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2020 Supreme(P&H) 1361
IN THE HIGH COURT OF PUNJAB AND HARYANA
Anil Kshetarpal, J.
Vijay Ratra - Appellant
Versus
State Of Haryana And Others - Respondent
Criminal Miscellaneous (M) No. 13048 of 2020
Decided On : 13-10-2020
N.K. Malhotra, Advocate, Chetan Sharma, Advocate, C.B. Goel, Advocate
The main legal point established is that the Executive Magistrate must have satisfaction of a dispute likely to cause a breach of peace before initiating proceedings under Section 145, and the appointment of a Receiver under Section 146 requires brief reasons and must fall within specific eventualities.
Headnote:
Section 145 Cr.P.C - Dispute over property - Section 146 Cr.P.C - Appointment of Receiver - Summary of Acts and Sections: Section 145, Section 146, Cr.P.C - The court discussed the requirements for initiating proceedings under Section 145, the power of the Magistrate to attach the subject of the dispute and appoint a Receiver under Section 146, and the need for the Magistrate to record satisfaction of a dispute likely to cause a breach of peace. The court highlighted the importance of deciding the dispute without reference to the merits or claims of the parties and the necessity for the Magistrate to provide brief reasons before appointing a Receiver.
Fact of the Case:
The petitioner sought quashing of a complaint and two orders passed by the Executive Magistrate under Section 145, 146 Cr.P.C. The dispute arose from a partnership dissolution, and the Executive Magistrate appointed a Receiver of the property. The petitioner claimed exclusive possession of the property.
Finding of the Court:
The court found that the Executive Magistrate's initiation of proceedings and the appointment of the Receiver were not justified as there was no evidence of a dispute likely to cause a breach of peace. The court quashed the proceedings under Section 145 Cr.P.C and the order under Section 146 Cr.P.C, allowing the parties to adjudicate their rights in the Civil Court.
Issues: The issues involved whether the Executive Magistrate was justified in appointing a Receiver without prima facie finding of a dispute likely to cause a breach of peace and whether the initiation of proceedings under Section 145 Cr.P.C was appropriate in the absence of a dispute likely to cause a breach of peace.
Ratio Decidendi: The court held that the Executive Magistrate must be satisfied of a dispute likely to cause a breach of peace before initiating proceedings under Section 145, and the appointment of a Receiver under Section 146 requires brief reasons and must fall within specific eventualities.
Final Decision: The court quashed the proceedings under Section 145 Cr.P.C and the order under Section 146 Cr.P.C, allowing the parties to seek adjudication of their rights in the Civil Court.
JUDGMENT
Anil Kshetarpal, J. - The petitioner has invoked the inherent jurisdiction under Section 482 Cr.P.C seeking quashing of the complaint no. 59/4 dated 11.3.2020 and two orders passed on the same day by the Executive Magistrate in exercise of powers under Section 145, 146 Cr.P.C.
2. In the considered view of this Court, following questions/issues need adjudication:-
(i)Whether it is appropriate for an Executive Magistrate under Section 146 (1) Cr.P.C to appoint a Receiver of the property in absence of prima facie finding that the dispute to be one of emergency, or none of the parties was then in such possession as is referred to in Section 145 or if he is unable to satisfy itself as to which of them was then in such possession of the property in dispute.
(ii)Whether in absence of a dispute likely to cause a breach of peace, the Executive Magistrate is justified in initiating proceedings under Section 145 Cr.P.C.
3. Some facts are required to be noticed. It is undisputed that the petitioner- Vijay Ratra was running an industry and respondent no.2 - Raj Kumar Ratra later on joined the aforesaid business. The factory premises are constructed over two adjoining plots no. 116 and 117 IDC Area, Hisar Road, Rohtak. After respondent no.2 had joined, the business was being run in partnership under the name and style of M/s Abhishek Industries. On 26.8.2019, a deed of dissolution of the partnership was reduced into writing and the petitioner herein took over all assets and liabilities of the firm as on 26.8.2019. Of course, it was recorded that party no.2 i.e Raj Kumar Ratra has taken over possession of plot no. 116 IDC, HIsar Road, Rohtak. The dissolution deed was forwarded to the District Registrar of Firms, Rohtak who acknowledged its receipt on 17.9.2019.
4. Respondent no.2 lodged a complaint with Station House Officer, alleging that the petitioner has defrauded him. In the application, it was specifically stated that respondent no.2-Raj Kumar Ratra has stopped going to the factory in August, 2019. In the application, it was prayed that he be provided support in this matter. Thereafter, the police arrested the petitioner on 21.1.2020 in the proceedings under Section 107, 151 Cr.P.C. The Station House Officer also forwarded a Kalendra/recommendation to the Executive Magistrate on 27.2.2020 for initiating proceedings u/s 145-146 Cr.P.C.. The Executive Magistrate took cognizance thereof, and passed two orders on 11.3.2020; one was to register the Kalendra under Section 145 Cr.P.C and second, appointing a Receiver of the property while exercising power under Section 146 Cr.P.C.. This petition came up for preliminary hearing on 28.5.2020 when notice of motion was issued to the respondents while staying operation and effect of the order dated 11.3.2020 appointing the Receiver.
5. Pursuant to the notice, two separate written statements have been filed contesting the present petition, one by Sub Divisional Magistrate and second by respondent no.2. The written statement filed by respondent no.2 has been forwarded on official email of this Court. The Office was requested to take a print out thereof and place it on the paper book.
6. Learned counsel appearing for the petitioner has contended that the proceedings initiated by the learned Executive Magistrate are without jurisdiction. He further contended that it is undisputed that the petitioner is in exclusive possession of the premises from where factory is being run by him exclusively from the date of dissolution of the firm i.e. 26.8.2019. He also contended that the Executive Magistrate has abused its powers. Per contra, learned counsel appearing for the State of Haryana has defended the order passed by the Executive Magistrate. Sh. C.B.Geol, Advocate appearing for respondent no.2 has submitted that as per the deed of dissolution dated 26.8.2019, respondent no.2 was handed over the possession of the property of plot no. 116 and therefore, the petitioner has no right ove the plot no.116
