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Shankerlal and ors. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal (Misc.) Petition No. 693/76
Judge
Reported in1977WLN534
AppellantShankerlal and ors.
RespondentState of Rajasthan and ors.
Excerpt:
.....indicated in the impugned order as to the existence of emergency justifying attachment of the disputed land. it appears from a bare persual of his order that he has applied his mind to the materials on the record and acted with care and caution in passing the, order, of attachment.;the petitioner himself stated in his application that the members of party no. 2 had formed an unlawful assembly, with a common object to kill him and in pursuance of the said object they gave grave threats to him. - - 3. the sub-divisional magistrate was satisfied upon the police report as to the existence of a dispute between the parties concerning the land under controversy, which was likely to cause breach of peace, so he drew up a preliminary order under sub-section (1) of section 145 cr. , stating..........no. 2 on 29 4-75 restraining them from interfering with the possession of the petitioners over the land in dispute.5. mr. s.r. bajwa, learned counsel for party no. 2, on the other hand, urged that the jurisdiction of the sub-divisional magistrate to proceed under section 145 cr. p.c. is not taken away merely because an injunction was issued by the civil court restraining party no. 2 from interfering with the possession of the petitioner. according to him, the sub-divisional magistrate is empowered to initiate proceedings under section 145 cr. p.c. even though a civil suit between the parties is pending. as regards the dismissal of the suit for possession filed by party no. 2 against the petitioners in the revenue court. mr. bajwa submitted that an appeal has been filed against the.....
Judgment:

K.D. Sharma, J.

1. Mr. Shanker Lal and Sadasukh petitioners, have invoked inherent powers this Court by way of an application under Section 482 Cr. P.C. for quashing the orders of the Sub-Divisional Magistrate, Karanpur & the Additional Sessions Judge, Shri Ganganagar dated 4-10-76 and 9-11-76 respectively. It will not be out of place to mention that the Sub-Divisional Magistrate, Karanpur vide its order dated 4-10-76 attached the land under controversy on the ground that there was inminent danger of breach of peace necessitating immediate action for its prevention. The petitioners fell aggrieved filled an revision petition in the court or Sessions Judge, Shri Ganganagar. The revision petition was transferred to the Court of Addl. Sessions judge, Shri Ganganagar for disposal according to law. The Addl. Sessions Judge heard the parties and upheld the order of the attachment passed by the Sub-Divisional Magistrate, Karanpur in proceedings under Section 145 Cr. P.C. As against these two orders, the petitioners have moved this Court for exercise of its inherent powers.

2. The relevant facts giving rise to this application may be briefly stated as follows: Shanker Lal, petitioner, filed an application before the Superintendent of Police, Shri Ganganagar on 8-9-76. It was alleged in the application that by way of an agreement with Mukhtiarsing. Sitasingh, Malkiatsingh and Pritam Singh, hereinafter to be referred as party No. 2, the petitioner gave his agricultural land situated at Fatiyabad, District Hissar in exchange for their land situated at Chak No. 82 L.N.P. Tehsil Padampur. The petitioners go to possession of the land from; Party No. 2, about there years ago Party No. 2 however, did not execute a deed of exchange and pot it registered in favour of the petitioners, so the petitioners instituted a suits against party No. 2 and obtained temporary injunction restraining party No. 2 from interfering with their possession over the disputed land. The petitioner cultivated Gwar in the land, but party, No. 2 uprooted the crops by their tractor on 25-7-76. As the members of party No. 2 were armed, with guns, the petitioners could not prevent them from causing damage to his crops. He however, lodged a report about this incident with the, police at Police Station Ghumarwali on 26-7-76. When, the petitioner was returning home after making a report to the police the members of Party No. 2 formed an unlawful assembly with a common object to kill him and having armed themselves with weapons, they gave out threats to the petitioner. The police did not take any action on his report despite repeated requests made to it by the petitioner. On 22-8-76 at about 9 P.M., a shot was fired at the petitioner from the house of Gurdeep Singh, one of the members of party No. 2. Luckily the shot did not hit the petitioner. As the petitioner apprehended grave danger from the side of party No. 2, he requested the Superintendent of Police to take immediate action against the miscreants. It appears that report was sent to the Police Station Gumanwali for enquiry into the matter. The S.H.O. Gumarwali enquired into the master and after recording the statement of Shankerlal and the members of party No. 2 and collecting other necessary documentary evidence in the case, made a report to the Sub-Divisional Officer, Shri Karan pur that a dispute likely to cause breach of peace concerning the land under controversy exists and that necessary orders for attachment of the subject of dispute may be passed to prevent likelihood of imminent, breach of peace.

3. The Sub-Divisional Magistrate was satisfied upon the police report as to the existence of a dispute between the parties concerning the land under controversy, which was likely to cause breach of peace, so he drew up a preliminary order under Sub-section (1) of Section 145 Cr. P.C., stating the grounds of his being so satisfied, and requiring the parties concerned in the dispute to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute After passing the preliminary order, the Sub Divisional Magistrate was of the view that the case was one of emergency, so he attached the subject of dispute under Sub-section (1) of Section 146 Cr. P.C. and appointed the Naib Tehsildar as receiver to take the possession of the disputed fields and make necessary arrangement for public auction of the crops standing therein As stated earlier, Shanker Lal and his brother has challenged this order by way of an application under Section 482 Cr. P.C.

4. I have carefully perused the record and heard Mr. R.N. Bishndi for the petitioner Mr. S.R. Bajwa for party No. 2 and Mr. K.C. Bhandari, Pablic Prosecutor for the State. It has been contended on behalf of the petitioners that there was no dispute over the possession of the land under controversy and so the provisions of Section 145 Cr. P.C. were not applicable. According to Mr. R.N. Bishnoi, learned Counsel for the petitioner, the lard in dispute has been in continuous possession of the petitioners for the last so many years and they have been sowing crops therein. As the members of party No. 2 themselves had handed over the possession of the disputed land to the petitioners in exchange for the latter's land situated in village Fatiyabad District Hissar. In support of his above contention, Mr. Bishnoi relied upon a Judgment passed by the Asstt. Collector, Shri Ganganagar on 6-12-7 in a suit for possession of the land instituted by party No. 2 against the petitioners. He further placed reliance upon an injunction order issued against party No. 2 on 29 4-75 restraining them from interfering with the possession of the petitioners over the land in dispute.

5. Mr. S.R. Bajwa, learned Counsel for party No. 2, on the other hand, urged that the jurisdiction of the Sub-Divisional Magistrate to proceed under section 145 Cr. P.C. is not taken away merely because an injunction was issued by the Civil Court restraining party No. 2 from interfering with the possession of the petitioner. According to him, the Sub-Divisional Magistrate is empowered to initiate proceedings under Section 145 Cr. P.C. even though a civil suit between the parties is pending. As regards the dismissal of the suit for possession filed by party No. 2 against the petitioners in the Revenue Court. Mr. Bajwa submitted that an appeal has been filed against the dismissal of the suit in the Court of Revenue Appellate Authority and the appeal his not yet been decided by the Court of appeal.

6. I have considered the rival contentions. In my opinion, if there is a dispute between the parties relating to the possession of land and such dispute is likely to cause breach of peace, the pendency of a civil litigation between the same parties with regard to the same land cannot take away the jurisdiction of the Magistrate to launch proceedings under Section 145 Cr. P.C. I: is no doubt true that proceedings under Section 145 Cr. P.C. should be initiated with due care and caution during the pendency of a civil suit between the same parties with regard to the same land. But the scope of the proceedings Under Section 145 Cr. P.C. is quite different from that of the civil proceedings. Under Section 145 Cr. P.C. it is the concern of the Magistrate to maintain law and order and to proceed in the matter where there is a real apprehension of breach of peace on account of a dispute relating to possession of land, water etc. In the instant case, the Sub-Divisional Magistrate was satisfied upon the police report about the necessity to take action Under Section 145 Cr. P.C. The police enquired into the matter on the application of Shankerlal, petitioner, who clearly stated some such facts in his application as led to an inference that there was likelihood of breach of peace on account of a dispute between the parties concerning the possession of the land. The dispute concerning the land must, of course, be real dispute and not a mere pretence But it is not necessary that the dispute must necessarily be bonafide because Under Section 145 Cr. P.C. the possession of a trespasser is declared over the land, if he is found to have been in actual occupation of the land at the date of the preliminary order or within two months next before it. The word dispute used in' sub Section (1) of Section 145 Cr. P.C. means in the ordinary sense a quarrel or disagreement over the possession of land, which renders breach of peace likely. In the present case, the members of party No. 2 are contending that the terms of agreement for exchange of land between the parties were not carried into effect or acted upon by them with the result that party No. 2 continued to occupy its own land & parties did not get possession of each other's land In view of the above contention of party No. 2, there is a disagreement or quarrel for possession of land in dispute and if this disagreement or quarrel for possession of the disputed land was likely to cause breach of peace, the jurisdiction of the Sub Divisional Magistrate was not ousted merely because some litigation was going on between the parties in a civil or revenue court with regard to that very land. There must be the satisfaction of the Magistrate him self as to the existence of likelihood of danger to Public peace on account of a dispute relating to possession of an immovable property. If there is prima facie material on the record on the basis of which the Sub-Divisional Magistrate could satisfy himself that a dispute likely to cause breach of peace existed concerning the land, this court will be reluctant in exercise of its inherent powers to interfere with the satisfaction of the Sub Divisional Magistrate regarding the necessity to take action Under Section 145 Cr. P.C. Consequently, I do not feel inclined to subscribe to the argument of Mr. R.N. Bishnoi, appearing on behalf of the petitioners, that there was no dispute over the possession of the land between the parties and the provisions of Section 145 Cr. P.C. were in applicable. The next contention put forward by Mr. R.N. Bishnoi, learned Counsel for the petitioner, is that there was no imminent danger of breach of peace necessitating an order of attachment of the land in dispute. According to him, the Sub-Divisional Magistrate committed an error in attaching the subject of dispute without considering that such attachment seriously affects the rights of the petitioners and also subjects them to unnecessary inconvenience and loss of means of livelihood. The above contention has no force. The Sub-Divisional Magistrate has clearly indicated in the impugned order as to the existence of emergency justifying attachment of the disputed land. It appears from a bare persusal of his order that he has applied his mind to the materials on the record and acted with care and caution in passing the order of attachment. The Sub-Divisional Magistrate it relied upon the statements of Shankerlal, Sita Singh, Gurdeep Singh and Mukhtiar Singh, recorded by the police in the course of inquiry into the application of Shanker lal, petitioner and upon their basis came to a conclusion that there was imminent danger of breach of peace, as the parties were bent upon fighting with each other and had made attempts to assault each other in the past, Hence, it cannot be said that the Sub Divisional Magistrate had no reasons to hold that there was an emergency and that unless the property was attached, there was immediate danger of breach of peace. 1 he petitioner himself stated in his application that the members of party No. 2 had formed an unlawful assembly with a common object to kill him and in pursuance of the said object they gave grave threats to him. It is not now open for the petitioners to contend before me that there was no real emergency justifying the attachment of the subject of dispute.

7. The result of the above discussion is that no case is made out for interference by this Court with the impugned orders, passed by the Sub-Divisional Magistrate, Sri Ganganagar and the Additional Sessions Judge, Sri Ganganagar in exercise of its inherent powers. The application Under Section 482 Cr. P.C. has no substance and is hereby dismissed.

8. Mr. R.N. Bishnoi, learned Counsel for the petitioners, orally prayed for leave to appeal to the Supreme Court. The revision petition has been decided on the peculiar facts of this case. No substantial question of law which requires authoritative to decision of the Supreme Court is involved in this revision petition. Hence, oral prayer for leave to appeal to the Supreme Court is rejected and leave sought is refused.


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