Skip to content


Kuldip Singh and ors. Vs. the State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1977CriLJ1848
AppellantKuldip Singh and ors.
RespondentThe State of Himachal Pradesh and ors.
Cases ReferredIn Konal Ram v. Rattan Dassi
Excerpt:
- .....for the petitioners is that in view of the fact that kuldip singh and others had already filed a civil suit before the initiation of the proceedings under section 145, cr. p. c. and that the court had already issued an injunction order restraining the present respondents from interfering with the possession of the petitioners and as such the order of attachment and the appointment of receiver by the sub divisional magistrate was quite illegal and unwarranted and that the same was liable to be quashed. the petitioners have filed a copy of the interim injunction granted by the sub judge on 30-3-1976 in civil suit no. 67 of 1976, titled kuldip singh v. rasila ram. the injunction order reads as under :ld. counsel for the applicant. ad interim injunction is granted in favour of the.....
Judgment:
ORDER

Chet Ram Thakur, J.

1. This petition Under Sections 397, 401 and 482 of the Cr. P. C., read with Article 227 of the Constitution of India, is directed against the order, dated 13-7-1976 passed by the Sub Divisional Magistrate, Kangra, in proceedings Under Section 145, Cr. P. C. initiated by Rosfaan Lal and three others (the second party) against Kuldip Singh and three others (the first party). According to the application which was filed before the police the first party, i. e. Roshan Lal and others who allege themselves the tenants of the land had sown paddy crop in the land khasra No. 160 situate in Mahal Maner, Tehsil Kangra and that Kuldip Singh and others who are the owners were trying to take unlawful possession by showing threats and, therefore, according to Roshan Lal and others there was an imminent danger of breach of peace. The learned Magistrate made a preliminary order on 26-6-1976 and directed the 'parties to show cause and put in written statements relating to the fact of actual possession over the said land. After examining the evidence, the Magistrate came to the conclusion that the was satisfied that a case of emergency was made out and that he was unable to satisfy as to which of the party was in actual possession. He, therefore, attached the property till 29-6-1976 and issued a show cause notice as contemplated Under Section 146, Cr. P. C. as to why the land in dispute be not attached during the pendency of the proceedings and the order be made absolute. Kuldip Singh and others appeared and adduced evidence to show that they were in possession. It was also stated in the order that both the parties were claiming their respective possession and in spite of the fact that they had instituted cases in revenue and civil courts there are frequent clashes between them and that there were circumstances sufficient for him to satisfy that there was an apprehension of breach of peace between the parties and as such he held that the property was to be attached till the parties were able to get the matter decided in the proper court of law. He, therefore, made the preliminary order, dated 29-6-1976, absolute. It is against this order that Kuldip Singh and others have come up in revision.

2. The submission made by the learned Counsel for the petitioners is that in view of the fact that Kuldip Singh and others had already filed a civil suit before the initiation of the proceedings Under Section 145, Cr. P. C. and that the court had already issued an injunction order restraining the present respondents from interfering with the possession of the petitioners and as such the order of attachment and the appointment of receiver by the Sub Divisional Magistrate was quite illegal and unwarranted and that the same was liable to be quashed. The petitioners have filed a copy of the interim injunction granted by the Sub Judge on 30-3-1976 in Civil Suit No. 67 of 1976, titled Kuldip Singh v. Rasila Ram. The injunction order reads as under :

Ld. counsel for the applicant. Ad interim injunction is granted in favour of the applicant. The respondents are restrained from interfering in the suit land till further orders. They can show cause on 24-5-1976.

Sd/- Sub Judge 1st Class,

Kangra.

3. Prom this copy of the order it is manifest that Kuldip Singh had filed a suit and an application for temporary injunction restraining the defendants from interfering in the land had been made and that a temporary ex parte injunction as prayed for was granted on 30-3-1976. This order was to hold good till further orders and the defendants were required to show cause on 24-5-1976. The application Under Section 145, Cr. P. C. was initiated on 18-6-1976 at the instance of Roshan Lal and others. Therefore, it is not known whether the ad interim injunction issued on 30-3-1976 had really been confirmed on 24-5-1976 or the same was vacated because the applicants Kuldip Singh and others did not file the subsequent order of the court. Therefore, it is difficult to say as to what was the position that obtained after 24-5-1976, whether there was any injunction order operating after that date. Therefore, if there is no stay order passed by the civil court and there is a dispute which exists and it is likely to cause a breach of peace then in that event if the Magistrate is fully satisfied that in order to avert any danger of breach of peace it is expedient in the interest of justice to attach the property, about the possession of which he has got no definite evidence, he has the jurisdiction to pass an order Under Section 145 of the Cr. P. C.

4. It has been held in Ram Lal v. State and Sant Ram v. State 1971 Hindu LR 294 by this Court that the existence of an apprehension of a breach of the peace being the foundation of the jurisdiction to act Under Section 145, Cr. p. C., the legality of the preventive proceedings Under Section 145, Cr. P. C., is not affected by the pendency of a civil suit. In that case neither the nature of the suit which was pending between the parties nor the existence of any order in the suit had been shown to the Court. So, it was in these circumstances that the Court held that the legality of the preventive proceedings Under Section 145, Cr. P. C. is not affected by the pendency of a civil suit.

5. In Konal Ram v. Rattan Dassi 1971 Hindu LR 346 also decided by this Court a similar view was taken and it was held that in some case the pendency of civil suit may be taken into account in considering whether an order Under Section 145, Cr. P. C, is called for or not. For example, in a suit where there is an interim injunction by a civil court it may be futile to let parties waste the time of the Enquiring Magistrate by proceedings Under Section 145, Cr. P. C. But in a case such as the one before us, in which one of the parties has actually filed a suit for possession, thereby admitting that he is out of possession, it is quite conceivable that this party may try to obtain possession illegally even before the suit is decided. In such a case, if there is an apprehension of the breach of the peace the Magistrate will be justified in discharging his duty to prevent an outbreak of violence by an appropriate order Under Section 145, Cr. P. C., notwithstanding the pendency of a civil suit. The jurisdiction of the Magistrate depends upon the existence of an apprehension of a breach of the peace. It does not depend upon whether a civil suit has or has not been filed. It is true that, the life of an order Under Section 145, Cr. P. C., may come to an end with the decision of the dispute by a Civil Court in a suit, but, that does not mean that the jurisdiction of the Magistrate is affected by the pendency of the suit at the time when the proceedings Under Section 145, Cr. P. C, are initiated or terminated.

6. Therefore, in the light of these observations it is quite manifest that although a suit has been filed but the nature of this suit cannot be found out from the copy of the order filed. The head note of the copy of the order says that it was an application Under Order 39, Rules 1 and 2, C. p. C. for issue of a temporary injunction firstly to restrain the defendants from interfering in the land and secondly from restraining the defendants from getting an entry made in the revenue record in their name. The petitioners have not filed the copy of the plaint nor any subsequent order whether this injunction was set aside or it was affirmed. In these circumstances the mere pendency of the civil suit will not affect the jurisdiction of the Sub Divisional Magistrate to pass an order under challenge. In these circumstances this order appears to be correct and the petition, therefore, fails and is hereby dismissed.


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