Tarlochan Singh vs Jaspal Singh Chaudhary

Harmohinder Kaur Sandhu, J.

Tarlochan Singh and others have filed this petition under Section 482 CrPC for setting aside the order dated 15.5.1991 passed by the learned Sessions Judge, Ambala Annexure P/1, order dated 11/12.7.1990 passed by Sub Divisional Magistrate, Ambala Annexure P/2 and consequently the quashing of the proceedings initiated against the petitioners under Section 145 CrPC.

Proceedings before the Sub Divisional Magistrate were initiated on the basis of the Calendar Annexure P/3 submitted by Assistant Sub Inspector Shingara Singh. The brief facts as given in the calender are that House No. 3929/2, situated at Ambala City was purchased by Lachhmi Devi mother of Jaspal Singh respondent in the year 1965. Lachhmi Devi had three sons and two daughters. Two of her sons had died and only Jaspal Singh was alive. Her daughter Gurbax Kaur was married to Ram Singh and other daughter Gurcharan Kaur was married to Jodh Singh. In the year 1974 Lachhmi Devi executed a Will in respect of her house in favour of her son Jaspal Singh and his wife Jagmohan Kaur. On the eastern side of the house Gurcharan Kaur resided with her family and on the western side Gurbax Kaur lived with her family. The main entrance door of the House was situated towards the North and this was the only entrance to the house. After the death of Lachhmi Devi, Jaspal Singh took possession of the house but since he was living away from Ambala Cantt., the house was looked after by his brotherinlaw Ram Singh, who was his attorney. A public school functioned in this house till 31.3.1988. On 19.4.1988 Gurcharan Kaur by deceitful means showing herself to be the owner executed a deed regarding the entrance room in favour of Maksudan Lal. On 2.5.1988 when Gurbax Kaur went for cleaning the house Maksudan Lal and Tarlochan Singh forcibly snatched a bunch of keys from her. They broke open the door and entered the house. A report regarding this incident was made at the police station by Jaspal Singh and case FIR No. 257, under Sections 420, 448, 451 I.P.C. was registered at Police Station, Ambala City. During investigation Jaspal Singh asserted his title over the house while Tarlochan Singh, Gurcharan Kaur and Maksudan Lal claimed themselves to be the owners of the house and entrance room. As both the parties asserted their respective rights, the entrance room was sealed and calendar was presented for initiating proceedings under Section 145 CrPC against Jaspal Singh Party No. 1, Tarlochan Singh, Gurcharan Kaur and Maksudan Lal Party No. 2.

After notices were issued to the parties and parties submitted their respective claims and evidence, the SubDivisional Magistrate, Ambala passed order Annexure P/2 holding, that Jaspal Singh was in peaceful possession of the entrance room and remaining portion of the building so it was ordered that possession of the premises and ''Deodi'' was restored to him. Against this order Gurcharan Kaur and Maksudan La filed a civil suit which was dismissed. Tarlochan Singh and others also filed a revision petition and that too was dismissed vide order Annexure P/1.

The petitioners alleged that the impugned orders were liable to be set aside as the Sub Divisional Magistrate had not applied his mind before issuance of notice to them and he acted mechanically. He did not record reasons in writing that he was satisfied that there existed a dispute which was likely to cause breach of peace and, thus, mandatory provisions of Section 145 CrPC were not complied. It was further pleaded that civil litigation was already pending between the parties regarding possession of the premises and when Civil Court was seized of the matter proceedings under Section 145 CrPC should not have been initiated. The property in question was jointly owned by the parties and it had not been partitioned amongst the legal heirs of Smt. Lachhmi Devi. Proceedings under Section 145 CrPC with respect to joint property were also not maintainable.

In the reply filed by the respondents a preliminary objection was raised by the respondents that a petition under Section 482 of Code of Criminal Procedure was barred as the impugned order Annexure P/2 had been assailed in a civil court and also a revision petition was filed against that order. The order had already been executed and Jaspal Singh had been put in possession and right to challenge did not survive. All the other allegations made in the petition were repelled.

At the time of arguments the main contention raised by the learned counsel for the respondents was that the order passed by the Sub Divisional Magistrate was assailed by petitioners No. 2 and 3 by filing a civil suit and that suit had been dismissed. Copy of the plaint in that suit was Annexure R9 and moreover when the order was also assailed by way of revision petition the second revision was barred at the instance of the petitioners and the petitioners could not impugn that order by filing a petition under Section 482 CrPC. In support of his contention the learned counsel referred to the case of Rajan Kumar Manchanda v. State of Karnataka, 1990 (Suppl.) Supreme Court Cases 132. In this case it was observed :

"Where a revision petition is dismissed by the Sessions Court a second revision would not lie to the High Court. Merely, by saying that the jurisdiction of the High Court for exercise of its inherent powers was being invoked, the statutory bar could not have been overcome. If that was to be permitted, every revision application facing the bar of Section 397(3) of the Code could be labelled as one under Section 482."

The question whether inherent powers under Section 482 CrPC could be invoked at the instance of the party whose revision had been dismissed by the Sessions Judge was considered by the Apex Court recently in Dharampal and others v. Smt. Ramshri and others, 1993(1) Recent Criminal Reports 696 (SC) : 1993(1) CLR 402 . In this case it was held :

"The question that falls for our consideration now is whether the High Court could have utilised the powers under Section 482 of the Code and entertained the second revision application at the instance of the first respondent. Admittedly the first respondent had preferred a criminal application being Criminal Revision No. 180/78 to the Sessions Court against the order passed by the Magistrate on 17.10.1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14.5.1979. Section 397(3) bars a second revision application by the same party. It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of first respondent. On this short ground itself the impugned order of the High Court can be set aside."

In the present case after the Sub Divisional Magistrate, Ambala determined the question of possession vide order Annexure P/2 and ordered that possession be delivered to Party No. 1, namely, Jaspal Singh, the present petitioners filed a revision petition which was dismissed by the learned Sessions Judge, Ambala on 15.5.1991 as being without any merit. Thereafter the possession was also delivered in accordance with the orders passed by the Sub Divisional Magistrate. As no second revision was competent against the order of the Sub Divisional Magistrate, the inherent powers of this Court could not be invoked by labelling the proceedings was under Section 482 CrPC. The petition is, therefore, liable to be dismissed on this ground alone and the same is accordingly dismissed.