Skip to content

Dwarka Singh Cahuhan Vs. State and ors. - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous Appeal No. 93 of 1983
Reported in25(1984)DLT289
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145
AppellantDwarka Singh Cahuhan
RespondentState and ors.
Advocates: D.P. Bhandari,; D.R. Sethi and; R.K. Naseem, Advs
.....provisions of section 145 and 146 of the criminal procedure code, 1973, to initiate appropriate civil proceedings for eviction of the tenant to enable the attachment of the property in possession of the tenant, at the behest of the landlord - it was held that the proceedings in the case could not be substituted to evict the tenant and the practice of bye-passing the civil proceedings had been deprecated - further, the court is required to be cautious at the time of exercising it powers to avoid the manipulation of the processb) the case dealt with the order of the magistrate for attachment of the property in possession of the tenant under section 145 and 146 of the criminal procedure code, 1973 - the order of the magistrate had not mentioned any reasons or emergency for such is equally well known that they are susceptible to gross misuse as substituted for appropriate civil proceedings to evict a recalcitrant tenant or to get rid of a licensee or other persons, who maybe otherwise in peaceful possession of immoveable property. in these proceedings, courts are not concerned with the competing title to any immovable property or even to right to its possession. what the courts are concerned with in these proceedings is the existence of a dispute concerning property which is likely to cause a breach of peace and as to the factum of actual possession of the subject matter of the dispute at the material time. under section 146, the court is further concerned with the question if it considers the case to be one of emergency or if it decides that none of the.....

H.L. Anand, J.

(1) This petition under Section 482 of the Code of Criminal Procedure, which is directed against an order of the Additional Sessions Judge, upholding that of the learned Sub-divisional Magistrate, ordering the sealing of a premises u/s 146 of the Code of Criminal Procedure, exposes yet another instance of resort to the criminal process by intending buyers of immovable property to dispossess long standing occupation, by passing the rather dilatory civil remedies.

(2) Premises bearing No. A-41, Sawan Park, Ashok Vihar, Delhi apparently belonged to and was in the occupation of the Prafull Kumar Sanyal. Sanyal died in May, 1966. Dwarka Singh Chanhan, the petitioner, had been living in a part of the property, either as a tenant under Sanyal or otherwise under some arrangement with him during his life time. Petitioner continued to be in occupation, either of a part or of the whole of the premises, since the death of Sanyal and there is controversy as to the extent of the area in the occupation of the petitioner and as to the precise nature of his right to occupation. There is also some controversy if any of the heirs of Sanyal, - consisting of a son and two daughters, ever occupied any part of the premises during the life time of Sanyal or soon after his death. It all, however, went well until February, 1978. In February, 1978, it is claimed that a report was lodged with the police that the petitioner had forcibly occupied a room and a verandah in addition to the portion under his tenancy. Mohinder Singh and Kahiya Singh, the two brothers, who are respondents 2 and 3, claim that by an agreement of March 15, 1978, the heirs of Sanyal agreed to sell the property in favor of their father Hargian Singh. Hargian Singh was since died and that is how respondents 2 and 3 claim to be entitled to the property, including its possession on the ground that the aforesaid agreement mentioned that the possession of the 'entire property' had been delivered in part performance to the intending buyers. According to the petitioner, on February 2, 1981, while the petitioner was away, the said respondents forcibly dispossessed the women folk of the family of the petitioner and on the matter being reported to the Police, acase, being F.I.R. 57/81, under Sections 448/ 380/452/341/427/427/34 Indian Penal Code was registered against the said respondents and they are standing their trial in a criminal court on the aforesaid charges. When the respondents were arrested on the aforesaid charges, petitioner claims to have re-occupied the entire house from which he had been illegally dispossessed by the respondents and it appears that a case under Section 448 I.P.C. was also registered by the Police against the petitioner. On February 13, 1981, the petitioner accordingly filed a civil suit, being Suit No. 193/81, against the respondents seeking to restrain them from interfering with the petitioner's possession of the house and to prevent the petitioner's dispossession from it otherwise than in accordance with law. The suit is still pending. The petitioner also sought an interim restraint order in terms of the relief in the Suit and by an order of March 3. 1981, Shri V. K. Jain, Sub-Judge 1st Class, Delhi, restrained the said respondents from dispossessing the petitioner forcibly from the property 'except the portions marked D-2 and D-4 in the site plan' filed by the respondents. In respect of portion marked D-2 and D-4, parties were directed 'to maintain status quo'. It was further directed that 'any party shall not use their portions and shall not put any lock, etc. on them'. The learned Subordinate Judge further ordered that the order 'will stand automatically vacated if the plaintiff does not conclude his evidence within 2 hearings fixed for recording hisevidence'. In the course of this order, which was made after notice to the respondents and after hearing both the parties, the Court, inter alia, observed that according to the written statement filed by the respondents on February 25 1981, they 'had admitted that on that date, the plaintiff was in possession of the entire property.' Earlier, the Court had appointed Local Commissioner to report with regard to the precise position of possession and the Local Commissioner had reported, and the court notices, that room marked D-l was opened by the plaintiff with his keys indicating that the plaintiff was in possession of the room, room marked D-2 bore the locks of both the parties, room D-3 was opened by the son of the plaintiff with his key, room D-4 did not bear any lock and was lying open and that stairs hall D-6 was also open. It was further found that in the verandah, marked D-7, goods belonging to the plaintiff were found stacked and the local commissioner made no comment with regard to courtyard marked D-5. The trial court also found that prima facie neither the plaintiff nor the respondent had any title to the property. The petitioner claimed title by virtue of a Will, said to have been executed in his favor by Sanyal, but this claim was dispelled on the ground that the plaint made no mention of it. The claim of the respondents to the property was based on the aforesaid agreement but it was found that, by itself, conferred no title. It was further observed that the recital in the agreement that the possession of the property was given was 'not absolutely correct' as the petitioner was admittedly a tenant in respect of one room. In view of the dispute with regard to portion marked D-2 and D-4 the restraint order was confined to the rest of the property. This order has become final because it was not challenged by the respondents in appeal. Subsequently, by an order of July 27, 1981 the learned Sub-Judge observed that keeping in view the fact that the plaintiff had not committed any default and even his own statement had not been recorded completely, 'the order is modified to the extent that the injunction shall continue if the plaintiff concludes his evidence within one hearing fixed for recording his evidence after the conclusion of his cross-examination'. The case came up subsequently on October 20, 1982, when the learned Sub-Judge observed that four witnesses of the plaintiff were present but Counsel for the defendants was not present. Case was accordingly adjourned and it was observed that 'cost of the remaining four P. Ws. shall be borne by the defendants'.

(3) Meanwhile it appears that both parties approached the criminal court u/s 145 of the Cr. P.C. with allegations and counter-allegations and after calling the report of the Police, a preliminary order u/s 145 Cr. P.C. was made by the Sub-Divisional Magistrate concerned and parties were required to produce evidence as to the actual physical possession on the material date. This order was made on April 8, 1981. The learned Sub-divisional Magistrate recorded some evidence on the question of actual physical possession, On October 21, 1982, Mohinder Singh, one of the respondents, who alone is a party to the proceedings u/s 145 Cr. P.C.. presented an application for an order of attachment u/s 146 of the Code of Criminal Procedure on which the learned Magistrate sought a 'fresh police report on the situation. The learned Magistrate heard the parties and made an order on December 16, 1982 'for fresh up-to-date police report on the situation'. On December 21, 1982, the learned Magistrate made the following order :

'Both parties present with counsel. After duly hearing both the parties oral arguments and pursuing the documents in the file and the fresh up to date report filed by the police, I hold that there is imminent breach of peace which calls for immediate order U/s. 146, Cr. P.C. I, thereforee, order accordingly, copy to be given to S.H.O. for effecting the same and to report compliance before next date of hearing. Case to come up on 17-1-1983, for rest of the eviderifce.'

Pursuant to this order, the Police attached the portions marked D-l to D-5. This left intact the possession of a room, a kitchen and a court-yard by the petitioner. Aggrieved by the order of attachment, the petitioner sought its revision by the Sessions Court and by an order made by the Additional Sessions Judge, Delhi on January 25, 1983, the order of the learned Magistrate was upheld on the ground that in view of the various reports 'the attachment of the property in question, as ordered by the Id. S.D.M., does not call for any interference by this Court' In the course of the order, the Ld.Addl. Sessions Judge notice the contention on behalf of Mohinder Singh that according to the order of the Civil court dated March 3, 1981, it will stand 'automatically vacated' if the plaintiff did not conclude his evidence within the two hearings fixed for recording of his evidence and that the order had since been automatically. vacated. A contention was also raised before the Additional Sessions Judge that even the Civil Court's order had excluded from the restraint order portions marked D-2 and D-4 and that the records of the criminal court indicated that the petitioner was only in possession of one room and a kitchen, which in any case had not been disturbed by the order u/s 146 which was under challenge. Aggrieved by these orders, the petitioner has come up to this Court.

(4) While the scope and object of proceedings u/s 145 of the Code of Criminal Procedure and the powers of the Court both u/s 145 and 146 of the Code are very well delineated, it is equally well known that they are susceptible to gross misuse as substituted for appropriate civil proceedings to evict a recalcitrant tenant or to get rid of a licensee or other persons, who maybe otherwise in peaceful possession of immoveable property. In these proceedings, courts are not concerned with the competing title to any immovable property or even to right to its possession. What the Courts are concerned with in these proceedings is the existence of a dispute concerning property which is likely to cause a breach of peace and as to the factum of actual possession of the subject matter of the dispute at the material time. Under Section 146, the Court is further concerned with the question if it considers the case to be one of emergency or if it decides that none of the parties was in possession or is unable to decide as to which of them was in possession of the subject-matter. In such a situation, it is open to the Court to attach the property. In these proceedings, the Court is not unconcerned with the question if the dispute between the parties is already before a Civil court. There are certain common characteristics in proceedings under these provisions which it is not possible for the Courts to ignore. The procedure to evict a tenant or a licensee or any other person in peaceful possession or even a trespasser is fairly dilatory, as well as costly. There is, thereforee, a real danger of landlords or prospective buyers of property taking resort to proceedings in a Criminal Court to by pass the civil process. It has been noticed that during the recent years, there has been an overflow of civil disputes with regard to immovable property into the criminal court system and there is a growing belief that the Police report in such matters, which is quite crucial to the exercise of power by Court, can be easily manipulated by various devious methods. It is thereforee, but proper that the courts dealing with such proceedings are circumspect and not only strictly satisfy the requirements of the provisions but also show an awareness of the dangers-inherent in these proceedings at different stage.

(5) I have heard learned Counsel for the parties at length, who have made accusations and counter-accusations as usual, in support of rival contentions. The proceedings are still at a preliminary stage and the court below is still to determine which of the parties, if any, was in actual physical possession on the material date and it is, thereforee, not possible for this Court to rule one way or the other with regard to some of the questions in controversy between the parties. It, however, appears to me that the lower court failed to exercise discretion properly in ordering the attachment of the property and the learned Addl. Judge took a rather hypertechnical view of the circumstances in which it could interfere in the exercise of discretion by the lower court u/s 146 of the Code of Criminal Procedure.

(6) Some of the features of the case which have been exposed are quit? revealing. Petitioner was admittedly a tenant of a part of the premises although there is a dispute as to the precise extent of the tenanted portion. Late Sanyal, the owner of the property was by and large the only other occupant of the rest of the house during his lifetime. He died in May, 1966 but interestingly enough, there was no controversy of any kind with regard to either the title to the property or its possession until 1978 for a period of almost 12 years. During this period, the petitioner obviously remained in possession of the part or the whole of the property. The first indication of a dispute is of 1978 and it is not a sheer coincidence that it was in March, 1978 that some of the heirs of Sanyal claimed to have entered into an agreement to sell the property to Hargian Singh father of respondents 2 and 3. Hargian Singh has since died An interesting feature of the transaction is that although the agreement to sell was entered into in 1978, the sale deed has apparently not been effected either because the property could not be transferred or perhaps because the purchasers may not be willing to purchase it unless they were able to get possession of the sub's.tantial part of the property, if not of the whole of it. The controversy in 1978 also was only with regard to a room and it did not involve the respondents. That was a dispute between the petitioner, on the one hand and the son of the original owner on the other, the allegations apparently being that the petitioner, who was a tenant in respect of a part of the property, had made an attempt to occupy illegally an additional room. The controversy between the petitioner and respondents started only in February, 1981, the heirs of the owner having apparently left to the proposed buyers to deal with the petitioner. In February 1981, petitioner claims to have been forcibly dispossessed while he was away and a case was registered against the respondents on or about February 2, 1981. This case is still pending. Petitioner further claims that after the arrest of respondents, petitioner reoccupied the entire property as before. It further appears that a counter case against the petitioner was also registered soon thereafter and this is also pending. In the middle of February, 1981, both the parties moved the criminal court u/s 145 Cr. P. C. apparently apprehending dispossession at the hands of the other A preliminary order u/s 145 was made on April 8,1981 and the parties were required to produce evidence with regard to the actual physical possession of the property. Mohinder Singh, respondent no. 2 and Dawarka Singh Chauhan, the petitioner are the only parties in the proceedings in the criminal courts. On or about February 13, 1981, the petitioner filed a suit in a civil court on the allegation that he was in possession of the entire property and was threatened with dispossession by respondents and sought to restrain them from dispossessing the petitioner otherwise than in accordance with law. By an order of March 3, 1981, the civil court, after hearing both the parties, restrained the respondents from forcibly dispossessing the petitioner from the property, except the portion marked D-2 and D-4 in the site plan. With regard to portion marked D-2 and D-4, the Court directed the parties to maintain status quo. The order of the civil court which has become final was based on a report of the Commissioner appointed by the court earlier to find out the position of actual physical possession of the property. The civil court, inter alia, relied on the fact that in their written statement of February 25,1981, respondents had admitted that the petitioner was in possession of the entire property. The Civil Court, however, excluded from the operation of its restraint order portion marked D-2 and D-4 because D-4 did not bear the lock of of any of the parties and D-2 was found to have a lock on it of each of the parties. In view of the order of civil court made on March 3, 1981, it is doubtful if a preliminary order could have been made on April 8,1981u/s 145 of the Code but that need not detain me because it was a common case of parties before me that the proceedings u/s 145 of the Code were valid and may continue. When the proceedings came up before the learned Magistrate on October 21, 1982, a handwritten application of that date was presented to the Court on behalf of Mohinder Singh praying for the property being sealed 'at once.' In this application, Mohinder Singh alleged that the petitioner has throughout been 'harassing and delaying the case' reference being to the proceedings filed by the petitioner, including the petition for transfer of the case from the court of this Magistrate to another court. It is further alleged that. 'He has threatened this applicant both in the court premises and outside that he will shoot him and kill him, He has also hired goondas and and intends to further increase their numbers for assuring his success in the threatened attack. There is imminent danger of breach of peace again in addition to one subsisting.' lnpara3 of the application, it is alleged that 'Although it is 12-0' Clock now, respondent has not appeared in the court again so that the proceedings are further delayed. His modus operandi is to prolong the proceedings and, on the other hand, strengthen his hands to commit illegal acts.' The learned Magistrate was requested to seal the premises at once in view of these 'latest developments.' On this application, the Magistrate directed for 'fresh police report on the situation.' This was followed by a report of the Police dated October 29, 1982 in which, after referring to the past incidents, it was recommended that the house in question may be sealed till the decision of Civil court. The learned Magistrate, however, did not take any action on this report but when the matter came up again on December 16, 1982, he called for a 'fresh up-to date report on the situation'. This report is of December 17, 1982. In this again, the police recommended the sealing of the property.

(7) The order of the learned Magistrate attaching the property suffers from a number of fatal infirmities. In the first instance, the order gives no reasons whatsoever. Power u/s 146 of the Code can be exercised only if its conditions are satisfied. It is not enough for the Magistrate to say that he considers the case to be one of emergency. That would be paying only lip service to the provision. The order must show how the Magistrate considers a case to be one of emergency. The requirement that judicial or quasi-judicial orders must be based on reasons is intended to be a salutary safeguard against arbitrariness, whether judicial or executive. Secondly, the civil court was already seized of the dispute between the parties and by a detailed order, which has since become final between the parties, subject to the decision in the suit, the civil court had clearly restrained the respondents from in any manner interfering with the petitioner's possession of the property, except portions marked D-2 and D-4, with regard to which also parties were bound by this order and if any of the parties was guilty of conduct which was inconsistent with the terms of the order, they were free to approach the Civil Court which had long enough arms to deal with the situation. Before the Addl. Sessions Judge, an attempt was made to get rid of this order on the ground that the order was conditional on the petitioner concluding his evidence within two hearings, but it was perhaps not pointed out to the learned Addl. Sessions Judge that by two subsequent orders of July 27, 1981 and October 20 1982, the order was kept alive with the result that when the order of attachment was made. the order of the Civil court was a subsisting order purporting to regulate the conduct of the parties qua the property in dispute. Thirdly, a reading of the application of Mohinder Singh and the two police reports leave no manner of doubt that the so-called allegations of 'emergency' was a hastily made-up affair intended to oust the petitioner from a part of the property. I have quoted relevant portion of the application above. It appears to have been hastily drawn in the court itself, and was filed at a time when, according to the application, the petitioner had not yet turned up in the court and is based on the allegation that the petitioner had threatened the applicant in the court premises and outside that he would shoot him and had also hired goondas and intended to increase their numbers. Neither of the police reports confirmed this allegation or even referred to these allegations and the police officer, the author of the reports, had contented himself by alleging that both the parties are bent upon taking possession which, to say the least, in the face of a restraint order by the Civil court, was ridiculous. Unfortunately, the trial court lost sight of the fact that none of the respondents were living in this house but were interested since they were the prospective buyers to maintain their possession or to take the possession of the rest of the property before they finalised the deal. The learned Magistrate did not show any awareness of the fact that a party in possession would rarely seek a sealing order and did not take into account the danger that the sealing order may perhaps be intended to dispossess the petitioner from the premises, even though he had the protection of a Civil Court order in his favor. It is unfortunate that the learned Adl. Sessions Judge stayed his hand under the misapprehension that the learned Magistrate had exercised his discretion properly and that the circumstances did not justify interference in revision.

(8) Having regard to all these reasons, the sealing of the premises in my view was a gross abuse of the process of the Court. I would, thereforee, quash the orders of the Magistrate and of the learned Addl. Sessions Judge and direct that parties would abide by the terms of the order of the Civil Court made on March 3, 1981 until the order is varied by a court of competent jurisdiction, either on the motion of any of the parties or otherwise on the conclusion of the trial of the suit. If the respondents are advised that on account of any subsequent event, the order has ceased to operate, it would be open to the respondents to move the civil court for appropriate directions. It would also be open to the parties to move the Civil Court for such modification of the order, with regard to the user and occupation of the premises, as they may consider to be just and proper. The Police would forthwith unseal the portion marked D-l, D-3 and D-5 and restore its possession to the petitioner. Portions marked D-2 and D-4 may remain sealed and parties would be free to approach the civil court with regard to the use and occupation of this portion as an interim measure.

(9) CR. M(M) 93/83 is disposed of in these terms.

(10) Before parting with this matter, it is necessary to call attention to the increasing resort to the criminal court system in disputes relating to immovable property to which I made a passing reference in the earlier part of this order. Market value of immovable property has increased manifold in Delhi during the last decade or so. Possession of immovable property is an important attribute of its ownership and the value of possession of immovable property alone has increased by astronomical proportions. Vacant possession of immovable property adds an entirely new dimension to any transfer in its title. It is, thereforee, not surprising that there is extensive litigation with regard to the immovable property, including its possession, between landlords and tenants, between landlords and licensees, between co-owners of the property inter se, as also between owners of the properly and persons who are other' wise in peaceful possession of it and this frequently involves not only the owners but the intending buyers of such property. It is not uncommon for the intending buyers to agree to buy the property on their own terms on the condition that they would be able to adequately deal with the occupants, whatever may be the nature of their occupation. It is well known that for a variety of reasons, the civil court system has ceased to be effective in giving relief in such cases partly because of the heavy costs but mainly because of the inordinate delay involved which operates as a virtual denial of justice. In any event, the protracted proceedings in civil courts have ceased to be even an instrument of mild pressure on the wrongdoer. The result is that the civil litigants are fast losing faith in the process of the civil court and there is a growing tendency to invoke the jurisdiction of the criminal court system or of the police intervention, so as to cut costs as also ensure expendition. This may be legitimate so long as a dispute constitutes a cause for criminal action and legitimately falls within the competence of the police administration and of the jurisdiction of a criminal court. There is, however, a danger that there may be attempts to invoke, the intervention of the police and to invite the process of the criminal court even in cases where such invocation or intervention may be wholly uncalled for and it is in such cases that there is a real danger of the unscrupulous litigant gaining access to the police and criminal court system by devious methods, not excluding the distortion of facts, perjury and even manipulation of the police, as well as the magistracy. Unfortunately, during the recent years, it has generally gone round that it is comparatively easy to manage the police at certain levels and to even manipulate the magistracy, to an extent. Such an impression, if well founded, would certainly call for introspection among the litigants, as well as the lawyers, and strict vigilance on the part of the police administration, as well as the courts, including the magistracy and the courts to which they are subordinate, in dealing with this class of criminal litigation.

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //