Surinder Singh vs State of Punjab and others

B.S. Yadav, J.

This revision Petition has been filed for quashing the order dated 9th June, 1982 passed by the Executive Magistrate, Jullundur, ordering attachment of a parcel of land situate in the revenue estate of Singh, Police Station Sadar Jalandhar.

The facts as appear from the various documents brought on the fire are that the present respondents Balwinder Singh and Buta Singh had filed a Suit against Surinder Singh, Sukhwinder Singh, Kultar Singh Mukhtiar Singh for a declaration to the effect that the sale deed dated 19th March, 1981, and 3rd April, 1981, with respect to the land in dispute were illegal, void and without consideration and were not binding on them. They also prayed for the permanent injunction restraining the defendants from taking forcible possession of the suit land from them. According to the allegations in the plaint they were illiterate and immature persons and the defendants had got executed the sale deeds from them by falsely representating that they were getting executed power of attorneys from them. The plaintiffs also prayed for a temporary injunction and it was granted exparte. The defendants filed an application for vacation of the exparte interim injunction. Vide order dated 6th May, 1982, the learned Sub judge Ist Class, Jullundur, vacated the exparte and interim injunction holding that he was of the opinion that the documentary evidence placed on record on behalf of the defendants prima facie made out a case of their lawful possession over the suit property, During discussion the learned Sub Judge also remarked that prima facie he was of the considered opinion that having invested a subtantial amount of approximately a couple of lacs of rupees, the defendants could not have remained without possession of the property mentioned in the sale deed for a period of wo harvests. It appears that thereafter the plaintiffs got manouvered a calender under section 145 of the Code of Criminal Procedure. The defendant o that suit and one Surinder Kaur were arrayed as second party in those proceedings. Executive Magistrate Jullundur passed an order dated 18th May, 1982 under Section 145 calling upon the parties to appear in his court and to file their respective claims. After the documents had been filed, the learned Executive Magistrate passed the impugned order dated 9th June 1982, under Section 146, ordering attachment of the disputed land. The second party has filed this petition.

The learned counsel for the respondent raised a preliminary objection to the effect that in view of rule 3 of PartA (b) of Chapter 1 of the Rules and JUDGMENTs of the Punjab and Haryana High Court. Volume V, it was incumbent upon the present petitioners to have approached an inferior court in the first instance. According to him the revision petition ought to have been filed before the Sessions Judge instead of rushing to this court. The above rule was framed when the old Criminal Procedure Code was in force. Relevant portion or section 397 of the new Code of Criminal Procedure, 1973, read as follows :

"397. (1) High Court or any Sessions Judge may call for and examine the record of any proceedings before any inferior Criminal Court situate within its or his Local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation..............

(2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If any application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

The above provisions clearly show that a party has an option to file revision petition either in the High Court or before the Sessions Judge. The only prohibition is that if an application has been once entertained either by the High Court or the Sessions Judge no further application by the same party shall be entertained by the other of them. Moreover in the cases which will be cited below, the revision petitions were filed direct in the High Court.

Learned counsel for the petitioners argued that the civil court is already seized of the matter and, therefore, the proceedings under sections 145 or 146, Code of Criminal Procedure ought not to have been entertained by the Executive Magistrate. However, this argument has no force. In Mohinder Singh v. Shri Dilbagh Rai. 1975 PLR 893 it was held tha the mere pendency of the civil suit about the same subjectmatter between the same parties does not restrain the criminal court from exercising jurisdiction under.

Learned counsel for the petitioners argued that the respondents had filed the suit for declaration and for permanent injunction and that temporary injunction was refused to them as the civil court had come to a prima facie finding that the petitioners had paid valuable consideration for purchasing the disputed land and were possession. It was further urged that the Executive Magistrate while passing order under Section 145 and 146, Cr.P.C. should have respected the said order of the civil court. Learned counsel for the petitioners also argued that having failed in the civil court, the respondent got the proceedings instituted in the criminal court and by misrepresenting facts got the property attached and this was clearly an abuse of the process of court. I am of the opinion that was the above arguments have force. The civil court had passed a detailed order and its copy is Annexure P. 3. I am not going to believe that this order as not produced by the petitioners in the proceedings under Section 145 Cr.P.C. Surprisingly enough, the learned Executive Magistrate completely ignored it before passing the impugned order.

Further, the order under Section 146 appears to have been passed in a mechanical manner. The order reads as follows :

"Whereas an order under Section 145 Cr.P.C. has been passed by this court on 18.5.1982 requiring the parties to attend this court on 4.6.1982 at 10.00 A.M. and to put in written statement of their respective claim as respects the facts of actual possession of subject of dispute i.e. land bearing Khasra No. 49/3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 17, 18, 19, 23 to 25 situated in the revenue estate of Singh, Tehsil and District Jullundur exists between the parties.

And whereas on consideration of the documents put in by both the parties on 4.6.1982 and after hearing the parties I consider the case to be one of emergency. Accordingly, I order that the subject of dispute shall be attached till further orders. The Circle Revenue Officer, Jullundur is appointed as official Receiver to take possession of the property and arrange for disposal of the crops if any standing in the filed and also manage the property for so long as it remains under attachment."

Para 2 of the order shows that the Magistrate has considered some documents produced by the parties but it has not been discussed what documents were considered and at what conclusion he arrived at after consideration of the documents. In Sardari Lal and another v. The State of Punjab and others 1980 C.L.R. 249 it was remarked :

"Besides the order being bereft of the reasons the order passed under Section 146 Cr.P.C. is also questioned, being beyond the scope of said section. Section 146(1) Cr.P.C. is in the following terms :

146(1). If the Magistrate at any time after making the order under subsection (1) of section 146 considers the case to be one of emergency, or he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof :

Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.

It is plain from the language employed in the section that at any time after making the order under subsection (1) of section 145, a Magistrate can pass an order of attachment of the subject of dispute if it be a case of emergency. Therefore, he has to embark upon an enquiry as contemplated under Section 145 Cr.P.C. and then arrive at a decision. If his decision is in favour of one party and he declares him to be in possession of the land on the date when he passed the preliminary order, obviously, he will release possession in his favour and lift the attachment. But in case he decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was them in possession, he can attach the subjectmatter of dispute, or keep the subject matter of dispute still attached, if already under emergent attachment, until a competent Court has determined the rights of the parties thereto with regard to the person entitled to possession thereof. Obviously, at the initiation of the Proceedings, he is neither in a position to, nor is capable of deciding that neither of the parties was then in possession, or is unable to satisfy himself as which of them was then in such possession. It is patent that in the impugned order while passing order under Section 146 Cr.P.C, the learned Sub Division Magistrate has jumped to the satisfaction, that neither of the parties is in actual possession of the land in dispute. That does not seem to be the spirit of the section. He has nowhere recorded his satisfaction that it was a case of emergency, requiring him to attach the subjectmatter of the dispute pending enquiry before him. It appears to me that he overstepped his jurisdiction. On this score as well, the impugned order is unsustainable."

The above observations clearly apply to the present case. In the present case learned Magistrate has not at all mentioned in his order if he considered the question of possession over the land in dispute and whether he was unable to come to any finding. It is also not mentioned that how he came to the opinion that it was a case of emergency and, therefore, the subjectmatter should be attached.

The present case, when the civil court has prima facie given a finding that the defendants of that suit were in possession, the proper course for the learned Executive Magistrate was to institute proceedings under Section 107, Code of Criminal Procedure if he came to the conclusion that there was dispute between the parties which was likely to result in breach of peace. Reference can be made to Bhawan Pal v. Prem Kumar Jain and others 1982 CLR 121 wherein it was observed :

"Mr. Mukherjee learned counsel for the petitioners urges with some amount of vehemence that even in a situation as in the present case, the right course to be adopted by the Magistrate was if he otherwise felt satisfied to initiate proceeding under section 107 Criminal Procedure Code. For this proposition he again relies on two judgments of this Court in Des Raj and others v. Sat Pal alias Satnam and others, 1973 Chandigarh Law Report 223 and Bhan Singh etc. v. The State of Punjab etc., 1976 Chandigarh Law Reporter 85. The learned counsel for the respondents, however, points out that these two judgments of this Court stand overruled or at least dissented from by a later Division Bench of this Court in Mohinder Singh v. Shri Dilbagh Rai 1976 PLR 803. In the earlier two judgments what had been held was that once the parties to a litigation under Section 145, Criminal Procedure Code, has already gone to the civil Court for the determination of their rights with regard to the subjectmatter in dispute, the Magistrate would not have any jurisdiction to proceed in the matter under Section 145 Criminal Procedure Code. No doubt this proposition laid down in these judgments has not strictly been approved by the abovenoted Division Bench judgment, yet this judgment does not in any way dissent from or disagree with the ratio of the two judgments when these lay down that under Section 145, Criminal Procedure Code, a duty is enjoyed upon the Magistrate to see that the parties who have a civil dispute pending, do not take the law into their hands and commit a breach of the peace. This duty is to see that the parties actually go to a civil Court and not fight about the land or the house. If the parties have already gone there, the Magistrate has no longer any duty to perform except to proceed under Section 107, Cr.P.C. Actually subsection (10) of section 145 saves and impliedly suggests the following of such a course. To me also, it appears fair and judicious that in the given situation of this case the best course to be adopted by the Magistrate was to proceed under Section 107 instead of proceeding under Section 145, Cr.P.C."

Learned counsel for the petitioners pointed out that as mentioned in the grounds of revision, in the present case proceeding under Section 107 read with section 151 of the Code of Criminal Procedure have already been instituted against the parties.

In the light of the above discussion I am of the opinion that the Executive Magistrate was not justified to entertain proceeding under Section 145, Code of Criminal Procedure.

Consequently. I accept the present revision petition and quash the impugned order dated 9th June, 1982 passed under Section 146, Code of Criminal Procedure.