M.M. Punchhi, J.
1. This is a petition under Section 482, Criminal Procedure Code, invoking the inherent jurisdiction of this Court to quash the proceedings under Section 145, Cr. P.C. pending before the Sub-Divisional Magistrate, Ballabhgraph. It has arisen thus:
One Parshadi had three sons; Lala Ram, the petitioner, Inder whose widow was Murti and the third Budha. Some suggestion has been made that Murti, the widow of Inder, had married Budha. Budha executed a will in favour of Murti with regard to his estate. On his demise, a tug of war started between Lala Ram petitioner on the one side and Murti-respondent on the other. The estate of Budha was mutated in favour of Lala Ram and Smt. Murti in equal shares by the Assistant Collector 1st Grade, ignoring the will. On appeal, the Collector mutated the estate in favour of Lala Ram to the exclusion of Smt. Murti. On second appeal, the orders of the officers below were set aside by the Commissioner and the case was remanded for fresh decision. Lala Ram petitioner is now before the Financial Commissioner, Haryana, so as to challenge the orders of the Commissioner and the matter is stated to be pending.
2. In the avenue of the Civil Court, Shmt. Murti respondent on 18-12-1978, filed a suit for injunction seeking restraint against Lala Ram to interfere in her possession. An ex parte status quo was ordered which was confirmed by the Civil Court on 16-3-1979. It has been stated that Shmt. Murti on the other hand created 99 years lease of the disputed property in favour of some lessees. This time, Lala Ram petitioner, filed a civil suit against Shmt. Murti and those lessees seeking permanent injunction and a temporary restraint order so as to preserve his possession. In that suit too, status quo was ordered. Both the suits are stated to be pending.
3. Then came the turn of the avenue of the Criminal Court. The police of Police Station, Chhainsa, on April 17, 1979, reported to the Sub-Divisional Magistrate, Ballabhgarh, through a usual calendar that a breach of peace pertaining to, the property in dispute was likely to occur and that proceedings under Section 145, Cr. P.C. deserved to be initiated. Simultaneous thereto, the police appointed on its own a Sapurdar of the property in dispute on the same date and the S.H.O. of the Police Station assumed Sapurdarship. The Sub-Divisional Magistrate, Ballabhgarh adjourned the case from time to time in a rambling fashion and ultimately on 24th June, 1980, passed a preliminary order under Section 145, Cr. P.C. That was perhaps to justify the existing state of affairs and put a seal of propriety to the assumption of the possession of the SHO-Sapurdar over the property. Lala Ram approached this Court vide Crl. Misc. No. 3144-M of 1980 seeking to quash the preliminary order as also the attachment. A. S. Bains, J. on August 14, 1980, allowed the petition on two grounds: (i) that the casual way in which the proceedings had been conducted by the Sub Divisional Magistrate revealed that he had failed to perform his duty in accordance with law; and (ii) that the Assistant Sub Inspector (SHO) went beyond his jurisdiction in appointing a Sapurdar (meaning thereby himself). That power was spelled out to be with the Magistrate and none other. The proceedings were quashed on the view that they were patently an abuse of the process of the Court. However, in the end, it was observed in the said order as follows:
However, Smt. Murti, respondent, is at liberty, if she still apprehends danger and the breach of peace at the hands of the petitioner, to approach the appropriate authority in accordance with law.
10 days later, on August 24, 1980, Murti Devi respondent filed an application under Section 145, Cr. P.C. in the Court of the same Sub-Divisional Magistrate, Ballabhgarh, against Lala Ram petitioner. She claimed therein that she was in exclusive possession of agricultural land and that Lala Ram respondent was wrongly and illegally bent upon forcibly dispossessing her, who was a poor widow. She stated therein that a police calendar was filed under Section 107/151, Cr. P.C. and one under Section 145, Cr. P.C. but in spite of that Lala Ram respondent had threatened to kill her, in case she prevented the respondent from taking forcible possession of the land in dispute. According to her, there was every likelihood of breach of peace and danger to her life and property at the hand of the respondent over the question of the possession of the land in dispute. She made a prayer that proceedings under Section 145, Cr. P.C. be initiated and during the pendency thereof, the land in dispute be attached, in order to protect her possession. Significantly, the application remained silent about the course in which the earlier proceedings under Section 145, Cr: P.C. had ended in the High Court.
4. The learned Sub DivisionalMagistrate, Ballabhgarh, and as has been admitted by him in his affidavit in this Court, submitted the application for report to the S. H. O. Police Station, Chhainsa. The report of the police was to the following effect:
It is submitted that the circumstances as found are that Parshadi was the owner of 27 Killas of land and had three sons Lala Ram, Budha sons of Parshadi, out of them Lal Chand had died and Smt. Murti had entered into Kareva with Lal Chand and got a will of 9 killas of land in her favour because of which Lala Ram son of Parshadi was not happy. By an order of the S. D. M., Ballabhgarh it was directed that 4 1/2 killas each be given to both the parties, which order was appealed against and the Deputy Commissioner, Gurgaon, accepted the appeal of Lala Ram and held that the will was wrong because of which there has been dispute between the parties and parties were challaned also because Girdawari was in the name of Smt, Murti and the mutation having been sanctioned in favour of Lala Ram, both the parties are claiming the land and are out to fight among themselves. Because of this both the parties were arrested under Section 107/151 Cr. P.C. and are on bail. The proceedings are pending and the land in dispute has been attached under Section 145 Cr. P.C. and in accordance with the orders of the Court both parties have been apprised of the order and both the parties have been restrained from tilling the land and if the land is not attached till the matter is finally decided then there is likelihood of the breach of peace. The report is being submitted.
5. Lala Ram petitioner had apprehension that the land in dispute would again be involved in litigation under Section 145 Cr. P.C. at the instance of the Sub-Divisional Magistrate. He made a transfer application in the Court of Sessions Judge, Gurgaon on September 9, 1980. According to Lala Ram, he apprised this fact to the Sub-Divisional Magistrate while the latter denies having been so apprised. However, on September 10, 1980, the learned Sub-Divisional Magistrate ordered:
I have seen the report of the Police. Issue preliminary orders to appear on 22-9-1980.
And then again:
The property is attached and S. H. O. Chhainsa is appointed as Sapurdar.
These brief orders here referred to were expanded in a composite form order appended with the petition as Annexure P. 2. It is stated therein that on the basis of the facts mentioned in the application, the learned Magistrate was satisfied that there existed a dispute over agricultural land involving apprehensive breach of peace. The order also mentions that the learned Magistrate considered that the case was one of emergent nature and the subject of dispute was thereby attached and the S. H. O. Chhainsa was directed to effect attachment. It is in these circumstances that the petitioner has approached this Court to seek relief.
6. Some glaring facts need be recapitulated. In the petition of Smt. Murti Devi there was mention that 107/151 Cr. P.C. and 145 Cr. P.C. proceedings had been initiated and despite that she was under threat of being dispossessed from the land in dispute. The S. H. O. Police Station, Chhainsa, in his report dated 5-9-1980 confirmed that proceedings under Section 107/151 Cr. P.C. as also under Section 145 Cr. P.C. had been initiated and the land stood attached. The report remained significantly silent about the High Court orders. It is conceded by the learned Counsel for the State that the High Court orders were communicated to the learned Sub-Divisional Magistrate on 3-9-1980, and if this is so, the background of the case could not have escaped notice of learned Sub-Divisional Magistrate while ultimately passing the order dated 10-9-1980, especially when the earlier proceedings were pending in his Court and had been quashed by this Court. Whereas in his short order he was satisfied to issue preliminary orders on the basis of the police report, in his formal order he completely overlooked the police report and preferred to rely on the allegations made in the complaint so as to proceed in the matter.
Though in the complaint assertion was made that Smt. Murti Devi was in possession of the land in dispute and the S. H. O. on the other hand had reported that the land in dispute was under subsisting attachment (oblivious perhaps of the orders of this Court whereby the proceedings were quashed) the learned Sub-Divisional Magistrate, ignored the conflicting claims and proceeded to record a preliminary order. Now the question arises whether the jurisdiction exercised by him was done so in a perfunctory manner or was it under the proper discharge of his duties by application of a judicial mind.
7. Before a preliminary order can be passed under Section 145 Cr. P.C. satisfaction has to be recorded by the Executive Magistrate stating grounds of such satisfaction. This Court while exercising jurisdiction under its inherent powers normally does not go into the question whether those grounds are sufficient or otherwise. But that apart, the existence of grounds is a condition precedent and satisfaction has to be recorded ex facie in the preliminary order. Now a reading of the preliminary order makes it patently clear that the preliminary order was passed without taking into consideration the precedent facts culminating in the quashment of the earlier proceedings by this Court, the conflicting claim of possession by Smt. Murti Devi and the S. H. O. and existence of 107 Cr. P.C. proceedings pending between the parties. It has been stated at the bar that those proceedings too ended in dismissal.
It can safely be spelled there from that the Executive Magistrate who was cognizant of 107 Cr. P.C. proceedings came to the conclusion that there was no likelihood of any breach of peace requiring a person to be bound down under the terms thereof. The impugned order seems to me to have been passed in order to prolong the status quo and the arrangement which had been set at naught by this Court on August 14, 1980. The observations of A. S. Bains, J., quoted above, were seemingly spelled to give a new lever in the hands of the concerned party and officials to re-issue notice under Section 145 Cr. P.C. whereas the language of the observations only pointed towards some proceedings which could fall squarely under Section 107 Cr. P.C. Kitualistic use of the language of Section 145(1) Cr. P.C. in the preliminary order, in the circumstances of this case, cannot be treated to be based on the subjective satisfaction of the Sub-Divisional Magistrate justifying proceedings under Section 145 Cr. P.C. The order being mechanical, bereft of any valid life, cannot be permitted to sustain in order to undo the injustice which was noticed by this Court in Criminal Misc. No. 3144-M of 1980.
8. In the view which has been taken above, other points which were raised by the learned Counsel with regard to the legal feasibility whether proceedings under Sections 145 Cr. P.C. and 107 Cr. P.C. can simultaneously go on in conjunction with proceedings before the Civil Court, are purely academic for the purpose of the present case. Those questions need not be detailed nor answered.
9. For the view taken above, this petition succeeds, the orders of the Sub-Divisional Magistrate as also the proceedings before him are hereby quashed. Resultantly, the attachment of the property in dispute stands lifted. Ordered accordingly.