Sanjeev Kumar, (Minor) through his father Sh.Jagdev Singh vs Sub Divisional Magistrate, Naraingarh, and ors.

A.P. Chowdhri, J.—This is a petition under section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code'') seeking the quashing of proceedings under sections 145 and 146 of the Code initiated by SubDivisional Magistrate, Naraingarh.

Brief facts of the case are that there is an agricultural land measuring 193 kanals in the area of village Mauli, Tehsil Naraingarh. it was owned by Mohan Dass etc. of Adhoya, Tehsil and District Ambala. Petitioners 1 and 2 claimed to have been tenants on the land for the last 67 years and their names are duly entered in the revenue record. Petitioner No. 3 is uncle of petitioner No. 1 and he is helping in management and cultivation of the land. Respondent Nos 2 and 3 are stated to have purchased the said land on 19 9, 1988. According to the petitioners, respondent Nos. 2 and 3 were keen to acquire actual physical possession of the land before and after the sale. In order to protect their legitimate rights,, petitioners Nos. 1 and 2 filed a civil suit for permanent injunction restraining inter alia, respondent Nos, 2 and 3 from interfering. in their possession as tenants. The civil Court passed an ''ad interim injunction on 15.6.1988 i.e. prior to the sale of land in favour of respondent No. 2 and 3 restraining them from interfering in the possession of the petitioners. That order is still in force. Copy of the order is Annexure P. 1 Petitioners 1 and, 2 also filed another suit for possession of the land by preemption on the ground of being tenants therein. In that suit also, there was a direction by the civil Court directing the parties to maintain status'' quo with regard to possession except in due course of law, Copy of the order is Annexure P.2. Respondent Nos. 2 and 3 filed a civil suit for permanent injunction'' against the vendors Mohan Dass etc. and the present petitioner. Ex parte stay order was granted in their favour. The present petitioners put in their appearance in that suit and filed a reply opposing the exparte ad interim injunction. Respondent Nos. 2 and 3 got their suit dismissed in default on 22.10.1988. No application for restoration of the suit had been made. Copy of the order passed in this behalf dismissing the suit for default Annexure P.3.

On 3.10.1988. respondent Nos. 2 and 3 alongwith 4050 persons are alleged to have attacked the petitioners in the land in dispute with deadly weapons. The petitioner party received serious injuries. With regard to this incident, FIR No. 46 of 1988 was lodged with Police Station Raipur Rani. Respondent Nos. 2 and 3 along with four others were arrested and challaned in that case. Trial is pending.

Having failed to obtain possession of the land the said respondents got initiated proceedings under section 145 of the Code by having an application moved through their henchman. Copy of the application is Annexure P 4. Certain residents of village Mauli stated in the application that Om Parkash Sharma and Anupam Bhalla were owners in possession and that paddy crop was standing thereon. Sanjiv Kumar, Daljit Singh, Raj Kumar, Jagdev Singh etc. were keen on taking possession of the said land. They had fourfive guns and threefour country made pistols and on 30.10.88 they had tried to take possession and had fired from their weapons. Great tension prevailed in the area. The petitioners being residents of the village, therefore, prayed that, action may be initiated under section 145 of the Code to ensure peace in the village. The ],earned Sub Divisional Magistrate, Naraingarh passed the following order on the above Application on 18.11.1988 :

"I am satisfied that a serious breach of peace might occur on this piece of land if possession is not decided immediately. As such, this piece of land, as mentioned and attached with this complaint be got attached immediately, under section 145, Cr.P.C."

On a later date, the Sub Divisional Magistrate appointed Naib Tehsildar, Raipur Rani as a Receiver of the land and directed him to take over possession.

The orders under sections 145 (1) and 146 of the Code have been assailed on two grounds. Firstly that the civil Court was seized of the question of possession had applied its mind and had issued ad interim injunction and carrying on of parallel proceedings u/Ss. 145 and 146 of the Code was an abuse of the process of the Court Secondly, the orders purporting to be under sections 145 and 146 of the Code were not valid and, therefore, nonexistent in the eye of law. Any action taken in pursuance of such orders was also an abuse of process of Court. Regarding the first contention, it may be pointed out that there is no inherent conflict between sections 145 and 146 of the Code on the one hand and proceedings in the civil Court on the other hand. The object of section 145 of the Code is to prevent breach of peace and for that end to provide a speedy remedy by bringing the parties before the Court aid ascertaining which of them was in actual possession and to maintain status quo until their rights are determined by a competent Court. It appears to be in this background that a Division Bench of this Court in Mohinder Singh v. Dilbagh Rai, 1976 PLR 103, made the following observations, "the magisterial authority is quicker and has more effective sanction behind the orders passed under section 145 Cr.P.C. for avoiding breach of peace or recurrence of such breaches as compared with the powers of the civil Court under JUDGMENT 39 Rule 2(3) of the Code of Civil Procedure." Under, section 145 of the Code the Executive Magistrate is empowered to initiate action on police report as also upon other information. Immediate purpose of proceedings under section 145 of the Code is to ensure peace and prevent a situation where either or both parties might take the law in their hand over possession of immovable property. In order to achieve that end, the Magistrate in the interest of preventing breach of peace can attach the land under section 146 of the Code. The right to be in possession as also all questions connected therewith including title are to be decided by the civil Court which takes a comparatively longer time.

Shri S.S. Rathore, learned counsel for the petitioner, referred to the following authorities: Gurdial Singh and another v. The State of Punjab and others, 1988(2) RCR(Crl.) 651 (P&H) : 1988(2) CLR 454; Ram Sarup and others v. State of Haryana and others, 1988(2) CLR 57; Brahm Pal and others v. State of Haryana and others 1988(1) CLR 18; and Randhir Singh v. The State of Punjab and others, 1984(1) CLR 221.In all these cases, it was held that the proceedings under section 145 of the Code were unwarranted when the civil Court was seized of the dispute regarding possession of the property and proceedings under section 145 of the Code were quashed. Shri P.K. Palli, learned counsel for respondent Nos. 2 and 3 on the other hand, relied on the following authorities Kuldip Singh Sahni v. The State of Punjab and others, 1988(1) RCR(Crl.) 74 (P&H) : 1988(1) CLR 392; Mohinder Singh v. Dilbagh Rai, 1976 PLR 803 (DB); Ram Kishan v. State of Punjab and another, 1989 (1) RCR 185; Jagdish alias Jagdish Kumar v. Sub Divisional Magistrate and others, 1987(1) CLR 487; Kalu Singh and others v. Harish Kumar and others, 1988(1) RCR 414 and Latif Ahmed v. State of Haryana and another, 1988(2) RCR 165. In all these decisions, it was held that proceedings under section 145 of the Code were maintainable inspite of the fact that the civil Court was seized of the dispute regarding possession of immovable property.

It can be taken as settled law that jurisdiction of the Executive Magistrate under section 145 of the Code is not ousted simply on the ground that the civil Court is seized of the dispute regarding possession of immovable property and has either granted a temporary injunction under Or. 39 R. I and 2 of the Code of Civil Procedure or has directed the parties to maintain status quo. This jurisdiction is derived by the Executive Magistrate because of the paramount consideration of preventing a breach of peace. This is the conclusion reached by the learned Judges of the Division Beach in Mahinder Singh''s (supra) on the basis of the ratio of two decisions of the Supreme Court in R.H. Bhutani v. Miss, Mani J. Desai, AIR 1968 Supreme, Court 1444, and Sajan Singh v. Sajan Singh, 1970(2) UJ (SC),75. It is equally settled that finding of the Civil Court with regard to possession as also the right to be in possession is binding on the Executive Magistrate. A consideration of the facts of a given case may however, render continuance of proceedings under section 145 of the Code or passing of an order under section 146 of the Code unnecessary or even an abase of the process of the Court. It is in such cases that this Court has quashed the proceedings under sections 145/146 of the Code.

Coming back to the facts of the present case Civil Court''s order granting an injunction in favour of the petitioners is in force. Respondent Nos. 2 and 3, on the other hand got an injunction in their favour at one point of time but when the petitioners put in appearance in order to oppose the same the suit was got dismissed and the same has not been restored yet. The facts further showed that, having lost hope of regaining possession respondent Nos. 2 and 3 are alleged to have resorted to violence regarding which criminal proceedings have been initiated against them. In this background, initiation of proceedings under sections 145 and 146 of the Code appears to be an abuse of the process of the Court. The first contention of the petitioners, therefore, deserves to be accepted.

With regard to the second contention, it may be stated that no particular form has been prescribed for an order under section 145(1) of the Code. The Magistrate derives his jurisdiction by the facts andnot on the basis of the words employed by him in Passing the order. The essential ingredients of section 145 of the Code are : (i) dispute about possession of land water or boundaries thereof, and (ii) that there is likelihoods of breach of peace. What is required is that the Executive Magistrate should be satisfied and he shouldspecify in the order the grounds of his being so satisfied. A reading of the order which has been reproduced above shows that these necessary ingredients were present and, therefore, the order dated 18.11.1998 cannot be held to be invalid under section 145(1) of the Code. The said order will not be rendered invalid simply because the formal order available on record was expressed in the form prescribed for a final order under section 145(6) of the Code. In fact, there is formal order in the correct form dated 24.11. 1988 also available on the record and, in any case, the irregularity in the form of order is a curable one and has not caused any prejudice to the parties.

With regard to order under section 146 of the Code, the learned SubDivisional Magistrate appears to have passed an order on 9.3 1989 as mentioned by him in his reply. There is evidently an overwriting both under the order as well as in the preceding order'' in the order sheet, The overwriting is clear to the naked eye and evidently the petitioners stood to gain nothing by tempering with the record. For the purposes of the present case, it is not of much significance to find out under what circumstances was the tempering done and at whose instance. The learned Sub Divisional Magistrate noted that through the police he learned that great tension prevailed that the parties were likely to clash and to prevent a breach of peace he appointed Naib Tehsildar, Raipur Rani as Receiver. I am unable to accept the contention of learned counsel for the petitioner that the order should be set aside on the ground that it was in contravention of the provisions of section 146 of the Cede.

On careful consideration and for the reasons discussed above the petition is allowed and in view of the facts and circumstances of the case, in proceedings under sections 145 and 146 of the Code are hereby quashed.