Banarsi Dass v. Nachattar Singh

Mr. L.S.Sidhu, Advocate, for the respondent. *** GURDEV SINGH, J. Banarsi Dass, petitioner, has preferred this revision against the order dated 4.8.2009 passed by Additional Sessions Judge (Ad hoc), Mansa, vide which he accepted the revision preferred by Nachattar Singh- respondent, against the order dated 29.8.2008 passed by Sub Division Magistrate, Sardulgarh, initiating the proceedings under Section 145 of the Code of Criminal Procedure (hereinafter referred to as “the Code”), in respect of the land in dispute, comprising of Khasra Nos. 70//17/1(4-0), 17/2(4-0) Khewat No. 174/175 situated in village Bhalaike and appointing Naib Tehsildar, Jhunir, as Receiver, after attaching that land. The facts, in brief, are that the petitioner was recorded to be the Crl. Revision No. 2514 of 2009(O&M) -2- owner of the land in dispute in the revenue record whereas the respondent was recorded to be in cultivating possession thereof. Both the parties were claiming their ownership on that land. The Officer In Charge of Police Station, Jhunir, apprehended the breach of peace and accordingly presented his Calendera before Sub Divisional Magistrate for initiation of proceedings under Section 145 of the Code and the appointment of Receiver under Section 146 of the Code. Both the parties were called upon to file their respective claims. The petitioner filed his reply averring therein that he was the owner and in possession of the land in dispute and respondent had no concern therewith and wanted to take possession thereof forcibly with the help of his brother-Mohinder Singh. He also stated in his reply that he had filed the civil suit in the Court at Mansa, which was decided in his favour on 23.10.2007 and that the respondent never came in possession of the land at any point of time. He also averred in his reply that the respondent filed a false application before Naib Tehsildar, Sardulgarh, for entering the girdawari in his name, which was dismissed by the Collector(Civil), Sardulgarh, vide order dated 22.10.2007. He also came up with the plea that the respondent tried to harvest the crop standing in the land in dispute, forcibly, regarding which complaint was filed under Sections 379 and 506 of the Code before Judicial Magistrate, Sardulgarh. The respondent also filed his reply. He pleaded therein that the petitioner was a clever commission agent whereas, he is poor and illiterate person. The petitioner got this land transferred in his name by means of registered document by means of cheating and was never in possession thereof. He along with his brother, is coming in possession of this land from the very beginning. Even the Assistant Collector Second Grade(Naib Tehsildar)found him to be in Crl. Revision No. 2514 of 2009(O&M) -3- possession of this land and passed his order on 25.5.2007 on the basis of local inspection, which was done on 22.3.2007 in the presence of respectable persons. The petitioner tried to take forcible possession, as a result of which, an altercation took place and FIR No. 41 dated 30.3.2005 was registered against him under Sections 323, 324, 326 and 427 of the Code. It was as a counter blast that, the petitioner filed complaint against him and his brother. Civil suit regarding this land has also been pending between the parties. He has also preferred an appeal against order of the Collector dated 22.7.2007. After hearing learned counsel for both the sides and going through the records of the case, Sub Divisional Magistrate, correctly passed impugned order, attaching the land in dispute, and appointing Naib Tehsildar, Jhunir, as Receiver, for taking possession of the land and for harvesting the crop standing therein. Notice of the revision was given to the respondent. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioner that Sub Divisional Magistrate was required to see if there was apprehension regarding the breach of peace and once he recorded that satisfaction, he was bound to initiate proceedings under Section 145 of the Code. After taking into consideration the stand of both the parties and evidence produced before him, he came to the correct conclusion that there was apprehension of breach of peace. He passed correct order of attaching the land in dispute and appointing a Receiver under Sections 145 and 146, respectively, of the Code. The Additional Sessions Judge committed an illegality while passing that order without going into the fact that there was apprehension of the breach of peace, by observing that the question regarding the Crl. Revision No. 2514 of 2009(O&M) -4- possession stands settled by civil court. Even if such a finding had been recorded by the civil court, even then the proceedings under Section 145 of the Code could not have been set aside without recording a finding that there was no apprehension of breach of peace. In support of his contention he has cited Soni and others v. State of Haryana and others 1983 PLR

615. On the other hand, it was submitted by learned counsel for the respondent that the question regarding the possession of the land in dispute, already stands settled by civil court. Parallel criminal proceedings regarding the same question cannot be permitted. Once the rights of the parties had been settled by the civil court, proceedings under Section 145 of the Code are not competent. Moreover, the question in dispute-cannot be decided during the proceedings under Section 145 of the Code, and the same is to decided by the civil court. The initiation of proceedings under Section 145 of the Code were the abuse of the process of the Court and the order passed by Sub Divisional Magistrate was correctly set aside by Additional Sessions Judge. There is no ground for upsetting the impugned order, which does not suffer from any such illegality or infirmity. He has placed reliance on Harnam Singh v. Mall Singh 2002(4) RCR(Criminal) 243 and Ram Sarup Puri Mahant vs. State of U.P. 1985 (1) RCR (Criminal) 278. The proceedings under Section 145 of the Code can be initiated by the Executive Magistrate, if he is satisfied from the report of a police officer or upon other information received that a dispute likely to cause a breach of peace exists concerning any land within his local jurisdiction. In the present case, the Sub Divisional Magistrate recorded in Crl. Revision No. 2514 of 2009(O&M) -5- his order that there was dispute between the parties over the land and there was sufficient apprehension of breach of peace. That order was passed after following the procedure as laid down in that Section. It was not disputed at the time of arguments that the rights of the parties regarding the possession of the land have already been settled by the civil court. The petitioner had been held to be in possession of the land in dispute. It was held in Harnam Singh's case (Supra) that where the rights of the parties have been settled by a civil court, proceedings under Section 145 of the Code are not competent after that decision. It was held by the Apex Court in Ram Sarup Puri Mahunt's case (supra) that when a civil litigation is pending regarding the property, wherein the question of possession is involved and has been adjudicated, there is no justification for initiation of parallel criminal proceedings under Section 145 of the Code. It was also held therein that there is no scope to doubt or dispute the proposition that the decree of the civil court is binding on the criminal court in the proceedings under Section 145 of the Code. Therefore, once the question of possession had been decided by the civil court, no such order could have been passed under Section 145 of the Code. It was correctly held by the Additional Sessions Judge in the impugned order that the order passed by the Sub Divisional Judicial Magistrate attaching the land in dispute, and appointing the Receiver, was not sustainable in the eyes of law. The facts of Soni's case (Supra) were different. Only preliminary order under Section 145 of the Code had been passed in that case. It was held therein that in case of emergency, a Magistrate may attach property at any time after making a preliminary order under Section 145(1) Crl. Revision No. 2514 of 2009(O&M) -6- of the Code. The only provision for stopping the proceedings and cancelling the preliminary order is to be found in Section 145(5) and it can be on the ground that there is no longer any dispute likely to cause a breach of peace. An emergency is the basis of the attaching under the first limb of Section 146(1) of the Code and if there is an emergency, no one can say that there is no dispute likely to cause a breach of peace. It was also held therein that even if the civil court had passed an order of injunction in favour of the petitioners regarding the same subject matter, between the same parties, the jurisdiction of criminal court under Section 145 of the Code cannot be restrained. In view of the judgment of the Supreme Court, referred to above, it cannot be held that even after a categorical finding recorded by the civil court regarding the possession, the proceedings under Section 145 of the Code can be initiated or continued merely by resorting to the apprehension regarding the breach of peace. The finding of the civil court is to be respected by the criminal court also. How a person found to be in possession of the specific property by the civil court, be dispossessed by resorting to Section 145 of the Code? It is only in case of the dispute regarding the possession and apprehension of breach of peace, that such an order can be passed under Section 145 of the Code. After a finding is recorded by the civil court regarding the possession, such a dispute cease to exist and there can be no resort to the proceedings under Section 145 of the Code. The order passed by Additional Sessions Judge does not suffer from any such illegality nor the same can be said to be incorrect nor it can be said that the propriety required that such a finding should not have been Crl. Revision No. 2514 of 2009(O&M) -7- recorded. Therefore, the impugned order cannot be set aside while exercising the revisional jurisdiction. Petition is dismissed accordingly. (GURDEV SINGH) JUDGE

24.2. 2010 PARAMJIT