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Puran Singh and ors. Vs. Labhu Ram - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1976CriLJ571
AppellantPuran Singh and ors.
RespondentLabhu Ram
Cases ReferredRam Lal and Sant Ram v. State
Excerpt:
- .....botih the parties submitted the written statements and also produced several affidavits. the learned magistrate considered the evidence and held that a prohibitory order under section 145 need be passed against puran singh and others. subsequently this order was assailed in a revision before the learned sessions judge and he has quashed the proceeding of the learned magistrate on the ground that due compliance was not made of service of the notice within the meaning of sub-section (3) of section 145. in other words, he directed that the proceeding so far taken up before the learned magistrate be quashed and hereinafter the case should proceed in accordance with law. the learned sessions judge has accordingly sent the case to this court with his recommendation.2. the learned counsel.....
Judgment:
ORDER

D.B. Lal, J.

1. This is a reference presumably under Section 438 of Criminal P.C. and arises out of a proceeding under Section 145 instituted at the instance of one Labhu Ram in respect of certain cultivable land said to be in his non-occupancy tenancy and interference was caused by Puran Singh and others in his possession over such land. The learned Sub-Divisional Magistrate before whom the proceedings were instituted passed a preliminary order and called for the parties to produce written statements before him and also adduce evidence by giving affidavits. Accordingly botih the parties submitted the written statements and also produced several affidavits. The learned Magistrate considered the evidence and held that a prohibitory order under Section 145 need be passed against Puran Singh and others. Subsequently this order was assailed in a revision before the learned Sessions Judge and he has quashed the proceeding of the learned Magistrate on the ground that due compliance was not made of service of the notice within the meaning of Sub-section (3) of Section 145. In other words, he directed that the proceeding so far taken up before the learned Magistrate be quashed and hereinafter the case should proceed in accordance with law. The learned Sessions Judge has accordingly sent the case to this Court with his recommendation.

2. The learned Counsel appearing for the respective parties stressed before me only two points which need consideration. It is submitted, that any irregularity committed by the learned Magistrate in regard to service of notice under Sub-section (3) of Section 145 will not go to the root of the matter and should not be taken regard of for quashing the proceeding. The second point canvassed by the learned Counsel for Puran Singh and others is. that two civil suits are already pending between the parties and some interim injunction has also been obtained and for that reason the proceeding under Section 145 need not at all be taken up and the entire proceeding must be quashed. I have given my consideration to both these contentions and I find some force in them.

3. As regards the first point regarding service of notice and any irregularity committed thereto under Sub-section (3) of Section 145, the matter seems to have been settled by two Division Bench decisions of this very High Court. These are Konl Ram v. Rattan Dassi 1971 HLR 346 and Ram Lai and Sant Ram v. State 1971 HLR 294. It has been held that Courts of trial and enquiry commit procedural errors which do not affected the procedural errors committed ; by them ate cured, or, at least they do not' justify interference by Court of appeal or revision: Mfere absence of affixation of the orelftninary order on the property In dispute will only vitiate a proceeding If preitfdice Is shown to have been caused to the 'person aggrieved. Otherwise the irregularity shall be curable under Section 37 of the Criminal1 P.C. In the instant case, it was never, pointed out that jeltfter party was prejudiced because of any such irregularity as to the affixation of notice on a conspicuous part of the property the facts' being that both the parties were made fully conversant with the case 6i each bier, they submitted theft was Men statements and also producecp affldavifs. the learned Magistrate gave them felt opportunity of adducing evidence. It is only after considering their evidence that the decision was arrived at. It would, therefore, be idle to contend that any if regularity of howsoever innocent nattier it array' be as to the procedural law will affect the merit of the case of will result in prejudice to either party After considering the facts and circumstances made out in this case, I am of opinion that no such prejudice was caused,, and Horace? the saipl irregularity, if any, should has have been availed of by the learned Sessions Judge for quashing' the proceeding.

4. But, this alone does not seem to end the matter. The other point urged by .the learned Counsel for Puran Singh and others is, that two civil suit inter-partes are pending. These seenarto be cross-suits and the questions of title end possession. are the subject-matter of dispute. Temporary injunctions, admitted have been obtained by the respective parties, That being the position, either party is, restrained from; usurping possession and in such a situation it would hardly he necessary to invoke assistance of Section 145. It has to be understood that the essence behind a proceeding under Section 145 is the fear of breach of peace which is likely result when one party attempts to dispossess the other. If the Civil Court is seized of the matter and temporary, injunctions have been obtained, there is hardlv any necessity for duplication of proceeding before the Criminal Court. It has been foeld in Ram Lal and Sant Ram v. State 1971 HLR 294 (super) that Criminal Court should be year, eautipus in passing orders under Section 145 where there is a civil titillation already pending An a Civil Court. Where to civil suit is pending and an interim injunctions has been obtained, there may be circumstances to indicate that it would be a futile exercise to lert Betties waste their time on-getting an en-cry made by the magistrate by proceeds pending under Section 145 because the order of the Civil Court always overrides the decision of the Criminal Court .in such matters. At the same time, in a particular situation despite the pendency of a civil suit, a proceeding under Section 145 may be justified; But for that a definite finding has to be arrived at by the Magistrate that despite tip tendency of the civil suit someone is likely to dispossess the other with attending circumstances so that breach of peace is likely to be committed. After hearing the learned Counsel and after considering the facts and circurristahces made out, I am of the opinion that no such contingency seems to forfeit the present base. Therefore, Streritire proceeding which is pendinfe tmdlfi1 Section 145 Shall be quasihed on this ground, rather on the ground set out by the learned Sessions Judge.

5. In the result, I do not accent the reference made by,, the learned Sessions Judge as such, but quash the wielding on a different ground than what secures to have prevailed upon the learned Sessions Judge. The result is that the proceeding under Section 145, shall be quashed.


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