Proceedings under Sections 145 and 146 of the CrPC are not barred by the pendency of a civil suit, and an emergency for attachment can be established based on a substantial dispute regarding actual possession of land.

A.P.Chowdhri, J.

1. This is a petition under Section 482 of the Code of Criminal Procedure (hereinafter referred as the Code), for quashing order Annexure P-2 dated 15.7.1988 under Section 146 of the Code passed by Sub Divisional Megistrate, Kaithal, attaching the lead in question and appointing a receiver thereof till the decision of that the proceedings under Section 145 of the Code. Brief facts of the case are agricultural and 19 kanals 15 marla by ad measurement situated at village Reseotpura belonged to one Smt Bugari. The case of the petitioner, Mac Singh, is that the said Smt. Bugari through her husband Dharam Singh, under power of attorney from him, leased out the said land on 16.10.1979 for 99 years in favour of the petitioner. The lease deed is registered. The petitioner claims that he was delivered possession of the land. The private respondents No. 2 to 4 Bidhi Chand Chand etc. obtained a sale deed in their favour on 28.4.1980 with regard to the same land, having been executed by Ram Kala, brother of Smt. Bugari, under a power of attorney, from her. On, the basis of the said, sale deed, the private respondents No 2 to 4 sought to interfere in possession of the petitioner. They filed civil suit but failed to obtain any temporary injunction against the petitioner. They, therefore, got initiated proceedings under Section 145 of the Code before the Sub Divisional Magistrate and also succeeded in obtaining an order of attachment under Section 146 of the Code. According to the petitioner, he had been in possession of the land and it was to prevent him from harvesting the crop which he had sown that the respondents resorted to proceedings under Sections 145/146 of the Code and this was an abuse of the process of the Court.

2. The petition not been resisted by private respondents No. 2 to 4.

3. Shri Chander Singh, learned counsel for the petitioner, put forward two contentions : (i) admittedly, civil suit is pending between the parties. That being so, parallel proceedings before the Sub Divisional Magistrate cannot be continued. Reliance was placed on Ram Sumer Puri Mahant v. State of U.P. and others, 1985(1) Recent Criminal Report 278 : AIR 1985 Supreme Court 472, (ii) that no case of emergency has been made out and, therefore, the Sub Divisional Magistrate had no jurisdiction to pass the order under Section 146 of the Code.

4. Shri Akash Jain, learned counsel for the private respondents on the other-hand, contended that the pendency of the civil suit is not an absolute bar to the proceedings under Section 145 of the Code and in the facts and circumstances of the present case and to prevent breach of peace between the parties, it was necessary that the said proceedings were continued before the Sub Divisional Magistrate. He further contended that necessary emergency for passing an order of attachment is clearly made out from the report of the police dated 5-1-1988 Annexure. P 1 under Section 145 of the Code and the order passed by Sub Divisional Magistrate dated 15.7.1988 Annexure P-2.

5. I have given anxious consideration to the respective submissions of the learned counsel. It will be useful to briefly state the claim made by the petitioner, on the one hand, and the private respondent on the other hand, with regard to being in actual physical possession of the land in question This would go a long way to show that there exists a substantial dispute between the parties and there, can be reasonable apprehension of breach of peach unless necessary preventive action by way of proceedings under Sec. 145 as well as under Section 146 of the Code arc. taken. The claim of the petitioner to be in possession is on the basis of lease deed dated 16.10.1979 in which he claims that possession was delivered to him by the lessor. The learned counsel for the petitioner emphasised that the lease deed was registered document and it was recited therein that possession of the land had been delivered to the lessees. The claim of priva