Tarlok Singh and ors.. vs Baldev Singh and anr..

Harmohinder Kaur Sandhu, J.

The present petition has been filed under section 482 of the Criminal Procedure Code (Code for brevity) for quashing of the application under section 145 of the Code Annexure P/1), order passed by SubDivisional Magistrate, Pathankot dated 21111990 under section 146 of the Code (Annexure P/2) and all the proceedings emanating therefrom.

The dispute in the present case related to 98 kanals 2 marlas of land situated in village Mutfarka Tehsil Pathankot, fully described in para No. 2 of the petition which Jagdish Mittar Puri, Vijay Puri etc. agreed to sell to Baldev Singh respondent vide agreement dated 461982. Baldev Singh and his copurchaser Sant Singh paid Rs. 50,000/ as earnest money and alleged to have taken possession of the land on 4.6.1989. Tirlok Singh and other petitioners as well as respondents No. 3 to 9 contended that they were in continuous cultivating possession of the disputed land since 1982 and they filed a civil suit for getting a declaration to that effect. In that suit a receiver was appointed by the civil court and an order of injunction was passed. In the meantime Baldev Singh moved an application on 19121989 before the police that proceedings under section 145 of the Code should be initiated. Sub Inspector Gurbachan Singh filed a Calender in this behalf at which Sub Divisional Magistrate directed the parties to appear before him and, at the same time appointed Tehsildar as a receiver of the disputed land. On 26.4 1990 when the Sub Divisional Magistrate came to know about the injunction order issued by the civil Court he came to the conclusion that there was no apprehension of breach of peace and then dropped the proceedings under section 145 of the Code vide his order passed on that day. Baldev Singh filed a revision petition against that order which was dismissed by the learned Sessions Judge, Gurdaspur on 6.9.90. Thereafter the civil suit filed by the petitioners and others was withdrawn.

On 20.11.1990 Baldev Singh again moved an application under sections 145 and 146(1) of the Code alleging that he was a resident of village Kaunterpur which was at a distance of 30 kilometres from village and in his absence, his crop was destroyed by Tirlok Singh and others who let loose their cattle. There was apprehension of breach of peace. On the basis of this application the learned Sub Divisional Magistrate Pathankot passed order Annexure P/2 whereby he invoked section 145 of the Code and directed the parties concerned to appear and put in their respective claims in respect of their contentions on 21.12.1990. Property was also attached and Shri Wirsa Singh Malli, Naib Tehsildar, Pathankot was appointed as a receiver which led the petitioners to file this writ petition.

In the reply filed to the petition Baldev Singh respondent pleaded that the land in question belonged to Jagdish Mittar and others and they had entered into an agreement dated 4.6.1989 to sell the same to him and after receiving a sum of Rs. 50,000/ as part consideration they surrendered possession in his favour. A civil suit, was also pending between Sher Singh and others and Jagdish Mittar Puri and others in which order of status quo regarding possession had been passed. That civil suit was withdrawn by the petitioners on 3.8.1991 as the petitioners knew that they could not make out a legally sustainable case in civil Court. The petitioner had no right to pray for quashing of proceedings under section 145 of the Code after the withdrawal of the civil suit.

During the pendency of this petition an application was filed to produce some documents on record which was allowed and the petitioners produced copies of the orders passed in three suits, on application for grant of temporary injunction on 20 4.1991 by Shri B. S. Mehndiratta, Additional Senior Sub Judge, Pathankot. These orders show that Tek Singh Sher Singh and Tirlok Singh filed three separate suits against Jagdish Mittar Puri, Baldev Singh and others for declaration to the effect that they were in continuous cultivating possession as tenants at will of the land in question. They also prayed for grant of temporary injunction and the learned trial Court passed an order of statusquo regarding possession till 10.10.1991. This order was passed ex parte and notice was given to the defendants in that suit to appear and show cause as to why the order should not be made absolute.

I have heard the counsel for the parties. It was argued on behalf of the petitioners that when a civil suit was pending between the parties about the same subject matter which is in dispute before a criminal Court and the Civil Court has passed an order of status qua, then nothing remains to be done "by the criminal Court and there remains no propriety or even scope for invoking the provisions of section 145 of the Code. It was further contended that once the proceedings under section 145 of the Code had been dropped by the Sub Divisional Magistrate and even a revision petition filed by Baldev Singh against that order was dismissed by the learned Sessions Judge, Gurdaspur, there was hardly any occasion for Baldev Singh to again present application Annexure P1 for initiating proceedings under sections 145 and 146(1) of the Code.

The learned counsel for the respondents, on the other hand, contended that the petitioners had obtained an order of statusquo regarding possession from the Civil Court and the present petition was filed on 6.5.91 for quashing the proceedings under Section 145 of the Code. After obtaining a stay of auction proceedings of standing crop from this Court, they withdrew the civil suit filed by them against the vendors. Thus, the Civil Court was not seized of any matter. Certainly there was a dispute between the parties regarding possession of land, which could result in breach of peace and in these circumstances the proceedings which are being taken by SubDivisional Magistrate could not be quashed. As regard''s the copies of the orders placed on record of this case by the Petitioners it was submitted that these orders were obtained ex parte and the Court merely directed; the parties to maintain statusquo regarding possession and in these circumstances the impugned orders should not be quashed. In support of his contention the learned counsel placed reliance on the cases of Harbans Singh and another v. Bholo and others, 1985(1) Recent Criminal Reports 505 and Mohinder Singh v. Dilbagh Rai, 1976 PLR 803. In this later authority it was observed :

"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 settled by the civil Court."

In the above mentioned authority the Division Bench of this Court was of the view that three types of orders could be envisaged to be passed by the civil Court (i) the appointment of a receiver to manage the properties in dispute; (ii) the restraining of one of the parties from interfering with the possession of the other party during the pendency of the suit about which the civil Court primafacie feels satisfied: and (iii) the maintenance of statusquo about the possession of the property during the pendency of the case. While dealing with the third type of cases it was observed :

"Maintenance of statusquo during the pendency of the civil suit is a situation in which civil Court does not primafacie feels satisfied about any party being in possession of the subject matter of the suit. In such cases where both parties claim possession dangerous situation can develop with the anxiety of both or any 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 peace. If they act in such circumstances and the Magistrate attaches the subject matter of the dispute under section 145 Cr.P.C. then he would be acting to defend the maintenance of the status quo as ordered by the civil Court."

In the instant case earlier too proceedings were initiated under section 145 of the Code and attachment of the property was ordered. When the SubDivisional Magistrate learnt about the fact that the civil Court was seized of the matter the proceedings were dropped and that order was maintained in revision. Since the question of possession was not decided by the civil Court, fresh proceedings under section 145 of the Code were initiated. Apprehending breach of peace the Sub Divisional Magistrate passed order dated 21.11.1990. Subsequently the civil suit was withdrawn by the petitioners Three more civil suits were filed after the passing of the impugned order, in which ex parte order of statusquo was obtained on 2091991 i.e. more than a year ago. Till today civil Court has not given any finding as to which of the parties is primafacie in possession of the land. The order of statusquo which was passed subsequent to the passing of the impugned order is no bar to the proceedings under section 145 Cr.P.C. Similar view was expressed in the case of Harbans Singh and another (supra).

Keeping in view the conduct of the petitioners, who withdrew the civil suit, after obtaining a stay order from this Court, and their resorting to the civil remedy again at their will, I find no ground for quashing the application. Annexure P/1 and order Annexure P/2. The petition is, therefore, dismissed.