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Shishu and ors. Vs. the State of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1982CriLJ124
AppellantShishu and ors.
RespondentThe State of Haryana and ors.
Cases ReferredShrimati Prem Kaur v. Rai Bahadur Lala Banarsi Das
Excerpt:
.....regard to the subject of dispute. therefore, this is merely a temporary or intermediary order which can be withdrawn by the magistrate if he is satisfied that there is no longer any apprehension of breach of peace. the learned magistrate has clearly mentioned in his order that none of thp parties had been able to prove its possession and the case was of emergency......about possession over some agricultural land and there was likelihood of breach of peace. the learned magistrate issued notice to the parties under sec, 145(1) of the code. in compliance of the notice, the parties appeared. some affidavits and documents were filed. on 6-11-1979' the learned magistrate passed the following impugned order :-whereas it has been reported by the police uchana that there does exist a dispute likely to cause breach of peace between, the parties mentioned above, respecting the land bearing killa nos. 114/1/2, 2, 3, 8, 9, 10; 11, 12, 13, 18, 19,, 20, 158//10, 11, 20, 21, 159//6/2 7/2, 14, 15, 16, 17, 24, 25, 344, 408/1, 55//22/4/ measuring 184 kanals 7 marlas situated in the revenue estate of village surbura tehsil narwana, district jind, within my local.....
Judgment:
ORDER

B.S. Yadav, J.

1. Proceedings Under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) were instituted in the Court of Executive Magistrate, Narwana against Basanta and others respondent-party No. 1. and Sishu and others-respondent party No, 2. In the police report, it was mentioned that there was serious dispute between the parties about possession over some agricultural land and there was likelihood of breach of peace. The learned Magistrate issued notice to the parties under Sec, 145(1) of the Code. In compliance of the notice, the parties appeared. Some affidavits and documents were filed. On 6-11-1979' the learned Magistrate passed the following impugned order :-

Whereas it has been reported by the police Uchana that there does exist a dispute likely to cause breach of peace between, the parties mentioned above, respecting the land bearing Killa Nos. 114/1/2, 2, 3, 8, 9, 10; 11, 12, 13, 18, 19,, 20, 158//10, 11, 20, 21, 159//6/2 7/2, 14, 15, 16, 17, 24, 25, 344, 408/1, 55//22/4/ measuring 184 kanals 7 marlas situated in the revenue estate of village Surbura Tehsil Narwana, District Jind, within my local jurisdiction and whereas I am satisfied that the dispute over the possession of the land is likely to cause a breach of peace. Notice was already given to the parties for the respective claims and counter-claims.

2. I am of the opinion that the case is one of the emergency and none of the party is able to satisfy as to which of them is in such possession of subject of the disputed land.

3. There is a great; tension and both the parties are likely to create breach of peace and finding no alternative, I hereby attach the disputed land until a competent Court has determined the right of the parties thereto with iegard to person entitled to the possession thereof.

4. In view of the above circumstances, I appoint the Tehsildar. Narwana (Circle Revenue Officer) as a Receiver thereof. He will look after the property and dispose of the produce etc. under rules. The fee of the receiver is fixed Rs. 75/- per month.

5. The file be consigned in the record room after due compliance.

2. A preliminary objection has been taken on behalf of the contesting respondents, who were first party before the learned Magistrate to the effect that in view of Section 397(2) of the Code, the present revision petition is not main- tainable because the impugned order is of interlocutory nature.

3. In support of his argument, the learned Counsel for the respondents placed reliance upon the proviso appended to Section 146(1) of the Code. Section 146(1) reads as follows:-

If the Magistrate at any time after making the order under Sub-section (1) of Section 145 considers the case to be one of emergency, or if he decided that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the .subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights. of the parties thereto with regard to the person entitled to the possession thereof;

Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.

As none of the parties was able to satisfy as to which of them was in possession, of the land in dispute, the learned Magistrate passed the above order admittedly Under Section 146 (1) and (2) of the Code as he considered it to be a case of emergency. Therefore, the first question to be considered is whether the impugned order is an interlocutory order or not.

4. The learned Counsel for the petitioners has urged that the present order cannot be said to be in interlocutory order because the rights of the parties to some extent have been decided inasmuch as the petitioners are being deprived of the possession over the land In dispute. He has cited Amar Nath v. State of Haryana, 1977 Chand LR (Cri) 242 : 1977 Cri LJ 1891 (SC) wherein it was observed as under (at p. 1895 of Cri LJ) :

Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Sec, 397 of the 1973 Code. Thus, for instance order summoning witnesses, adjourning cases; passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie Under Section 397(2) of the 1973 Code. But orders which are matter of moment and which affect or adjudicate the rights of accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisionai jurisdiction of the High Court.

On the basis of this authority, he argued that only routine orders passed during trial or inquiry can be said to be interlocutory orders and the one passed in the present case cannot be said to be interlocutory.

5. The above Supreme Court ruling does not deal with the case like the present one. Their Lordships of the Supreme Court were not intending to lay down the definition of the expression 'interlocutory order'. Every order passed by a subordinate Court is to be construed on its own merits.

6. Puran v. State of H. P. 1977 Chand LR (Cri) (Him Pra) 10 is a judgment dealing with a case wherein proceeding Under Section 145 of the Code, the Executive Magistrate had ordered attachment of the disputed land after the Panchayat had made a report that there was an apprehension of breach of peace. The aggrieved party challenged that order by Writ petition under Article 227 of the Constitution of India read with Sections 482 and 401 of the Code. In that case, it was remarked;-

In so far as the revisionai jurisdiction Under Section 401 of the Code is concerned, the same also cannot be invoked in the present case because it is not a final order. It is an interlocutory order, against which no revision lies as provided under Sub-section (2) of Section 397 of the Code. The submission made by the learned Counsel for the petitioners that it is not an interlocutory order rather it is a final order is not correct because the proviso to Sub-section (1) of Section 146 says that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no likelihood of the breach of peace with regard to the subject of dispute. Therefore, this is merely a temporary or intermediary order which can be withdrawn by the Magistrate if he is satisfied that there is no longer any apprehension of breach of peace. Therefore, it cannot be said to be a final order.

Brij Lai Chakoo v. Abdul Ahad Nishati, 1980 Chand LR (Cri) (J&K;) 50 : 1980 Cri LJ 89 (J&K;) (FB) deals with a case where the disputed property was attached in proceedings Under Section 145(4) of the Cr. P. C. as applicable in the State of Jammu & Kashmir which section read as follows:-

Inquiry as to possession:- The Magistrate shall then, without reference to the merits of the claims of any of such parties to a right to possess, the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at, the date of the order before mentioned in such possession of the said subiect:-

Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein:-

Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date;

Provided also that, if the magistrate considers the case one of, emergency, he may at any time attach the subject of dispute, pending his decision under this section.

It was remarked in that case:-

A bare reading of the 3rd proviso to the Sub-section (shows that an order of attachment under the Sub-section (is only a temporary order in its nature and scope, Such an order is passed only during the pendency of the proceedings Under Section 145 Cr. P. C. and is not an order, independent of these proceedings. The use of the expression 'at any time' and 'pending its decision' occurring in the third proviso to the Sub-section (make it implicit that the order is only an interim order, which can even be set aside by the court making that order itself. No finality can as such be attach-ed to such an order.

An order of attachment Under Section 145(4) Cr. p. C. has only a limited purpose viz. to prevent the imminent danger of the breach of the peace. It is, by its very nature, a temporary measure and comes to an end with the conclusion of the proceedings and may be brought to an end even earlier. Such an order is only a step in the proceedings taken to further the ends of justice and in that view of the matter, it is purely an interlocutory order, which is not re-visable in view of thp bar contained in Section 435(a)(4) Cr. P. C.

Hence I am of the opinion that the order in question is of interlocutory nature and no revision lies against that order.

7. On merits also, I do not find any force in the present petition. The learned Magistrate has clearly mentioned in his order that none of thp parties had been able to prove its possession and the case was of emergency. Therefore, he had no other alternative, but to direct the parties to go to Civil Court and get the matter decided.

8. learned Counsel for the petitioners has cited Harkishan, Advocate Palwal v. State of Haryana (1978) 80 Pun LR 156, but that has no application to the facts of the present case. In that case, the police report, on the basis of which the Magistrate had passed an order Under Sections 145 and 146 of the Code, had not mentioned therein that there was a dispute concerning the possession and management of the property in question. It is not so in the instant case. In the present case, it is mentioned in the police report that there is a dispute abouj; possession over land and it is likely to cause breach of peace.

9. It was next argued on behalf of the petitioners that they have already gone to the Civil Court and have obtained a stay order and, therefore, the learned Magistrate ought to have declined to take action under Sees. 145 and 146 of the Code. This argument has no force. Reference can be made to Jia Lai v. Sub-Divisional Magistrate 1978 Chand LR (Puni & Har) 44, where it waa remarked:-

From the above observations, it is clear that police can initiate proceedings Under Section 145 of the Code even though a Civil litigation between the parties is pending in which one of the parties obtained an ad interim ini unction order to the effect that its possession should not be disturbed. Similar view was taken by me in Crl. Misc. No. 1484-M of 1977 (Arjun v. Gram Panchayat, Banga) decided on May 2, 1977.

10. The learned Counsel further argued that no case of emergency has been established. In such cases, it is the subjective satisfaction of the Executive Magistrate to see whether there exists an emergency or not, before passing an order Under Section 146 of the Code.

11. Before parting with this judgment, I may also quote here Shrimati Prem Kaur v. Rai Bahadur Lala Banarsi Das (1933) 34 Cri LJ 342 (Lah) wherein it was observed as under ;-

As regards the necessity of attachment, the Magistrate considered the case to be one of emergency. The matter was one within his discretion and the action taken by him for maintenance of peace cannot be lightly interfered with.

12. In view of the above discussion, the present revision petition is dismissed.


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