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iqbal Singh Vs. State of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1985CriLJ1757
Appellantiqbal Singh
RespondentState of Haryana and ors.
Cases ReferredMohinder Singh v. Dilbagh Rai
Excerpt:
.....the civil suit is a situation in which a civil court does not prima facie feel satisfied about any party being in possession of the subject matter of the suit. at the same time, i would like to observe that jurisdiction under section 145, criminal p. in that situation, i had observed that preventive measures to prevent breach of peace and preserve public tranquillity could well be taken by binding down the parties under section 107, cr. mukerjee, learned counsel for the petitioner urges with some amount of vehemence that even in a situation as in the present case, the right course to be adopted by the magistrate was if he otherwise felt so satisfied to initiate proceedings under section 107, criminal procedure code. to me also it appears fair and judicious that in the given situation of..........of the civil court restraining the other party from interfering with the possession of one party proceedings under section 145, cr. p.c. could be launched only in aid of the order of the civil court. it was further held that invoking of the jurisdiction of the executive court under section 145 cr. p.c. at the instance of the party which had been restrained from interfering with the possession of the other would tantamount to clear abuse of the process of the court by such a party.8. in bhawan pal v. prem kumar jain (1982) 84 pun lr 195, i. s. tiwana. j. while explaining the ratio of the division bench decision in mohinder singh's case (1977 cri lj 1029) (supra), observed as follows:mr. mukerjee, learned counsel for the petitioner urges with some amount of vehemence that even in a.....
Judgment:
ORDER

M.M. Punchhi, J.

1. This petition under Section 482, Cr. P.C. has arisen in the following manner. The parties to the dispute are the progeny of Sher Singh. Whereas the petitioner is the son of Sher Singh, respondents Nos. 2 to 5 are his daughters/grand-daughters. The estate of Sher Singh comprising agricultural lands and kothas and a tubewell etc. situate thereon, gave rise to a dispute between the parties after the death of Sher Singh. The estate of Sher Singh was mutated by the Revenue Officer between the petitioner and respondents Nos. 2 to 5 in equal shares vide order dated 31-1-1983. The petitioner then filed a suit praying that he was the sole legal heir of the property in question and that the order of the Revenue Officer dated 31-1-1983 was illegal, null and void and not binding on the petitioner. He also filed an application for interim injunction under O. 39, Rr. 1 and 2 of the Civil P.C., praying for the grant of interim injunction restraining the contesting respondents from alienating the suit property and disturbing the possession of the petitioner. Ad interim injunction was granted to the petitioner on 28-3-1984 in the presence of the parties. Respondents Nos. 2 to 5 preferred an appeal before the learned District Judge. Kurukshetra. The learned District Judge on 4-6-84 modified the order under appeal and ordered that the parties shall maintain status quo regarding the possession over the land which was subject-matter of partition and they shall not alienate the same in any manner till the decision of the suit.

2. As a new move, the contesting respondents Nos. 2 to 5 moved the Sub-Divisional Officer. Thanesar, for initiating proceedings under Section 145, Cr. P.C. and requested that attachment of the property be effected under Section 146, Cr. P.C. The learned Sub-Divisional Officer vide order dated 6-8-1984 (now questioned) initiated proceedings under Section 145, Cr. P.C. by recording his requisite satisfaction and further ordered the attachment of the land in question under Section 146, Cr. P.C. appointing the Naib Tehsildar as Receiver.

3. The matter has been canvassed by the learned Counsel on the anvil of a few precedents of this Court. Whereas the petitioner maintains that in view of the order of the Civil Court attachment under Section 146, Cr. P.C. could not have been resorted to, the respondents on the other hand maintain that such a course was permissible as laid down by this Court in a Division Bench judgment in Mohinder Singh v. Dilbagh Rai (1976) 78 Pun LR 803 : 1977 Cri LJ 1029. The respective contentions are based upon the decisions being dealt with hereafter.

4. In Mohinder Singh's case (supra), it is noticeable that the Division Bench had before it a case which arose under the old Code, i.e. prior to the Criminal P.C. of 1974. In the context of that law, their Lordships posed a question as to whether a criminal Court could initiate proceedings under Section 145, Cr. P.C. and attach property about which a case was pending in a Civil Court between the same parties, and the Civil Court had issued ad-interim injunction restraining one party from interfering in the possession of the other or had passed the order for maintaining status quo during the proceedings. While dealing with the situation of grant of maintenance of status quo about the possession of the property during the pendency of the case, their Lordships observed as followed:

The third type of cases, that is, maintenance of status quo during the pendency of the civil suit is a situation in which a Civil Court does not prima facie feel satisfied about any party being in possession of the subject matter of the suit. In such cases when both parties claim possession, dangerous situation can develop with the anxiety of both or any one of them to get into actual possession. If the situation deteriorates then the police or the Magistrate cannot act as silent spectators to witness the breach of the peace. If .they act in such circumstances and the Magistrate attaches the subject matter of the dispute under Section 145, Criminal Procedure Code, then he would be acting to defend the maintenance of t he status quo as ordered by the Civil Court.

The judgment was authored by K. S. Tiwana, J. and while concurring with him M. R. Sharma, J. observed as follows:

As pointed out by my learned brother K. S. Tiwana, J. Section 145, Criminal P.C. empowers the authorities concerned to take immediate preventive action in an emergency. Cases are not unknown in which in spite of an injunction issued by a Civil Court the parties have tried to take forcible possession of land in disregard of the injunctional orders. It would be in the fitness of things if the police intervenes in such a situation either suo motu or on a report lodged by the weaker party. From a purely practical point of view, it would be proper not to curb this jurisdiction and to leave the aggrieved party to knock at the doors of the Civil Courts to initiate proceedings for the disobedience of injunctional orders. At the same time, I would like to observe that jurisdiction under Section 145, Criminal P.C., should be exercised with extreme caution if a Civil Court is properly seized of the case. With these observations, I agree with the judgment proposed by my learned brother K. S. Tiwana, J.

5. In Asa Singh v. State of Punjab 1983 Chand Cri C 290 a judgment which I rendered, I had taken the view that when an order of status quo regarding possession inter panes had been passed by a Civil Court and thereafter the Sub-Divisional Magistrate ordered the attachment of the property in question by appointing a Receiver, it tantamounted to disturbing the order of status quo as it tended to deprive the party whosoever was in possession of the property in dispute, and thus was an abuse of the process of the Court. In that situation, I had observed that preventive measures to prevent breach of peace and preserve public tranquillity could well be taken by binding down the parties under Section 107, Cr. P.C.

6. In a case of settled controversy by the Civil Court with regard to possession, I had in Milkha Singh v. State of Punjab (1982) 2 Chand LR (Cri) 191, observed as follows:

In a society governed by rule of law, decisions of Courts in forums provided under the law are meant to be respected and kept enforced in the larger interest of the State, towards maintenance of law and order. Now here is an irate litigant, who having lost in the Civil Court after deep contest with regard to the possession of land, instead of acclamatising itself to the order passed by the Court turns around and wants the dispute to be unsettled with the aid of the police under Section 145.1 am aware of the cases in which simultaneous proceedings of civil litigation as also criminal litigation over same subject in dispute have sometimes been jealously guarded so that one jurisdiction does not vie with the other jurisdiction. But in no case, as far as my impression goes, has a settled controversy in the Civil Court been put to fire by invoking Section 145, Criminal Procedure Code.

7. In Nachhattar Singh v. Gurinder Singh (1983) 2 Chand LR (Cri) 125 : 1983 Cri LJ 718, D. S. Tewatia, J. took the view that in the presence of interim injunction of the Civil Court restraining the other party from interfering with the possession of one party proceedings under Section 145, Cr. P.C. could be launched only in aid of the order of the Civil Court. It was further held that invoking of the jurisdiction of the Executive Court under Section 145 Cr. P.C. at the instance of the party which had been restrained from interfering with the possession of the other would tantamount to clear abuse of the process of the Court by such a party.

8. In Bhawan Pal v. Prem Kumar Jain (1982) 84 Pun LR 195, I. S. Tiwana. J. while explaining the ratio of the Division Bench decision in Mohinder Singh's case (1977 Cri LJ 1029) (supra), observed as follows:

Mr. Mukerjee, learned Counsel for the petitioner urges with some amount of vehemence that even in a situation as in the present case, the right course to be adopted by the Magistrate was if he otherwise felt so satisfied to initiate proceedings under Section 107, Criminal Procedure Code. For this proposition he again relies on two judgments of this Court in Des Raj v. Smt. Pal (1973) 75 Pun LR 57 : 11973 Cri LJ 1869), and Bhan Singh v. State of Punjab etc. 1976 Chand LR Cri 85. The learned Counsel for the respondents however, points out that these two judgments of this Court stand overruled or at least dissented from by a later Division Bench of this Court in Mohinder Singh v. Dilbagh Rai (1976) 3 Cri LT 530 : 1977 Cri LJ 1029. In earlier two judgments what had been held was that once the parties to litigation under Section 145, Criminal Procedure Code, had already gone to the Civil Court for the determination of their rights with regard to the subject-matter in dispute, the Magistrate would not have any jurisdiction to proceed in the matter under Section 145, Criminal P.C. No doubt this proposition laid down in these judgments has not strictly been approved by the above noted. Division Bench judgment, yet this judgment does not in any way dissent from from or disagree with the ratio of the two judgments when these lay down that under Section 145, Criminal P.C., a duty is enjoined upon the Magistrate to see that the parties who have a civil dispute pending, do not take the law into their hands and commit a breach of the peace. This duty is to see that the parties actually go to a Civil Court and not fight about the land or the house. If the parties have already gone there, the Magistrate has no longer any duty to perform except to proceed under Section 107, Cr. P.C. Actually Sub-section (10) of Section 145 saves and impliedly suggests the following of such a course. To me also it appears fair and judicious that in the given situation of this case the best course to be adopted by the Magistrate was to proceed under Section 107 instead of proceeding under Section 145, Cr. P.C.

9. As is plain from the ratio of the aforementioned Single Bench judgments, they do not run counter to the rule laid down by the Division Bench. The principle culled out therefrom is that the order of the Civil Court must be respected even while initiating proceedings under Section 145, Cr. P.C. If the Civil Court passes an order of status quo regarding maintenance of possession, it inheres in that order that the Civil Court could not on the existing material decide as to which out of the contending parties was in possession, and if the contention of either one of them supposedly was right then maintains the possession of that party. It is in this context that the aforesaid Single Bench decisions have gone on to say that then the order of attachment has the effect of disturbing the orders of the Civil Court, as whosoever was the party in possession was likely to be deprived of it; and otherwise the order of maintenance of status quo would in practical sense mean no order at all on the subject a view to be avoided and difficult to entertain. It is or this reason that in Bhawan Pal's case (1982) 84 Pun LR 195 (supra), it was observed by I. S. Tiwana, J. that Sub-section (10)of Section 145 impliedly suggested that resort to Section 107, Cr. P.C. could be taken and the said procedure as provided was not in derogation of Section 145, Cr. P.C. In my view the logic can even further be taken to hold taking the cue from the ratio of Division Bench decision in Mohinder Singh's case (1977 Cri LJ 1029) (supra) that the Magistrate can well initiate proceedings under Section 145, Cr. P.C. to decide which party was in possession because the Civil Court, while passing orders of status quo, was unsure as to which of the parties was in possession. But at the same time for prevention of breach of peace it can have resort to proceedings under Section 107, Cr. P.C. and not to attach property under Section 146, Cr. P.C. as that would tend to violate the order of Civil Court by dispossessing the party, who was ordered to be left in possession by the order of maintenance of status quo. Being of this considered view, I hold it accordingly.

10. Thus, for the view I have taken, on precedent and precept, I am of the view that the learned Magistrate in the instant case initiated rightly proceedings under Section 145, Cr. P.C. to determine the question as to which of the contending parties was in possession of the land in dispute, since the Civil Court had by passing the order of maintenance of status quo kept it fluid. But I am further of the view that the learned Magistrate could not appoint a Receiver under Section 146, Cr. P.C. and cause dispossession of the party whosoever was in possession of the land in derogation of the order of the Civil Court. For prevention of breach of peace, however, he could take resort to the provisions of Section 107, Cr. P.C. This, as it appears to me, is the only way to reconcile and confluence the different notes struck in the judgments above quoted in a harmonious way so that it is an even chorus,

11. For the foregoing reasons, this petition is partially accepted inasmuch as the order of the learned Sub-Divisional Magistrate ordering attachment of the property in dispute and appointing the Naib Tehsildar as Receiver is quashed leaving it open to him to take suo motu proceedings under Section 107, Cr. P.C. It has been stated at the Bar that the Receiver did not take the possession of the land in dispute since the operation of the impugned order relating to his appointment was stayed by this Court. Thus, no order needs to be passed for the return of possession. Whosoever is in possession of it continues to be so. Ordered so.


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