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Digamber JaIn Sabha and anr. Vs. State of Himachal Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1984CriLJ272
AppellantDigamber JaIn Sabha and anr.
RespondentState of Himachal Pradesh and anr.
Cases ReferredMoti v. State
Excerpt:
- .....society) registered under the societies registration act. shri m. d. jain is the secretary of the society. the society had been running a free homoeopathic dispensary known as shri digamber jain free homoeopathic dispensary, simla, in the building known as shri digamber jain dharamsala building, simla. it had employed one dr. g. k. kohli, a homoeopath, to run the dispensary. he was employed on 15th june, 1967. at one time dr. kohli left the service but was re-employed on 16th aug. 1973: on 10th oct. 1982 the executive committee of the society took a decision to close the homoeopathic dispensary and open either an allopathic or ayurvedic dispensary. this decision was approved by the general body of the society in its meeting held on 23rd march, 1983. the result was that the services of.....
Judgment:
ORDER

V.D. Misra, C.J.

1. By an order dt. 20th May, 1983 I had, quashed the impugned order passed by the Executive Magistrate under Section 145 of the Criminal P. C. I now proceed to give the reasons.

2. Shri Digamber Jain Sabha, Shimla, is a Society (referred to as the Society) registered under the Societies Registration Act. Shri M. D. Jain is the Secretary of the Society. The Society had been running a free Homoeopathic dispensary known as Shri Digamber Jain Free Homoeopathic Dispensary, Simla, in the building known as Shri Digamber Jain Dharamsala Building, Simla. It had employed one Dr. G. K. Kohli, a Homoeopath, to run the dispensary. He was employed on 15th June, 1967. At one time Dr. Kohli left the service but was re-employed on 16th Aug. 1973: On 10th Oct. 1982 the Executive Committee of the Society took a decision to close the Homoeopathic dispensary and open either an Allopathic or Ayurvedic dispensary. This decision was approved by the general body of the Society in its meeting held on 23rd March, 1983. The result was that the services of Dr. Kohli were terminated on 1st April 1983 and he was offered one month's salary in lieu of the notice according to the terms of his employment. But Dr. Kohli refused to accept the salary. He also refused to hand over the charge of the dispensary. On the other hand on 2nd April 1983 Dr. Kohli put his lock on the door of the dispensary,

3. On 3rd April 1983 Dr. Kohli went to the police station Sadar, Simla, and lodged a report at 10.30 A.M. This was recorded at serial No. 6 of the daily diary of the police station. Briefly stated, the report is to the effect that he (Dr. Kohli) had been working in the Homoeopathic dispensary for about 13 years. In 1981 he became the Registrar and so all the members of the Executive of the Society became jealous and wanted to get rid of him. It was stated that the Society had given, him a notice terminating his service and he was asked to hand over the charge of the dispensary. It, was also averred that they wanted to take forcible possession of the dispensary. The police found that the dispute was of a civil nature and was non-cognizable. A copy of the report was handed over to Dr. Kohli and he was advised to approach the court. In order to ensure that there was no breach of peace, it was decided to advise the Managing Committee of the Society.

4. Thereafter on 12th April 1983 the Society as well as its Secretary made a petition before this Court under Section 482 of the Cr. P. C. Cr. M. P. (M) No. Ill of 1983 making the Station House Officer (S. H. O.) of police station Sadar, Shimla, as a respondent. It was prayed that the S. H. O. be directed to remove the lock and the seal put on the door of the dispensary. It was averred that on fith April 1983 an Assistant Sub-Inspector (A. S. I.) accompanied by a constable had come to the office of the Society and questioned why the dispensary was dosed down and the services of Dr. Kohli terminated. Statement of Shri B. K. Jain, Treasurer of the Society, was also recorded. I will presently advert to the statements recorded by the A. S. I. Suffice it to notice that on 7th April 1983 at about 8.15 P.M. it is alleged, the same A. S. I. accompanied by a constable came to the building of the Society and put a fresh lock on the dispensary after removing the lock of the Society. He also put a seal on this lock. It is also averred that no inquiry was conducted despite the protest of the secretary of the Society. It is also stated that the secretary of the Society went to the police station to inquire as to why the police had put its lock hut he was given no information.

5. This petition came up before the Court on 14th April 1983 when notices were issued to the respondents to show cause why the petition should not be allowed. On 28th April 1983 the Sub-Inspector of the police station was also present in the Court. The relevant part of the order of that date is to the following effect:

He (the Sub-Inspector) states that this Dr. Kohli had come again and had, stated that there was a danger of the present petitioners taking forcible possession of the dispensary. It is further stated that it was in view of this position that a kalendra and prepared and sent to the Magistrate for taking action under Section 145 of the Cr. P. C. However, the Sub-Inspector categorically states that no report of Dr. Kohli was recorded on the subsequent day on the basis of which further action was taken.

In the meantime the Society received a notice from Shri Bhagwant Singh, Executive Magistrate (General Assistant to the Deputy Commissioner), Shimla, under Section 145 of the Cr. P. C. The secretary of the Society, Shri M. D. Jain, now filed, another petition (Cr. M. P. (M) No. 143 of 1983) asking for the quashing of the proceedings pending before the Executive Magistrate. Record was sent for. It was noticed that the first order passed by the Magistrate was dt. 19th April 1983, that is, after notice had been served on the S. H. O. in respect of the previous proceedings in Cr. M. P. (M) No. 1ll of 1983.

6. Mr. Malkiat Singh, Assistant Advocate General, drew my attention to the fact that kalendra under Section 145 of the Cr. P. C. was forwarded by the S. H. O. on 6th April, 1983 and, therefore, the proceedings under Section 145 of the Cr. P. C. are not a counter-blast to the aforementioned show cause notice issued to the S. H. O. I may record that in that case on the first date of hearing I had asked the Deputy Advocate General of the State, who was present at the time of hearing, about the law empowering the police to seal the premises in question on 6th April 1983. Even on the subsequent date, that is, on 28th April 1983, I had asked Mr. Malkiat Singh as well as the S. H. O. to show me the provision of law under which the police had sealed the premises. They were unable to show me any.

7. I would now straightway scrutinise the kalendra. After reproducing Dr. Kohli's report recorded on 3rd April 1983, it is stated that A. S. I. (Gurditta Ram) went to the scene to make inquiries. But it may be noticed that this kalendra conveniently omits the fact that a copy of the report was given to Dr. Kohli since the dispute was found to be of a civil nature and he was advised to approach the court. The kalendra proceeds to record the fact that statements of the persons at the scene were recorded. The secretary of the Society as well as Dr. Kohli had put up their separate locks on the door of the dispensary. Between the lines there is an addition of the words 'thus the dispute continues to exist between the two parties' Thereafter a recommendation is made to the court to start the proceedings under Section 145 of the Cr. P. C. At the end there is again addition of the words 'Homoeopathic dispensary has been locked which has been sealed with a seal of 'T' 'I may, at this stage, record that I questioned A. S. I. Gurditta Ram, who had prepared this kalendra, whether he had added the aforementioned sentences reproduced in inverted commas after he had prepared the kalendra and submitted it to the S. H. 0. The A. S. I. answered that he had added the sentences on the direction of the S. H. O. Before I proceed further, I will take notice of the statements recorded by the A. S. I. and which were sent along with the kalendra.

8. There is a statement of Dr. Kohli. It is dt. 6th April 1983. He has described how he was employed by the Society and the homoeopathic medicines had been put in his charge. He has stated that he used to lock the dispensary and that it was on 2nd April 1983 that the secretary of the Society told him that the Society will put their locks and terminate his service. Not a word has been stated by Dr. Kohli that there was likelihood of breach of peace. Statement of Shri M. D. Jain, Secretary of the Society was also recorded. He has stated, in a nut-shell, that on 1st April 1983 Dr. Kohli was served with a notice of termination of his service and has put the lock on the dispensary. Again, there is not even a whisper of any likelihood, of breach of peace. Statement of one Shri Man Mohan Khanna, Advocate, who lives opposite the Society's Dharamsala, was also recorded. He has stated that Dr. Kohli had been working in the dispensary for a very long time and that this doctor used to open and close the dispensary. Statement of one Shri Brij Kumar Jain has also been recorded. He is a member of the Society. He has stated that the dispensary is the property at the Society and the dispensary room is in possession of the Society in which the dispensary is being run. This is all the evidence on which the kalendra was prepared. Along with the kalendra has been sent a photostat copy of the letter of appointment of Dr. Kohli dated 15-6-1961. A copy of the notice dated 1-4-1983 addressed to Dr. Kohli terminating his service has also been enclosed.

9. It is thus obvious that no one complained of any likelihood of breach of peace. Nothing material happened.between 3rd and 6th April 1983 justifying making of the kalendra. Neither Dr. Kohli nor the Secretary of the Society were out to use force to settle the question of possession of the dispensary. Dr. Kohli had already been advised by the police to approach the court since the dispute was of a civil nature. And what could be the dispute? Dr. Kohli was admittedly employed by the Society to run the dispensary. The Society closed, the dispensary and terminated Dr. Kohli's service. The dispensary was stocked with medicines belonging to the Society. Dr. Kohli neither had any claim nor was he claiming his right to possess the room in which the dispensary was being run. There is nothing even to show that Dr. Kohli was ever putting his own lock. Being in charge of the dispensary he seems to have been provided with locks by the Society and the keys of the same were with Dr. Kohli since he was the only person made responsible for running the dispensary. It appears that far the reasons best known to the S. H. O. of police station Sadar, he blew This minor misunderstanding out of all proportions, illegally sealed the premises and tried to justify the sealing by sending a kalendra without any basis. It was an act of highhandedness. In case there was any development subsequent to 3rd April 1983, it should have been recorded in the daily diary of the police station. Admittedly there is no record showing any untoward development. Mr. M. L. Sharma, learned Counsel for Dr. Kohli, frankly admitted that there is no allegation of fear of breach of peace by any one.

10. Noticing that the kalendra bears the date of 6th April 1983, I wanted to find out the circumstances under which it did not reach the Executive Magistrate till 19th April 1983, the date by which the State as well as the S. H. O. knew that this Court had, issued a show cause notice in Cr. M. P. (M) No. 1ll of 1983. The record of the Magistrate shows that the matter came up for hearing for the first time before him on 19th April 1983. I was informed by Mr. Malkiat Singh that the kalendra was sent to the Court on 7th April 1983. In this connection a despatch book of the police station has been placed before me. I am further informed that the kalendra was received by the Naib-Court. What happened to the kalendra thereafter is anyone's guess since no one has been able to give me the information. But if it remained pending from 7th April 1983 to 19th April 1983 in the court of the Executive Magistrate without any action being taken, then this fact itself speaks volume as to how the office of the Executive Magistrate is being run. Any delay in taking action in cases sent up under Section 145 of the Cr. P. C. is a very serious matter indeed. It has to be remembered that action is required to be taken as a preventive measure to prevent breach of peace. A long unexplained delay in taking action by itself shows that there was indeed no danger of breach of peace. It is nobody's case that till 19th April 1983 anything happened which might suggest a likelihood of breach of peace. Though these facts are sufficient to quash the proceedings. I am constrained to record how the Executive Magistrate is performing his duties. The impugned order taking cognizance of the matter shows that the Magistrate never eared to read the kalendra or the statements of the witnesses which were sent with it. Some one in the office seemed to have prepared this order. I say this because of the glaring English mistakes made in the order. For example, ...there were four objects of the Jain Dharamsala as to advertise the religion. Run over the dispensary....(emphasis supplied). After reciting the facts in brief the Magistrate has proceeded to use the stereotype sentence that he is satisfied that a dispute likely to cause a breach of peace exists. A notice seems Io have been issued on 23rd April, 1983 as is apparent from a noting on the margin of the order. This is a sad commentary on the lack of seriousness with which the matter under Section 145 was being treated. The order does not show if the Magistrate ever realised the police sealing the dispensary without any legal authority. Had he realised that he would have passed some order about it. I would expect the Executive Magistrate to very seriously ponder over the matter while initiating proceedings under Section 145 of the Cr. P. C. as they result in serious consequence to one party. In the instant case it appears that the learned Magistrate without applying his mind or perhaps without even looking at the record decided to sign the stereotype order simply because the police had asked him to do so, The Magistrate should have remembered that his satisfaction has to be arrived at not because of the ipse dixit of the police but after applying his mind to the facts laid before him. It may again be noticed that in the kalendra also there is not even a word that there is a likelihood of the breach of peace because of the dispute between the parties. Simply because the dispute exists, which is admittedly of a civil nature, it does not follow that there is a likelihood of breach of peace and so action under Section 145 of the Cr. P. C. must be taken. It may be repeated that this provision is a preventive one. The object is to ensure that no breach of peace takes place. If there is nothing on the record to show that anyone was complaining of any danger to breach of peace and nothing had transpired between 3rd to 19th April 1983, there was no reason to initiate the proceedings.

11. Mr. Manohar Lal Sharma, learned Counsel for Dr. Kohli submits that since the proceedings have to be started by the Magistrate on his satisfaction, this Court cannot interfere. I am afraid I cannot agree. It is true that the subjective satisfaction is to be that of the Magistrate and this satisfaction can be had either on the basis of a police report or from any other information. However, if there was any other information with the Magistrate, it should have been on the record. Any other information does not mean something to the knowledge of the Magistrate which does not find place on the record.

12. This Court in Moti v. State 1976 Cri LJ 1956, held that in the absence of any evidence it cannot be said that the Magistrate had sufficient material to satisfy himself about the existence of a dispute likely to cause breach of the peace which is a condition precedent necessary to give the Magistrate jurisdiction to initiate proceedings under this section.

13. I would, therefore, set aside the impugned order, quash the proceedings initiated under Section 145 of the Cr. P. C. and direct the police to remove its locks forthwith as they had no jurisdiction to seal the premises in question.


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