1. This petition under S. 482 of the Crl.P.C. is directed against the order of the Sub-Divisional Magistrate, New Delhi, made on April 22, 1983 attaching the property in dispute under S. 146(1) of the Crl.P.C. and for the temporary restoration of possession of the property of the petitioner until the decision of the Court with regard to the actual possession of the property at the material time.
2. Premises bearing No. 1140/47, D.D.A. Flats, Kalkaji, New Delhi was allotted to Smt. Sharad, respondent No. 2. She has been staying in Karachi along with her husband, who works in the Indian Embassy there. Smt. Sharda had apparently left the premises in the care of one Jagbir, who resides in another premises in the vicinity. It is a common case that Jabir let it out to Smt. Ramwati, the petitioner and Ramwati and the other members of the family, including her husband, had been in peaceful possession on the premises for the last 3 years and continued to be in such possession until March 27, 1983, when a dispute is said to have arisen as to the possession of the premises. According to the petitioner, Jagbir, Smt. Sharda and a number of other persons made an attempt to forcibly throw there out of the premises along with her belongings and the matter was reported to the Police. When the Police came on the scene, they found part of the belongings of the petitioner outside the premises on the road. A claim was made by Smt. Sharda and Jagbir that the petitioner had voluntarily surrendered the possession, which was naturally denied. The Police registered a case under Sections 452/448/34 IPC arrested Jagbir and one Ramji Lal, his associate. The Police also made a report under Section 145 Cr.P.C. to the Sub-divisional Magistrate concerned. It appears that notwithstanding the arrest of Jagbir and Ramji Lal, the petitioner was not allowed to re-enter the premises and the premises were locked by Smt. Sharda, respondent and the Police put on the lock a seal, pending the order of the Court. Meanwhile, the Sub-divisional Magistrate made a preliminary order under Section 145(1) of the Code on April 15, 1983, directing both the parties to appear in the Court and file their respective written statements in support of their claims as to the actual possession of the premises by April 26, 1983. It further appear that on or before April 18, 1983, the petitioner who had been dispossessed had been squatting outside the premises and was advised to break the seal and lock and re-enter the premises pursuant to the petitioner's purported right of re-entry. Pursuant to this re-entry, respondent filed an application before the Sub-divisional Magistrate on April 19, 1983 making a grievance of the forcible entry by the petitioner in the premises and claiming that a situation of grave emergency had arisen justifying the attachment of the property. The Sub-divisional Magistrate called for the Police report and on the receipt of the Police report, made an order on April 22, 1982 attaching the property under Section 146(1) of the Cri.P.C. on the ground that a grave emergency had arisen justifying the attachment. When the order was made, neither party was present before the learned Magistrate. Meanwhile, the petitioner moved the Additional District & Sessions Judge, challenging the validity of the preliminary order and by an order made on April 22, 1983, the Additional Sessions Judge stayed the proceedings before the Sub-divisional Magistrate. At the same time, the petitioner moved the Civil Court for a declaration that the petitioner was entitled to an unfettered right, use and occupation of the premises and to restrain the respondents from interfering in the petitioner's possession and enjoyment of the same. The Civil Court, by an order made on April 22, 1983 restrained the respondent form dispossessing the petitioner forcibly.
3. It is urged on behalf of the petitioner that when the order under Section 146(1) of the Cri.P.C. was made on April 22, 1983 the learned Additional Sessions Judge had already stayed the proceedings under Section 145 of the Criminal P.C. before the learned Magistrate earlier the same day, and that subsequent proceedings before the Magistrate were, thereforee non est. It is further urged that when the learned Magistrate attached the property on April 22, 1983, the Civil Court injunction restraining the respondent from interfering with the petitioner's possession made earlier the same day was also subsisting. It was urged on behalf of the petitioner that the stay of proceedings by the Additional Sessions Judge and the restraint order made by the Civil Court were within the knowledge of the respondent and that is why neither the respondent nor her counsel appeared before the learned Magistrate on April 22, 1983 when he made the impugned order. A further contention that raised on behalf of the petitioner that the petitioner had been in peaceful possession of the premises for over 3 years and had been forcibly dispossessed pursuant to a conspiracy to which the respondent and Jagbir, as indeed, their associates were parties and when after the arrest of Jagbir and Ramji Lal the petitioner re-entered the premises pursuant to her right of re-entry and got the proceedings under Section 145 stayed and obtained a restraint order against the respondent she had been outwitted by the respondents by getting an ex parte order under Section 146(1) attaching the property not only in violation of the stay order but also to frustrate the object of an order made by a Civil Court protecting the lawful possession of the petitioner. A grievance was also made on behalf of the petitioner that the petitioner had been a victim of a high-handedness on the part of the respondent and the toughs, whose services had been procured by the respondent with a view to illegally deprive the petitioner of her lawful possession. It was further urged on behalf of the petitioner that in any view of the matter, it was reasonable and proper that pending determination of the various matters under Section 145 of the Code, as also the petitioner's revision petition before the learned Additional Sessions Judge and the proceedings in the Civil Court, the possession of the premises temporarily restored to the petitioner as such conditions as may be considered reasonable.
4. I have heard learned Counsel for the parties at considerable length and it appears to me that the grievances of the petitioner are well-founded. Petitioner was admittedly in peaceful possession for a period of 3 years and had been paying rent to Jagbir to whom the premises had been entrusted by the respondent. It was also not disputed that on a case under Section 425/448 I.P.C. being registered, Jagbir and his associate Ramji Lal had been arrested on March 27, 1983. It was also not disputed that after the arrest of Jagbir and Ramji Lal, Police had no powers to put a lock on the premises or to otherwise seal the premises on their won and that the only action they could have taken was to have made a report to the Magistrate u/s. 145 of the Cri.P.C. It was also not disputed that the learned Additional Sessions Judge had stayed the proceedings on April 22, 1983 and the Civil Court had granted an injunction in favor of the petitioner and that both these were within the knowledge of the respondent as well as her counsel. It was, however, urged on behalf of the respondents that the learned Magistrate was not aware of either of the two orders when the attachment of the premises was ordered and that the subsistence of these orders had no impact on the impugned order of the learned Magistrate. A contention was also raised that the petitioner having been dispossessed, legally or otherwise, could not have effected forcible entry by breaking open the lock put on the premises by the respondent on which the Police had put its seal and this circumstance would disentitle the petitioner to any protection. It was further urged that the conduct of the petitioner in the circumstances justified the inference that an emergency had arisen which is turn justified the attachment of the property.
5. Ordinarily, it is for the criminal court under Section 145 of Cr.P.C. or failing that for the Civil Court in appropriate proceedings to determine as to who was in actual physical possession at the material time, but in the present case, there is no dispute that until March 27, 1983, the petitioner had been in peaceful possession of the premises as a tenant pursuant to the authority that Jagbir had let out the premises. The only dispute is if the petitioner was attempted to be forcibly dispossessed or voluntarily surrendered on the material date. It is true that the learned Magistrate was not aware either of the stay order issued by the Additional Sessions Judge or of the restraint order issued by the Civil Court both the orders. It is, thereforee, not a sheer coincidence that when the learned Magistrate made the order attaching the property, respondent as well as her Counsel were not present and the petitioner could not have been present because petitioner was not even aware of the application made by the respondent on April 19, 1983 and the only thing that the petitioner knew was that the case had been fixed before the learned Magistrate for further proceedings on April 26, 1983. It would be quite interesting to know how the respondent's application of April 19, 1983 on which the report of Police was sought by the learned Magistrate, travelled to the Police Station concerned and back to that Court and landed before the learned Magistrate on April 22, 1983 and an order was made with regard to attachment of the property without anybody appearing to sponsor the application or say anything in its support. It is, thereforee, obvious that the the respondent being aware of the order of stay of proceedings and of the restraint order deliberately stayed away from the proceedings but made sure that their application along with the Police report was presented before the learned Magistrate for appropriate orders.
6. What is worse, that in dealing with the application, the learned Magistrate should have ignored the patent facts that a case under Section 448/452 I.P.C. had been registered and Jagbir and his associate had been arrested, as also the admitted fact that prior to March 27, 1983, the petitioner has prime facie been in peaceful possession of the premises. To attach the property in these circumstances would certainly be a gross abuse of the process of the Court, particularly, where the proceedings ....... had been stayed by the Additional Sessions Judge and the respondent had been restrained from interfering with the petitioner's possession.
7. Prima facie, it appears to me that instead of taking recourse to the normal procedure for the eviction of a tenant or dispossession of a person in lawful possession, the respondent adopted an illegal device to dispossess a tenant and sought to cover it up, with or without the aid of the police, in proceedings under Section 145 of the Cr.P.C. and even when the petitioner successfully obtained stay of these proceedings and got interim protection from a Civil Court, the respondent virtually succeeded in over-reaching both the Courts.
8. In the circumstances, I would quash the order of the learned Magistrate attaching the property even while keeping the proceedings under Section 145 Cr.P.C. alive, subject to the order of stay granted by the Additional Sessions Judge, and direct that the possession of the premises would be forthwith restored by the Kalkaji Police temporarily to the petitioner executing a bond in the sum of Rs. 5,000/- that the petitioner would deliver peaceful and vacant possession of the premises as and when required by the Court in the proceeding pending before it. If any dispute is raised between the petitioner and the respondent with regard to any of the belongings lying inside the premises, the belongings may be kept in a sealed box in the premises subject to any direction with regard to their disposal in the proceedings.
9. Order accordingly.