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PUNJAB & HARYANA HIGH COURT
Swatanter Kumar, J.
Mahant Kesar Dass
Versus
Gurdev Singh Alias Gurdev Dass And Others
Criminal Misc. Petition No. 8879 of 1995,
Decided On : OCTOBER 10, 1995
CRIMINAL PROCEDURE CODE - SECTION 146 - SCOPE AND AMBIT - APPOINTMENT OF RECEIVER TO PROTECT PROPERTY IN DISPUTE - CONDITIONS PRECEDENT - JURISDICTION OF MAGISTRATE - CONFLICT WITH CIVIL COURT ORDERS.
Fact of the Case:
A dispute arose between two parties over the possession and ownership of land belonging to a Dera. The land was managed by Mahant Uttam Dass, who appointed Mahant Kesar Dass as his successor. After Mahant Uttam Dass's death, Mahant Kesar Dass claimed ownership of the land, while Gurdev Dass, another Chela of Mahant Uttam Dass, also claimed ownership. The Sub-Divisional Magistrate, relying on a police report, issued a notice under Section 145 of the Code of Criminal Procedure (CrPC) to both parties. The Additional Sessions Judge, on revision, found that neither party had established lawful possession of the land and appointed a Receiver to manage the property till the decision of the civil suit pending between the parties.
Finding of the Court:
The High Court held that the Additional Sessions Judge had jurisdiction to pass the impugned order under Section 146 of the CrPC, as the proceedings under Section 145 of the CrPC had been concluded and no definite finding could be given in favor of either party. The Court further held that the order of the Additional Sessions Judge did not suffer from any jurisdictional error or abuse of process of Court and was necessary to prevent a breach of peace and maintain law and order.
Issues: 1. Whether the Additional Sessions Judge had jurisdiction to pass the impugned order under Section 146 of the CrPC, given that a civil suit was pending between the parties? 2. Whether an order under Section 146 of the CrPC can be passed and is effective only during the pendency of the proceedings under Section 145 of the CrPC?
Ratio Decidendi: 1. The provisions of Sections 145 and 146 of the CrPC frame a scheme in itself, with the object of preventing a breach of peace or maintenance of law and order till the rights of the parties are determined by a court of competent jurisdiction. 2. The Magistrate exercising powers under Section 145 of the CrPC has a restricted jurisdiction and can only determine the lawful possession of a party in consonance with the provisions of the Code. 3. Section 146 of the CrPC comes into play where, after passing a final order under Section 145 of the CrPC, no definite finding can be given in favor of a party or there are compelling circumstances necessitating the appointment of a Receiver or attachment of the property. 4. An order under Sections 145/146 can be passed by the Magistrate directing the parties to maintain a particular situation till their rights are determined by a court of competent civil jurisdiction.
Final Decision: The High Court dismissed the petition, holding that the Additional Sessions Judge had jurisdiction to pass the impugned order under Section 146 of the CrPC and that the order did not suffer from any jurisdictional error or abuse of process of Court.
Key Points: - The judgment explains that Sections 145 and 146 form a scheme to prevent breach of peace until rights are determined by a competent court, with 146 aiding when no definite finding is possible after 145. (!) - It held that the Additional Sessions Judge had jurisdiction to appoint a Receiver under 146 when 145 proceedings had concluded without a definite finding, to protect property pending civil suit outcomes. (!) (!) - It discusses the relationship between pending civil suits and criminal proceedings under 145/146, and that courts should avoid conflicting orders with civil court determinations, though exceptional circumstances may justify interim protective actions. (!) (!) - The petition was dismissed, affirming the validity of the 146 order and rejecting lack of jurisdiction or abuse of process claims. (!) - The presumption and potential rebuttal of revenue record entries in possession determinations are noted in the context of proceedings under 145/146. (!)
Swatanter Kumar, J.
1. The ambit and scope of Section 146 of the Code of Criminal Procedure is the basic question that falls for consideration in this petition.
2. The facts giving rise to three questions are that the learned Additional Sessions Judge, Sangrur, while disposing of the revision petition vide his order dated 21st February, 1995 appointed the Receiver to protect the property in dispute till the question pending before the Civil Court was decided. There was a Dera of Udaseen in Village Kanganwal, Tehsil Malerkotla, District Sangrur, which was managed by Mahant Uttam Dass as Mahant of the Dera. The property of the Dera was also situated at Villages Mithewal, Dehleez Khurd, Manakwal and other villages. According to the petitioners Mahant Uttam Dass was looking after and managing the property through Joginder Dass who was in possession of the land and cultivating the same. The entries to this effect were made in the Khasra Girdawaris. During the life time of Mahant Uttam Dass, he had appointed his Chela Mahant Kesar Dass as his successor and nominated him as Mahant of the Dera which was known to the public at large. Mahant Uttam Dass is stated to have executed a registered Will dated 6th December 1991 in favour of Mahant Kesar Dass nominating him as Mahant of the Dera.
3. Mahant Uttam Dass died on 9th December 1991 and in his place according to his Will, Mahant Kesar Dass was nominated as Mahant of the Dera. The mutation of the land in question was effected in the name of Mahant Kesar Dass on 16th June 1992 while entries in the khasra girdawaris continued to be in the name of Joginder Dass since 1987. The villagers constituted a committee consisting of seven members for management of the property of the Dera. This committee had appointed Gurdev Dass, Chela of Uttam Dass, as Mahant during his life time. The claim of other party is that Kesar Dass was only relative of Uttam Dass, his nephew and properly appointed Mahant was Gurdev Dass. On these facts, Gurdev Dass claims himself to be in possession of the land belonging to the Dera while Kesar Dass and Joginder Dass claim their possession and ownership of the land of the Dera on the facts stated supra and entries in the khasra girdwaries.
4. Because of the clash between the parties, there was apprehension of breach of peace and commission of crime, the report was received from the police. On receipt of the report of the police, the Sub-Divisional Magistrate, Malerkotla, while relying upon the said report, issued notice under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) to both the parties. Thereupon, the parties appeared and raised their respective claims before the Sub-Divisional Magistrate, Malerkotla, who, vide his order dated 25th April 1993, found that though the khasra girdawaries and other revenue record was in the name of Joginder Dass, in fact, the possession on the plot was that of Gurdev Dass and, consequently, directed and declared the possession of Gurdev Dass, Chela of Uttam Dass, over the land. Against this order, Kesar Dass and Joginder Dass filed a revision before the Additional Sessions Judge. The learned Sessions Judge on the basis of the records did not agree with the findings that possession of Gurdev Dass was a legal possession 60 days before the initiation of the proceedings under Section 145 of the Code. The land admittedly belonged to the Mahant Uttam Dass, Head of Dera Kanganwal. The dispute seriously arose between the parties with regard to the fact who is the Chela of Mahant Uttam Dass, and, consequently, a successor, including to the lands in question. This question of succession to the Gaddi was pending before the Civil Courts and other ancillary disputes with regard to the lease of the land being granted in favour of one of the parties was also sub judice before the Civil Courts. The learned Sessions Judge while rejecting the claim of both the parties held that none of the parties was able to
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