1983(1) Recent Criminal Reports 493 : 1983(2) C.L.R. 125 is clearly applicable to the facts of the present case. It was remarked :

"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 which the 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 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 was further remarked :

"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 Section 107, Cr.P.C. as held by I.S. Tiwana, J. In Bhawan Pal''s case (supra)."

The above observations fully apply to the present case.

For the foregoing reasons I accept the present petition and quash the impugned orders and the proceedings in which those orders came to be passed.