Skip to content


Kalu and ors. Vs. Karnidan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Cr. Mi. Misc. Peti. No. 205 of 1989
Judge
Reported in1990(2)WLN181
AppellantKalu and ors.
RespondentKarnidan and ors.
DispositionApplication allowed
Cases ReferredVimla Agrawal v. State of Rajasthan S.B. Criminal Misc. Petition No.
Excerpt:
.....dangar of breach of peace that very purpose of even pendency of civil litigation would be frustrated, but not in cases where the litigation has a chequred history of civil/revenue cases between the parties......shown that the person has come in possession of the property by virtue of a decree and then civil suit filed first and injuction is not granted in that suit the criminal court ought not to usurp jurisdiction by passing order under section 146(1) cr. pc and proceeding under section 145 cr.pc so as to frustrate the purpose of pendency of the civil/revenue litigation. it is now well settled that orders passed under the provisions of the code of criminal procedure particularly under section 145 and 146 cr. pc are in the nature of police orders and are always coterminus with the orders of the court and vice a versa is not true, therefore, proceeding under section 145 cr. pc bas to be drawn, can be 'judicially restrained and in extraordinary cases, where the court is satisfied that for.....
Judgment:

V.S. Dave, J.

1. This in an application Under Section Seciton 482. Cr. PC against the order passed by learned Sessions Judge, Bundi, on March 10, 1989 by which he dismissed the part of the prayer of the petitioners in revision filed against the order, dated 26th August 1988 passed by the learned A.CM. Bundi in proceedings Under Section 145, Cr. PC.

2. Brief facts giving rise to this petition are that non-petitioner Nos. 1 and 2 Karnidan and Kishan Singh aged 75 years and 70 years respectively are real brothers. They filed an application Under Section 145 Cr. PC before learned A.C.M. Bundi on 17 August, 1988, wherein it was alleged by them that they are the Khatedars and are in cultivatory possession of 15 Bighas 15 Biswas of land in Khasrn No. 75 old Khasra No. 25 in village Theekariya Charans, Tehsil in District Bundi. This land is known as Peeplibala. It was alleged by them that they had given the land for cultivation on Aadoli in erstwhile Bundi State to Rodu, father of petitioner No. 1 Kalu, for a period of two years but later on they cultivated the laud themselves. It was alleged by applicant's non-petitioners that non-applicants got the land entered in their name in the revenue record in connivance with the Land Settlement Officers, though cultivatory possession remained with them since last 45 years. It was stated in the complaint that non-applicant petitioners bad filed a suit in respect of this land against Rodu son of Bholu wherein a receiver was appointed on 25-5-1987. When the applicant non-petitioners learned about it they approached the Revenue Appellate Authority where from an order was passed for continuing their possession on depositing Rs. 250/- per bigha. This order was challenged by both the parties before the Board of Revenue wherein the Revenue Board gave a decision on 14-9-1987 that Karnidan shall continue to be in possession of the disputed land provided he deposits a security at the rate of Rs. 200/- per bigha per year and Karnidan non-petitioner deposited Rs. 3000/- on 211-1987. The non-applicants Kalu etc. joined hands with Rodu and filed a compromise without the knowledge of the applicant non-petitioners and the learned A.C.M. decreed the suit favour of the non-applicant petitioners in terms of compromise, an appeal against this decree is pending. Application Under Section 145, Cr PC had been filed because non-applicant-petitioners in the garb of the stay order are trying to dispossess the applicant non-petitioners and that there is breach of peace. Notice was issued of this application and the learned Magistrate on 26-8-88 passed an order directing issuanee of notice to the petitioners and simultaneously drew up an order Under Section 146, Cr PC appointing the Tehsildar, Bundi as receiver. Tehsildar was directed to take over the possession forthwith and to make necessary arrangements for cultivation of the land in dispute from year to year by auctioning the same and by seeking approval of the court. This order Under Section 146 Cr.P.C was challenged by the petitioners before the learned Sessions judge, Bundi. The learned Sessions Judge, Bundi modified the order of the learned Magistrate to the extent that inquiry contemplated Under Section 145(4) Cr PC would remain stayed and the parties were direct to await the decision of the Civil Court for that purpose. He how ever, upheld the order appointing the receiver on the land in dispute. It is against this part of the order that the present petition has been filed.

3. The petitioners' case in this court is that the land is in their Khatedari and all the revenue record indicates the same, their case is that one Rodu son of Bholu Goojar bad once forcibly taken over the, possession of the said land from the petitioners against whom a regular suit for dispossession was filed before the Sub Divisional Officer, Bundi under the provisions of Rajasthan Tenancy Act, 1955 by the petitioners. The defendant Rodu in that case contested the suit which was ultimately compromised between the petitioners and Rodu and a decree in terms of the compromise was passed. In persuance of this decree the possession was handed over to the petitioners and it was also directed that the money deposited in the court shall be returned to them. Non-petitioner Nos. 1 & 2 had filed a suit Under Sections 188 and 88 of Rajasthan Tenancy Act for declaration and injunction against the petitioner on the same allegations which have been leveled in this application Under Section 145, of Criminal Procedure Code and the prayer in that suit is that it may be declared that non-petitioner Nos. 1 & 2 are the Khatedars of the said land measuring 15-15 Biswas of Khasra No. 75. The non-petitioners further prayed that they may be recorded as Khatedars and the name of the petitioners should be deleted. A permanent injunction has also sought to that effect against the petitioners. An application Under Section 212 of the Tenancy Act and Section 151 read with Order 39, Rule 1 & 2, Cr.PC was filed with this suit which did not filed favour in the trial court and was rejected against which an appeal is pending before the Revenue Appellate Authority. The petitioners case, therefore, is that non-petitioners were neither in possession nor can claim cultivatory possession of the land till their suit is decreed for which there are no chances. The petitioners' case further is that they are the recorded Khatedars of the land originally was in Khatedari of Rodu son of Nanda who had three sons petitioner No. 1 Kalu, Goga father of petitioner No. 2 and Kana father of petitioner Nos. 3, 4 and 5. After the death of Rodu there was mutation in the revenue record in favour of Kalu, Kana and Gopi as Goga had pre-deceased Rodu. In these circumstance it is, submitted that the courts below erred in drawing an order Under Section 146,'Cr.PC and appointing the receiver. It is submitted that the petitioners are in possession of the land in dispute by virtue of decree of the competent court and there was no question of passing any order Under Section 146, Cr.PC so as to defeat the decree passed by the competent court. I'. is submitted that the order of the learned ACM is exfacie illegal in as much as it does not indicate that the learned ACM has applied his mind to the facts and circumstances of the case. It is submitted the learned Sessions Judge, Bundi should have quashed the entire proceedings rather than staying them during the pendency of suit and continuing the appointment of the receiver.

4. Replying to the sumbissions of the learned Counsel for the petitioner it is submitted on behalf of the non-petitioners that the petitioner claims to be in possession on the basis of a collusive decree and this action is calculated to harm the non-petitioners. Such a plea based on fraud cannot be taken note of and considered as one of the circumstance against the non-petitioners, particularly because they were not party to the suit compromised Besides this, a suit has already been filed which is subjudice before the competent court where all the rights will be adjudicated. It is submitted that there is absolutely no illegality in the order passed by the revisional court and interference, cannot be done under the provisions of Section 482 Cr.PC. It is then submitted that the scope of Section 482 CrP.C is very limited and besides that order of criminal court is always coterminus with the order of civil or revenue court and as such the learned courts were justified in appointing a receiver pending disposal of these proceedings It is submitted that it is open to the petitioner to get an order from the competent civil/revenue court and then move the criminal court to pass an order which may not be inconsistent with that order.

5. Learned Counsel for the petitioners has ralied on Ram Sumer Puri Mahant v. State of U P. and Ors. : AIR1985SC472 Mani Ram and Ors. v. The State of Raj and Anr. 1985 WLN (UC) 52, Arvind Singh and Ors. v. State of Raj and Ors. 1986 (1) WLN 610, Megh Raj and Ors. v. State of Rajasthan and Ors. 1986 WLN (UG) 255, Harvinder Singh v. Jaswant Singh and Ors. 1987(2) RLR 76; and Jhunamal alias Devandasy. State of MP. and Ors. : 1989CriLJ82 , while learned Counsel for the non-petitioners has relied on Mathwalalv. Bhanwarlat and Anr. v : 1980CriLJ1 and Municipal Corporation of Delhi v. Ram Kishan Rohlagi and Ors: : 1983CriLJ159 .

6. In Ram Sumer Puri Mahant v. State of U.P. and Ors. (supra) their Lordships held as under:

When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding Under Section 145 of the Code would not be justified. The parallel proceedings should not be permitted to continue and in the event of a decree of a decree of the civil court the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.

In Mani Ram and Ors. v. State of Rajasthan and Anr. (supra) this court held that when the non-petitioners have already approached the Revenue Court for a declaration of the right and failed to obtain a receiver while the petitioner obtains a temporary injunction in his favour, recourse to the proceedings Under Section 145 Cr. PC are not appropriate. In Arvind Singh and Ors. v. State of Rajasthan and Ors. (supra) this court has reiterated that right, title and interest have to be finally adjudicated upon by the Civil Court and such an adjudication would be binding on the parties and civil court is equally competent to pass an interim order in connection with the protection for alleged right, title and interest of the parties and also in connection with the protection of the properties in question. If by any interim order passed by the civil court, and party feels aggrieved then a regular remedy is available to the party in law and the parties should not be allowed to invoke the criminal jurisdiction. In Meg Raj and Ors. v. State of Raj. and Ors. (supra) this court followed Marti Ram's case quoted above. In Harvinder Singh v. Jaswant Singh and Ors. (supra) a Civil Suit had been filed where a temporary injunction had been granted and when the proceedings Under Section 145 CrPC were drawn this court held that there was no propriety but in view of the fact that the undertaking was given by the petitioner to hand over the possession of the premises in case injunction order is vacated or the Civil Court does, not accepted the prima facie case of possession, The non-petitioners apprehension was that once the proceedings are dropped, the party is likely to with draw the suit so as to defeat the rights of the non-petitioners giving an under-taking not to withdraw the suit, the court directed the quashing of the proceedings Under Section 145.

7. In Mathuralal's case it has been held that Magistrate's jurisdiction does not come to an end as soon as an attachment is made on the ground of emergency and further that there is no express stipulation in Section 146 that jurisdiction of the Magistrate ands with the attachment nor it is implied, from it. The obligation to proceed with the enquiry as prescribed by Section 145(4) is against any such implication. The only provision for stopping the proceeding and cancelling the preliminary order is to be found in Section 145(5) and it can be on the ground that there is no longer any dispute likely, to cause a breach of the peace. An emergency is the basis of attachment under the first limb of Section 146(1) and if there is an emergency, no one can say that there is no dispute likely to cause a breach of the peace. Their Lordships further compared the provisions of Code of Criminal Procedure before 1955 under the old Act and as they now stand under the 1973 Code. After discussing their Lordships came to the conclusion that the provisions of Sections 145 and 146 of the 1973 Code are substantially the same as the corresponding provisions before the 1955 amendment. The only noticeable change is that the second Proviso to Section 145(4) (as it stood before the 1955 amendment) has now been transposed to Section 146 but without (be words 'pending his decision under this Section ' and with the words 'at any time after making: the order Under Section 145(1)' super-added. The change clearly, is in the interests of convenient draftsmanship. All situations in which an attachment may be made are now mentioned together in Section 146. The words 'pending his decision under this Section ' have apparently been omitted as unnecessary since Section 145 provides how the proceedings initiated by a preliminary order must proceed an end and therefore an attachment made 'at any time after making the order under Under Section 145(1) can only continue until the termination of the proceeding At the termination of the proceeding, if he finds one of the parties was in possession as stipulated, the Magistrate must make an order as provided in Section 145(6) and withdraw the attachment as provided in Section 146(1) since there can be no dispute likely to cause a breach of the peace pace an order in terms of Section 145(6) is made. In this case their Lordships were considering the question as to whether Magistrate as soon as he passes an order of attachment whether he has to do anything also except awaiting the decision or direction of the Civil Court. The position in that case was little different than the one in the instant case.

8. In Municipal Corporation of Delhi's case their Lordships held that powers Under Section 482 Cr. PC should be exercised very sparingly and only if compelling reasons excepting for taking cognizance against other persons against whom action has not been taken. This case was in respect of taking cognizance of the offence against him and other accused persons and at latter stage has no bearing on the facts of this case.

9. I have carefully gone through the aforesaid case law and the circumstances leading to filing this petition I have also gone through the record, which was summoned, by this court.

10. Before I proceed further, it may be made clear that this court is conscience of its limitation Under Section 482 Cr. PC. This court in Vimla Agrawal v. State of Rajasthan S.B. Criminal Misc. Petition No. 175/1988 decided by me on 7-10-1988 fixed the parameters within which the case must fall in case interference is done in inherent powers. In the instant case it cannot be disputed that the petitioners entered into possession of the land because of a decree obtained from a court of competent jurisdiction when there the aforesaid decree was obtained by a fraud and collusion is a subject matter of the suit which has been subsequently filed by the non-petitioners in the court. The non-petitioners bad also moved an application Under Section 212 of the Rajasthan Tenancy Act and Section 151 read with Order 39 Rule 1 and 2 CPC. That application did not find favour with the trial court and the appeal is pending before the Reveuue Appellate Authority. The question is whether in these circumstances the criminal court ought to have ordered the appointment of a receiver and stayed the proceeding Under Section 145 Cr. PC so as to defeat the purpose of the decree passed. It may be observed that once it is shown that the person has come in possession of the property by virtue of a decree and then civil suit filed first and injuction is not granted in that suit the criminal court ought not to usurp jurisdiction by passing order Under Section 146(1) Cr. PC and proceeding Under Section 145 Cr.PC so as to frustrate the purpose of pendency of the civil/revenue litigation. It is now well settled that orders passed under the provisions of the Code of Criminal procedure particularly Under Section 145 and 146 Cr. PC are in the nature of police orders and are always coterminus with the orders of the court and Vice a versa is not true, therefore, proceeding Under Section 145 Cr. PC bas to be drawn, can be 'judicially restrained and in extraordinary cases, where the court is satisfied that for reasons beyond control of the parties at may not be possible for them to obtain immediate relief from the civil/ revenue courts in pending litigation and there are such an eminent dangar of breach of peace that very purpose of even pendency of civil litigation would be frustrated, but not in cases where the litigation has a chequred history of civil/revenue cases between the parties. The facts in the present case suggest that the appeal is pending before the Revenue Appellate Authority and the revisional court did proceed in right direction when it considered the question of directing the parties to contest in revenue suit but erred in continuing the receiver in the circumstances of the case. In my opinion the circumstances of the present case are such where continuance of the proceedings Under Section 145 Cr. PC by themselves amount to abuse of the process of the court muchless when the revenue court has not accepted the application Under Section 212 of the Rajasthan Tenancy Act and Section 151, read with Order 39 Rule 1 & 2 CPC. Therefore, the order of appointment at receiver out not to have been continued by the revisional court. Therefore, the infirmity, illegality and perversity in the order of learned Sessions Judge. Bundi is only to the extent that though there is a decree of a competent court in favour of the petitioners and an order of rejection of temporary injunction application in favour of the non-petitioners, it continued the order of appointment of the receiver.

11. I therefore, hold that in the circumstances of the case it is a fit case where continuation of the proceedings Under Section 145 Gr. PC would be abuse of the process of the court as revenue suit in respect of the same land is already pending and interlocutary application by the respondent had already been dismissed.

12. In the result this application Under Section 482 Cr. PC is allowed. The orders by learned Sessions Judge, Bundi on 10-3-1989 and that of learned ACM, Bundi on 26-8-1988 are set aside and proceedings Under Section 145 Cr. PC are quashed.


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