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PUNJAB & HARYANA HIGH COURT
K.S.Kumaran, J.
Balbir Singh
Versus
State Of Haryana
Criminal Misc. No. 11137 of 1996,
Decided On : MAY 23, 1997
SECTION 145 CR.P.C. - POSSESSION DISPUTE - INJUNCTION ORDER - CIVIL COURT JURISDICTION - MAGISTRATE'S AUTHORITY - SECTION 146 CR.P.C. - ATTACHMENT OF DISPUTED LAND - RECEIVER APPOINTMENT - SCOPE AND LIMITATIONS: 1. Where a Civil Court has granted an injunction in favor of a party restraining interference with possession of disputed land, a Magistrate cannot initiate proceedings under Section 145 Cr.P.C. or pass orders attaching the land and appointing a Receiver. 2. The Magistrate's authority under Section 146 Cr.P.C. to attach disputed land ceases once a competent Civil Court determines the rights of the parties, even if the determination is tentative and made at an interim stage, such as granting an injunction or appointing a Receiver. 3. The purpose of Section 146 Cr.P.C. is to prevent breaches of peace, and when a Civil Court has already passed an injunction order, there is no longer any likelihood of a breach of peace with regard to the subject of the dispute. 4. Proceedings under Section 145 Cr.P.C. and orders under Section 146 Cr.P.C. are not appropriate when a Civil Court has granted an injunction in favor of one party, as this would amount to an abuse of process and undermine the authority of the Civil Court.
Fact of the Case:
Petitioner's father, Jasmer Singh, was in possession of 12 kanals and 10 marlas of land out of a total of 46 kanals and 9 marlas. Respondents 3 to 9 wanted to interfere with his possession, leading Jasmer Singh to file a civil suit and obtain an injunction order restraining the defendants from interfering with his possession. Despite this, a Calendra under Section 145 Cr.P.C. was presented to the Sub Divisional Magistrate (SDM) on 6.12.1995, alleging a dispute between the parties and seeking attachment of the land and appointment of a Receiver. The SDM initiated proceedings, attached the land, and appointed the Tehsildar as Superdar without giving sufficient opportunity to the petitioner and other legal representatives of Jasmer Singh, who had died in the meantime.
Finding of the Court:
1. The SDM failed to consider the injunction order granted by the Civil Court in favor of Jasmer Singh, which restrained the respondents from interfering with his possession. 2. The SDM did not give sufficient opportunity to the petitioner and other legal representatives of Jasmer Singh to present their case. 3. The SDM's orders were passed long after the Civil Court's injunction order and after Jasmer Singh's death, indicating a lack of urgency and justification for the proceedings.
Issues: 1. Whether a Magistrate can initiate proceedings under Section 145 Cr.P.C. and pass orders attaching disputed land and appointing a Receiver when a Civil Court has already granted an injunction in favor of one party. 2. Whether the SDM's failure to consider the Civil Court's injunction order and provide sufficient opportunity to the petitioner and other legal representatives of Jasmer Singh rendered his orders unsustainable.
Ratio Decidendi: 1. The Magistrate's authority under Section 146 Cr.P.C. to attach disputed land ceases once a competent Civil Court determines the rights of the parties, even if the determination is tentative and made at an interim stage, such as granting an injunction or appointing a Receiver. 2. The purpose of Section 146 Cr.P.C. is to prevent breaches of peace, and when a Civil Court has already passed an injunction order, there is no longer any likelihood of a breach of peace with regard to the subject of the dispute. 3. Proceedings under Section 145 Cr.P.C. and orders under Section 146 Cr.P.C. are not appropriate when a Civil Court has granted an injunction in favor of one party, as this would amount to an abuse of process and undermine the authority of the Civil Court.
Final Decision: The petition was allowed, and the Calendra, impugned orders passed by the SDM, and consequential proceedings were quashed.
K.S.Kumaran, J.
1. Balbir Singh son of Jasmer Singh, Petitioner herein, has approached this court under Section 482 Cr.P.C. for quashing the Calendra under Section 145 Cr.P.C. dated 6.12.1995 (Annexure P.2), the order dated 29.5.1996 passed by the second-respondent-Sub Divisional Magistrate, Guhla (Annexure P.3) and also the order passed by him on the same date under Section 146 Cr.P.C. (Annexure P.4).
2. Sub Inspector-Station House Officer, Police Station Guhla presented a Calendra under Section 145 Cr.P.C. on 6.12.1995 before the Sub Divisional Magistrate, Guhla, arraying the respondents 3 to 9 herein namely Amar Singh son of Jangir Singh and others as the first party and Karnail Singh, Kehar Singh and Richpal Singh (respondents 10 to 12) herein as the second-party. He had alleged therein that the forefather of Jangir Singh (first-party), Lakhmir Singh, Balbir Singh, Karnail Singh sons of Jasmer Singh are mortgagees of the Government land mearusing 46 kanals 9 marlas as described in the Calendra, out of which certain portions as mentioned therein were distributed to the persons named therein. He has also mentioned that in respect of these lands while cultivator has been shown to be some person, the girdawari stands in the name of some other person. He further mentioned that on 27.11.1995 Lakhmir Singh and others with the intention to take possession of 12 Kanals and 10 Marlas of land were irrigating the fields while Amar Singh and others objected to the same since it was in their possession from the beginning on the basis of a family settlement. According to the Calendra a quarrel started and Lakhmir Singh got his statement recorded stating that there is a dispute between them and Amar Singh over the land measuring 12 kanals and 10 marlas regarding which cases are pending in Court, that on that day he, along with Jasmer Singh, Bharpur Singh and Charan Singh, was irrigating their fields, that in the meanwhile Amar Singh, Jorawar Singh, Naseeb Singh and others came and attacked in which Jasmer Singh died. It has further been stated in the Calendra that on this statement, Case No. 120 dated 27.11.1995 under Sections 302, 324, 148 and 149 IPC was registered at Police Station Guhla and the accused have been arrested. It has also been stated in the Calendra that both the parties are interested in this land measuring 12 kanals and 10 marlas, which is adjoining the abadi deh and both of them want to be in possession of the land. It has further been stated that the dispute is over the whole of the land measuring 46 kanals and 9 marlas, and therefore, a Receiver be appointed since an unfortunate incident had occurred, and in future also there is every apprehension of unfortunate incidents. So saying the Sub Inspector/SHO requested that proceedings under section 145 Cr.P.C. may be initiated and during the pendency of these proceedings an order under Section 146 Cr.P.C. be made. On the basis of this Calendra (Annexure P.2) the SDM Guhla initiated proceedings under Section 145 Cr.P.C. and also passed an order attaching the lands and appointing a Receiver. This order is dated 29.5.1996 and it mentions that both the parties were summoned, that the Legal Representatives of Jasmer Singh were also summoned, that Balbir Singh appeared in the Court and the rest of the legal representatives did not appear, that parties 1 and 2 filed their written replies while no reply was filed by legal representatives of Jasmer Singh, and that counsel for the parties were heard.
3. After hearing the counsel, the SDM observed that there is great tension between the parties for the possession and cultivation of the dispute land because a quarrel took place on 27.11.1995 regarding possession of the land in which Jasmer Singh had died, that the FIR is on the file, that the counsel also admitted this fact, that the parties have been charge-sheeted under Sections 107/151 Cr.P.C. because of this land, that the land in dispute is lying vacant and tension betwe
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