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PUNJAB AND HARYANA HIGH COURT
K.K. Srivastava, J.
Lord Shiva Charitable Trust - Petitioners
Versus
State of Haryana - Respondents
Criminal Misc. No. 5496-M of 1997.
Decided On : 24 December, 1998
CRIMINAL PROCEDURE CODE - SECTIONS 145 AND 146 - SATISFACTION OF MAGISTRATE - COMPOSITE ORDER - EMERGENCY - APPOINTMENT OF RECEIVER - DISPUTE LIKELY TO CAUSE BREACH OF PEACE - POSSESSION - INTERPRETATION.
Fact of the Case:
Petitioner, a charitable trust, sought to quash orders passed by the Sub Divisional Magistrate (SDM) under Sections 145 and 146 of the Criminal Procedure Code (CrPC) in respect of proceedings initiated on a complaint alleging a dispute over possession of certain properties. The petitioner contended that the SDM failed to follow the proper procedure, did not record satisfaction regarding the apprehension of breach of peace, and wrongly appointed a Receiver without first passing an order under Section 145(1) CrPC.
Finding of the Court:
The Court held that the impugned orders were contrary to law and set them aside. It found that the SDM did not record his satisfaction about the apprehension of breach of peace and did not pass a separate order under Section 145(1) CrPC before proceeding to appoint a Receiver under Section 146(1) CrPC. The Court also noted that the factual controversy relating to the disputed property was highly disputed and could only be adequately dealt with by a Civil Court.
Issues: 1. Whether the SDM erred in passing a composite order under Sections 145(1) and 146(1) CrPC without first recording satisfaction about the apprehension of breach of peace and passing a separate order under Section 145(1) CrPC? 2. Whether the SDM erred in appointing a Receiver without first determining the issue of possession?
Ratio Decidendi: 1. The Court held that the SDM erred in passing a composite order under Sections 145(1) and 146(1) CrPC without first recording satisfaction about the apprehension of breach of peace and passing a separate order under Section 145(1) CrPC. It relied on the settled law that the satisfaction of the Magistrate that action under Section 145(1) CrPC is called for must necessarily precede the finding that the case is of an emergent nature requiring attachment of property under Section 146(1) CrPC. 2. The Court held that the SDM erred in appointing a Receiver without first determining the issue of possession. It noted that the factual controversy relating to the disputed property was highly disputed and could only be adequately dealt with by a Civil Court.
Final Decision: The Court allowed the petition and set aside the impugned orders passed by the SDM under Sections 145 and 146 CrPC.
K.K. Srivastava, J. - This is a petition filed by Lord Shiva Charitable Trust through trustee/Secretary, Shri Som Parkash son of Shri Inderjit, Shri Desh Kamal son of Shri Banwari Lal and Shri Som Parkash son of Shri Inderjit aforesaid all residents of village & Post Office Jandwala Bishnoian, Tehsil Dabwali District Sirsa (Now all residents of Gali Bombay Wali, Rori Bazar, Sirsa) seeking quashing of orders dated 7.2.1997 passed by Sub Divisional Magistrate Sirsa, respondent No. 2, in respect of the proceedings under Sections 145 and 146 Criminal Procedure Code in the case titled as State v. B.D. Goyal and others. The copies of the orders passed by respondent No. 2, Sub Divisional Magistrate, Sirsa have been placed on record as Annexures P1 and P2. The petitioners pray for the quashing of these two orders dated 7.2.1997, Annexures P1 and P2. The proceedings under Sections 145 and 146 Criminal Procedure Code have been initiated on a complaint/Calendra filed before respondent No. 2. The petitioners also seek quashing of order dated 28.2.1997, copy Annexure P3, passed by Sub Divisional Magistrate, Sirsa on a petition moved by the petitioners under Section 145(5) Criminal Procedure Code read with Section 146 Criminal Procedure Code
2. Lord Shiva Charitable Trust (for short hereinafter to be referred as Trust) is said to be in a exclusive possession over the properties detailed in para 1 of the petition including buildings constructed thereon. The said property is the subject matter of the dispute in proceedings under Sections 145 and 146 Criminal Procedure Code pending before the Sub Divisional Magistrate, Sirsa, respondent No. 2. As per the details of the properties given in para 1 of the petition, the disputed property comprised of 14 kanals 16 marlas in 8 plots of land bearing Khasra Nos. 64/16/1/2(0-18), 25/1/1 (3-2), 82/5/1/2 (2-13), 64/15/2/1 (2-8), 15/1/2 (1-19), 16-2-1 (3-0), 24/2/2 (0-6), 26/2 (0-10) and the other land in dispute is of the share of 138/345 in an area of 17 kanals 5 marlas comprising of 7 plots bearing Nos. 63/112 (2-1), 20/2 (3-14), 64/14/2/2 (1-3), 16/1/2 (3-2), 25/1/2 (0-18), 25/2 (3-18), 82/5/2 (2-9). The area of the land possessed by petitioner No. 1, Trust comes to 16 kanals 18 marlas. It is alleged by the petitioners that Shri Sahab Ram Godara is the Chairman of the Trust while Som Parkash, petitioner No. 3 is its Secretary and trustee. The other trustees of petitioner No. 1, Trust, are Shri Banwari Lal son of Shri Mani Ram, r/o Jandwala Bishnoi, District Sirsa, Shri Gobind Ram son of Shri Prahlad Rai, r/o Shamshabad, Tehsil Sirsa, Shri Rajinder Kumar son of Shri Surja Ram, r/o Sangaria, Shri Mani Ram son of Shri Ram Rakh, r/o V. Seeto Gunno, Tehsil Abohar, Shri Inderjeet son of Shri Mani Ram r/o Jandwala Bishnoian, Shri Punam son of Shri Het Ram, r/o Seeto Gunno, Tehsil Abohar and Shri Mahabir son of Shri Amar Singh r/o Dabwali, District Sirsa. Petitioner No. 2, Shri Desh Kamal is an employee of petitioner No. 1, Trust and is also the Principal-cum-Administrator of Lord Shiva College of Pharmacy (for short hereinafter to be referred as College of Pharmacy), an institution run by petitioner No. 1, Trust. The contention of the petitioners is that Shri Desh Kamal, petitioner No. 2, is in exclusive possession as a tenant of premises bearing Municipal Unit No. B-5/316 situated in Gali Bombay Wali, Rori Bazar, in the town of Sirsa on a monthly rent of Rs. 300/-. Shri Som Parkash, petitioner No. 3 is in exclusive possession as an owner of land measuring 10 kanals 7 marlas being 207/345 share of the total land measuring 17 kanals 6 marlas situated in Village Shamshabad, Tehsil and District Sirsa within Municipal limits of Sirsa Town. It was further averred that petitioner No. 1, Trust had no concern with the properties occupied by petitioner No. 2 as tenant and the properties described in para 3 of the petition i.e. an area of 10 kanals 7 marlas are possessed by petitioner No. 3, Shri Som Parkash.
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