Himachal Pradesh High Court
Mohammad Tarik & Anr vs Sardar Jaspal Singh on 15 December, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO No. 203 of 2015.
.
Reserved on: 19.9.2016.
Decided on: 15.12.2016.
Mohammad Tarik & anr. ......Petitioners.
of
Versus
Sardar Jaspal Singh .......Respondent.
Coram
rt
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting? 1. Yes.
For the petitioners: Mr. G.C.Gupta, Sr. Advocate with Ms. Meera Devi,
Advocate.
For the respondents: Mr. G.D.Verma, Sr. Advocate with Mr. B.C.Verma,
Advocate.
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Justice Dharam Chand Chaudhary, J.
The petitioners herein are complainants. They are aggrieved by the judgment dated 2.6.2015 passed by learned Addl. Sessions Judge (II), Shimla, in Cr.
Revision No. 1-S/10/2015 whereby the Revision Petition has been dismissed and the order dated 16.12.2014, 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 2Annexure P-5 passed in an application filed with a prayer to stay pending proceedings under Section 145 .
Cr.P.C. has been dismissed by learned Sub Divisional Magistrate, Shimla (Urban).
2. The complaint is that the question qua title of of shop No. 123/7, Lower Bazar Shimla, the subject matter rt of dispute in the present lis and as to which party is entitled to the possession thereof is pending disposal before a competent Civil Court having jurisdiction over the matter and as such, the proceedings under Section 145 Cr.P.C. pending disposal before learned Magistrate below should have been stayed. The learned Magistrate has, however, dismissed the application vide order dated 16.12.2014, Annexure P-5 erroneously and without application of mind. Likewise, the Court of Revision is also stated to have erroneously dismissed the Revision Petition without appreciation of the given facts and circumstances and also the material available on record ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 3 in its right perspective vide judgment under challenge.
Such an approach has resulted in mis-carriage of .
justice to the petitioners as according to them, parallel proceedings i.e. both criminal and civil would have not been allowed to go simultaneously and rather ends of of justice would have met by staying the proceedings rt under Section 145 Cr.P.C. pending before learned Magistrate below. Said proceedings, according to the petitioners, could have been revived and disposed of after the decision of the dispute qua ownership and possession of the disputed shop by the civil Court.
3. It is the petitioners, who allegedly are held to be in possession of disputed shop and running business therein, therefore, the proceedings under Sections 145 & 146 Cr.P.C. were not maintainable. It is pointed out that as per the settled legal principles where the civil litigation regarding the property in dispute is pending and the question of title and possession thereof is the ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 4 subject matter of dispute in that lis, the Executive Magistrate has no jurisdiction to proceed further in the .
complaint under Section 145 Cr.P.C.
4. In order to decide the fate of this petition, it is desirable to take note of the facts in a nut shell. Sardar of Jaspal Singh respondent-herein claims himself to be in rt possession of the disputed shop on payment of Rs.
6,000/- per month as rent to the petitioners herein. On 30.10.2011, the petitioners along with Titu and other persons came to the shop and asked for keys thereof from the respondent. He was threatened to do away with his life. The petitioners called the respondent for a meeting scheduled to be held on the next date i.e. 31.10.2011 in a hotel. He was confined in a cabin there. He, on one way or the other, could make his escape good from their hands. Later on, 20-25 persons appeared on the spot and started throwing articles from the disputed shop. Clothes worth Rs. 7-8 lacs lying ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 5 inside the shop were destroyed. Respondent Sardar Jaspal Singh (hereinafter referred to as the complainant) .
had thus made a complaint under Section 145 Cr.P.C.
against the petitioners (hereinafter referred to as the respondents) before the local police. The investigation of was conducted by the police and Kalandra under rt Sections 145 and 146 of the Code of Criminal Procedure filed before Sub Divisional Magistrate, Shimla (U). The Magistrate, finding apprehension of breach of peace, vide order dated 16.12.2014, Annexure P-5 has ordered to attach the disputed premises while exercising powers under Section 146 (1) Cr.P.C and has ordered that the disputed premises shall remain locked and sealed during the pendency of the proceedings under Section 145 of the Code of Criminal Procedure. It is, this order which was assailed before Revisional Court by the respondents. Learned Addl. Sessions Judge has, ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 6 however, dismissed the Revision Petition and affirmed the order annexure P-5.
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5. It is seen that learned Magistrate had initially ordered to close the complaint vide order dated 3.11.2011, which reads as follows:
of "03.11.2011:-
Applicant along with counsel Sh. Ankur rt Sud, Advocate. Complaint under Section 145 Cr.P.C. presented before me on 01.11.2011 and was forwarded to the SHO concerned for report.
Brief facts of the case are that Police Station, Sadar, Shimla has submitted the report on 01.11.2011 before this Court. Police reported that FIR No. 231/11, dated 31.10.2011 under Sections 448 and 342 IPC has been registered against Sardar Jaspal Singh. Police further reported that the shop was locked by the respondent and the articles lying in the shop are of complainant.
In view of the report of police and
document attached with the application,
prima-facie no case is made out for
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7
proceedings under Section 145 Cr.P.C. It is
suggested apprehension of the breach of the .
peace which is little more than colourable and made simply to induce this Court to deal with the matters properly cognizable by a Civil Court. Hence, this Court should not exercise of jurisdiction in this case. It become clear that the present dispute is not regarding rt possession, but the eviction of tenant. This is a dispute between the land owner and tenant (private dispute). Police has not quoted the events in the report. In the absence of breach of peace this Court has no jurisdiction to hold an enquiry under this Section. Application is disposed of. The same is to be decided by the Civil Court.
Announced in open Court. Case filed be consigned to G.R.R. Sd/-
(Rajiv Kumar) Sub Divisional Magistrate, Shimla (Urban)."
6. This order was assailed in Sessions Court in Cr. Revision No. 36-S/10 of 2011, which was allowed by ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 8 learned Sessions Judge, Shimla, vide order dated 16.4.2012, Annexure P-1 with the following .
observations:
"...The order under revision was wrong, illegal and is set aside. The proceedings are of remanded to learned Sub Divisional Magistrate for action as per law. The parties are directed rt to appear before the Sub Divisional Magistrate (Urban), Shimla on 20.4.2012."
7. Order Annexure P-1 was further assailed in this Court by the complainant Sardar Jaspal Singh in Cr.MMO No. 191/2012. The Coordinate Bench of this Court has disposed of the petition vide judgment dated 16.4.2013, Annexure P-2 which reads as follows:
"Undisputedly, Wakf Board as also present respondent No.2, Mohamamd Tarik have initiated proceedings before the Civil Court. In these proceedings, petitioner (Shri Jaspal Singh) has assailed the initiation of proceedings under the provisions of Sections 145, 146, 107 of the Cr.P.C.
The present petition is disposed of, keeping in view the subsequent ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 9 developments, with direction to the Sub Divisional Magistrate, Shimla (U) to dispose of the proceedings .
(Kalandra) initiated under the provisions of Sections 145, 146, 107 of the Cr.P.C., preferred by Police Station, Sadar, District Shimla.
Pending application(s), if any, also stand disposed of."
of
8. It is, therefore, seen that the Coordinate Bench after taking note of the institution of proceedings in the rt Civil Court qua the disputed shop not only by the H.P. Wakf Board but also respondent No. 1 Mohammad Tarik, has disposed of the petition with a direction to learned Magistrate below to dispose of the proceedings (Kalandra) initiated under the provisions of Section 145 and 146 Cr.P.C. The respondent did not challenge the judgment Annexure P-2 passed by this Court in earlier round of litigation, however, preferred an application before learned Sub Divisional Magistrate, Shimla (U) with a prayer to stay the pending proceedings under Section 145 and 146 Cr.P.C. till the final outcome of pending civil litigation between the parties. Learned ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 10 Magistrate has considered the application and disposed of the same vide a reasoned order Annexure P-5 after .
taking note of the case law as directed in the given facts and circumstances of the case and also the direction of this Court in the judgment Annexure P-2 to dispose of of the proceedings (Kalandra) under Section 145 & 146 Cr.P.C.
rt
9. Mr. G.C.Gupta, Sr. Advocate assisted by Ms. Meera Devi, Advocate, has strenuously contended that allowing the proceedings under Section 145 Cr.P.C. to continue before learned Magistrate below, will amount to abuse of the process of law. According to Mr. Gupta, when the question of title and also as to which party is entitled to the possession of the disputed shop is to be decided by the Civil Court, therefore, on passing of the order qua attachment of the disputed premises under Section 146(1) Cr.P.C., the Magistrate below should ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 11 have stayed the proceedings under Section 145 Cr.P.C.
till the disposal of pending civil litigation.
.
10. On the other hand, Mr. G.D.Verma, Sr. Advocate, assisted by Mr. B.C.Verma, Advocate, while repelling the contentions raised on behalf of of respondents has strenuously contended that in the rt proceedings under Section 145 Cr.P.C., neither question of title of the disputed shop nor as to who is entitled to be in possession thereof is to be decided and rather it is only a question as to which party was in actual possession thereof at the time of filing of the complaint has to be determined. Therefore, according to Mr. Verma, the pending civil litigation cannot be treated a bar in deciding the proceedings under Section 145 Cr.P.C. by the Magistrate.
11. On analysing the rival submissions and also the material available on record, it would not be improper to conclude that learned Magistrate and for ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 12 that matter learned Addl. Sessions Judge (II), Shimla has not committed any illegality or irregularity while .
dismissing the application filed by the respondents before the Executive Magistrate with a prayer to stay the proceedings under Section 145 Cr.P.C. pending of adjudication of civil litigation between the parties for the rt reason that no doubt the question of title and also as to which of the party is entitled to possession of the disputed shop has to be decided by a competent Civil Court in pending civil litigation instituted by H.P. Wakf Board and also respondent No. 1. However, the pendency of the civil litigation cannot be treated a bar in the matter of deciding the proceedings under Section 145 Cr.P.C. by the Magistrate for the reason that the Executive Magistrate has only to determine from the material available on record as to which party is in actual possession of the disputed shop. That question can be decided irrespective of civil litigation pending ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 13 adjudication between the parties in the civil Court.
Otherwise also, civil Court has neither yet decided the .
question of title of the disputed shop nor as to which party is entitled to the possession thereof. Merely that vide order dated 3.4.2012 passed in an application of under Order 39 Rules 1 & 2 read with Section 151 CPC rt filed by H.P. Wakf Board, registered as case No. 25-S/6 of 2012/11 in Civil Suit No. 23-S/1 of 2011 learned District Judge, Shimla, while exercising the powers of Wakf Tribunal has restrained defendant No. 1 Sardar Jaspal Singh, complainant herein from transferring the possession of the disputed shop further to a third party and both i.e. complainant and respondent No. 1 have been restrained from carrying out partition of the disputed shop, cannot be taken to infer that the findings qua the question of title and the entitlement of the possession over the disputed shop have been given by the Civil Court. Support in this regard can be drawn ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 14 from the bare perusal of Section 145 Cr.P.C. which reads as under:
.
"145. Procedure where dispute concerning land or water is likely to cause breach of peace.
(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to of cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, rt and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
........
..........
(4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub- section (1), in possession of the subject of dispute:
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1)."::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 15
12. In the context of present controversy, the provisions contained under Section 146 Cr.P.C. which .
read as follows are also relevant:
"146. Power to attach subject of dispute and to appoint receiver. (1) If the Magistrate at any time after making the order under sub- section (1) of section 145 considers the case to be one of emergency, of or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of rt dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof:
Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute."
13. It is thus seen that Section 145(4) empowers the Magistrate to decide the question as to which of the party was in actual possession of the subject matter of dispute on the date when an order under Section 145(1) is passed by him. In emergent circumstances, Section 146(1) clothes the Executive Magistrate with power to attach the subject matter of dispute qua which order under Section 145(4) Cr.P.C. was passed. The Punjab ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 16 and Haryana High Court in Ram Avtar and other vs. State of Haryana and others, 2013 (3) Cr. Court .
Cases 771 (P & H), has held that when there is only question as to which of the party was in possession of subject matter of dispute, the Magistrate is empowered of to take cognizance of the complaint under Section 145 rt Cr.P.C. even during the pendency of civil proceedings.
14. It would, therefore, not be improper to conclude that the proceedings under Section 145 Cr.P.C. are preventive in nature to maintain peace. The judgment of the Apex Court in Bhinka & ors. Vs. Charan Singh, AIR 1959 SC 960, relied upon by learned counsel representing the respondents is not attracted in the given facts and circumstances as here in the case in hand Executive Magistrate has not decided the question of title and possession and rather it has only to be determined that the question as to who was in actual and physical possession of the disputed ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 17 shop on the day when an order to this effect has to be passed by him. It is on account of successive revisions .
and petitions under Section 482 Cr.P.C. in this Court, the Magistrate could not pass such order earlier in the complaint which was filed long back in the year 2011.
of Therefore, the present is a fit case where the Executive rt Magistrate below should be allowed to continue with the proceedings under Section 145 Cr.P.C. and to pass appropriate orders in the light of the observations hereinabove and also in accordance with law. So far as this petition is concerned, the same being devoid of any merits deserves dismissal.
15. For the reasons hereinabove, this petition fails and the same is accordingly dismissed. The parties, through learned counsel representing them are directed to appear before learned Sub Divisional Magistrate Shimla (U) on 9.1.2017. There shall be a direction to learned Magistrate below to decide the proceedings ::: Downloaded on - 15/04/2017 21:45:01 :::HCHP 18 expeditiously, however, not beyond the period of three months.
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16. Records be sent back along with a copy of this judgment so as to reach the learned Magistrate well before the date fixed.
of
December 15, 2016, ( Dharam Chand Chaudhary ),
(karan-) rt Judge.
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