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1982 Supreme(All) 739
HIGH COURT OF ALLAHABAD
P.N. GOEL, J.
Gurcharan Singh - Appellant
Versus
City Magistrate - Respondent
Cr. Misc. Application No. 810 of 1982
Decided on : Nov 24, 1982
Markandey Katju, A.D. Prabhakar, L.P. Naithani
The Magistrate is justified in passing a preliminary order under section 145 (1) CrPC if he is satisfied that a dispute exists between the parties which is likely to cause a breach of the peace. The Magistrate is justified in passing an order of attachment under section 146 (1) CrPC if he is satisfied that there is an emergency and that there is immediate apprehension of breach of the peace. The High Court cannot interfere with the interlocutory orders of the Magistrate under section 482 CrPC unless the orders are malafide or motivated, or there is an abuse of the process of the court.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 145 - PRELIMINARY ORDER - ATTACHMENT OF PROPERTY - JURISDICTION OF MAGISTRATE - INTERFERENCE BY HIGH COURT UNDER SECTION 482 - PRINCIPLES.
Fact of the Case:
The applicant, Gur Charan Singh, filed a civil suit against the opposite party, Birender Pal Singh, for permanent injunction restraining him from interfering with his possession of the premises in dispute. The applicant also filed an application under section 145 CrPC before the City Magistrate, Dehradun, alleging that the opposite party was threatening to vacate him from the premises by force. The Magistrate passed a preliminary order under section 145 (1) CrPC, and later on, on the application of the opposite party, passed an order for attachment of the premises under section 146 (1) CrPC. The applicant filed two applications under section 482 CrPC, one for quashing the preliminary order and the other for release of his movables.
Finding of the Court:
The High Court held that the Magistrate was justified in passing the preliminary order under section 145 (1) CrPC, as there was a dispute between the parties which was likely to cause a breach of the peace. The Court also held that the Magistrate was justified in passing the order of attachment under section 146 (1) CrPC, as there was an emergency and the Magistrate was satisfied that there was immediate apprehension of breach of the peace. The Court further held that it could not interfere with the interlocutory orders of the Magistrate under section 482 CrPC.
Issues: 1. Whether the Magistrate was justified in passing the preliminary order under section 145 (1) CrPC? 2. Whether the Magistrate was justified in passing the order of attachment under section 146 (1) CrPC? 3. Whether the High Court could interfere with the interlocutory orders of the Magistrate under section 482 CrPC?
Ratio Decidendi: 1. The Magistrate is justified in passing a preliminary order under section 145 (1) CrPC if he is satisfied that a dispute exists between the parties which is likely to cause a breach of the peace. 2. The Magistrate is justified in passing an order of attachment under section 146 (1) CrPC if he is satisfied that there is an emergency and that there is immediate apprehension of breach of the peace. 3. The High Court cannot interfere with the interlocutory orders of the Magistrate under section 482 CrPC unless the orders are malafide or motivated, or there is an abuse of the process of the court.
Final Decision: The High Court dismissed both the applications filed by the applicant.
P.N. Goel, J.
1. These two applications under section 482 of the Code of Criminal Procedure, 1973 arise out of one proceeding under section 145 CrPC pending before the City Magistrate Dehradun. The proceeding under section 145 CrPC relates to a residential building, its garage and out houses called annexure No. 12, Pritam Road, police station Dalanwala, Dehradun.
2. In Criminal Miscellaneous Application No. 810 of 1982, there is an application dated 22-4-1982 moved toy Gur Charan Singh for the release of movables. This application has also to be disposed of.
To appreciate the controversy between the parties, it is necessary to set out facts at length. Gur Charan Singh will hereinafter be called the applicant. Birender Pal Singh will hereinafter be called the opposite party.
3. Pedigree of the family of Birender Pal Singh which is undisputed is given below :
Kripal Singh
Jagjit Singh Kartar singh Jaswant Singh Smt. Parsin
(died in 1943) Kaur
Birendra Pal =Smt. Harendra Kaur
Singh (died in 1965)
(O.P.)
Smt. Bharpoor Kaur
4. It is undisputed that Smt. Harendra Kaur was the absolute owner of the premises no. 12, Pritam Road Smt. Bharpoor Kaur wife of the Opposite Party was living in these premises along with Smt. Harendra Kaur. On the death of Smt. Harendra Kaur, the premises devolved upon Jagjit Singh, Kartar Singh and Smt. Parsin Kaur. These heirs wanted to oust Smt. Bharpoor Kaur. Consequently Smt. Bharpoor Kaur moved an application for allotment of the premises and by order dated 22-6-1972, the Rent Control and Eviction Officer allotted the premises in her name Jagjit Singh and others filed an appeal before the District Judge against the order of allotment. Their appeal was dismissed on 4-3-1975. Jagjit Singh and others then field writ petition no. 7050 or (7051) of 1978 in the High Court. As Smt. Bharpoor Kaur was living in the premises from before the death of Smt. Harendra Kaur there was no vacancy on the date of allotment order. In view of this the writ petition was allowed on 28-8-1978 (or 28-2-78) and the order of allotment in favour of Smt. Bharpoor Kaur was set aside.
Smt. Bharpoor Kaur then filed civil suit no. 369 of 1978 for injunction against Jagjit Singh and others in the court of the Civil Judge, Dehradun. A Commissioner was appointed in this case to find out as to which person was in actual occupation of the premises. The Commissioner submitted his report on 27-10-1978 that; Smt. Bharpoor Kaur and the opposite party were in actual occupation of the premises. Consequently an ad interim injunction was passed by the Civil Judge in favour of Smt, Bharpoor Kaur. This order was later on vacated. Jagjit Singh and others filed suit no. 331 of 1979 for recovery of possession and mesne profits against the opposite party and his wife in the court of Civil Judge, Dehradun.
5. The opposite party is Labour Welfare Officer in Sugar Mills, Laksar. The opposite party keeps his motor can (Studebaker) in the garage of the premises in dispute at Dehradun.
6. On 25-8-1981 the applicant fifed civil suit no. 156 of 1981 in the court of Munsif Dehradun for permanent injunction against the opposite party, Jagjit Singh, Kartar Singh and Smt. Parsin Kaur with the allegation that he is living in the premises since 1-1-1976 and that he has been regularly paying rent of Rs. 175/- p. m. to the opposite party, that along with the house some articles of old furniture were also let out to him, that the opposite party was intending to sell the premises and as such threatened to vacate him by force. The applicant moved an application for ad interim injunction. ON 2-9-1981 the Munsif passed temporary injunction order restraining all the defendants from interfering and disturbing the possession of the applicant over the suit property until further orders. Before issuing this order notice of the application for temporary injunction was served by a Commissioner upon the opposite party. The Commissioner reported that the opposite
