Delhi High Court
Jagdish Gandhi & Another vs State & Another on 3 October, 2008
Author: S.L.Bhayana
Bench: S.L. Bhayana
HIGH COURT OF DELHI AT NEW DELHI
Crl. Rev. P. 383/2007 & Crl.M.A. 6405/2007
Date of Decision:- October 03, 2008
Jagdish Gandhi & Another ... Petitioners
Through: Mr. Sandeep Sethi, Sr.
Adv. with Mr. Manoj v. George,
Adv.
Versus
State & Another ... Respondents
Through: Mr. A.K. Gupta, Adv. for
State/R-1
Mr. Siddharth Luthra, Sr. Adv. with
Mr. Virender Rawat & Mohd. Faraz,
Advs. for R-2
CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local paper may be
allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be referred in
the Digest? Yes
S. L. BHAYANA, J.
This criminal revision petition is directed against the order-dated 18.05.2007, for the issuance of appropriate orders and to set aside the order passed by the Sub Divisional Magistrate (hereinafter to be referred as „SDM‟). Operative part of the order reads as under:-
"In view of the above discussion, evaluating the matter on record, statement of witness in the court, cross examination and arguments made by the counsel for the both the parties, I Crl. R. P. No. 383/2007 Page 1 of 10 Vishwendra, Sub-Divisional Magistrate, Vasant Vihar as per the powers conferred to me U/S 145 CrPC hereby decide that the suit property i.e. shop No. 64 of Sarojini Nagar Market was in possession of Sh. S.K. Gandhi prior to initiation of this case and was dispossessed partially from the suit property. Hence possession of Sh. S.K. Gandhi, party no. 1 is hereby restored and party no. 2 i.e. Sh. Jagdish Gandhi and Sh. Pritam Gandhi are evicted from the suit property."
2. Firstly, I am dealing with the primary objection of the respondents about the maintainability of present revision petition, as per learned counsel for the respondents Revision is only supervisionary in nature and the revisional Court can only set right legal errors or defects but cannot reappraise the evidence. Once the SDM has expressed that he was satisfied about all the aspects contemplated under Section 145 of Cr.P.C. after considering all facts and circumstances hence there is no scope for exercising revisionary jurisdiction in this case.
3. Now with regard to the objection raised herein above, this Court under revisionary jurisdiction is fully empowered to ensure that the decision is as per the cannons of criminal jurisprudence and there is no miscarriage of justice, as to check the correctness, legality and impropriety of an order is within the domain of scrutiny in revisional jurisdiction. Crl. R. P. No. 383/2007 Page 2 of 10
4. I, therefore, overrule the primary objection and hold that present revision petition is maintainable.
5. At the outset learned counsel for the petitioners has argued that there are only two legal points involved in this revision petition which need decision by this Court. First is whether one liner preliminary order dated 5.5.2004 passed by SDM directing to register a case under Section 145 Cr.P.C. is against the mandate of Sub-section (1) of Section 145 of Cr.P.C. as in the same there is no whisper of any apprehension of breach of peace and about his personal satisfaction of the same. SDM has failed to record the reasons for his satisfaction to act under Section 145 Cr.P.C. and second point, which needs decision according to, learned counsel for the petitioners is that the learned SDM while passing the final order has over-stepped the jurisdiction vested in him. As the scope of Section 145 Cr.P.C. is limited to the extent of ascertaining the dispossession only. Section 145 Cr.P.C. is mainly concerned with possession of the property in dispute on the date of impugned order and dispossession, if any, within two months prior to that date and hence SDM had over-stepped in granting exclusive possession of the Shop No. 64 to the respondent No.2 alone and, therefore, order dated 18.5.2007 deserves to be set aside.
6. It will be seen from the facts as to whether the mandate of Section 145 Cr.P.C. has been followed or not. It is Crl. R. P. No. 383/2007 Page 3 of 10 a common case that Shop No. 64, Sarojini Nagar Market was in the name of late Smt. Rukmini Devi, mother of the parties and late Shri Gulshan Gandhi, brother of the parties was running a business from this shop as a sole proprietor of M/s. Gulshan Fabrics, Sarojini Nagar till his death on 6.9.2003.
7. Now as per the petitioners‟ submissions aforesaid Shop remained closed for few days after the death of Gulshan Gandhi. On 18.11.2003, all the three brothers moved into the said property together as late Gulshan Gandhi died intestate and being unmarried had left no heirs and as per family arrangement Shop No. 64 (58 ft long and 13.5 ft. width) was partitioned into three portions. All the three brothers were carrying on their business from the same premises from their respective portions.
8. Learned counsel for the petitioners submitted that on 21.3.2004 in order to grab the whole shop in question, the respondent No.2 had picked up a fight with the petitioners who were in a peaceful possession of their respective portions and as a result a complaint was lodged at PS Sarojini Nagar vide DD Entry No. 30 dated 21.3.2004 but which was ultimately compromised between the parties on the same day as is clear from DD Entry No. 3A, annexed as Annexure P-4 with Rejoinder of the petitioner‟s that the matter is regarding the division of Crl. R. P. No. 383/2007 Page 4 of 10 the Shop No. 64 between the parties and after intervention of the relatives both the parties do not want any further intervention of the Police.
9. On the other hand, learned counsel for the respondents urged that although the shop is in the name of their mother but they were carrying on their business under the name and style of Gulshan fabrics since 1958 and they were in exclusive possession of the shop. Again learned counsel contended that on 14.11.2003 respondent No. 2 lodged a complaint against the petitioners regarding the dispute.
10. On this, learned counsel for the petitioners averred that there was no complaint made by the respondent No.2 on 14.11.2003, which is why the said complaint has not been filed by the respondent No.2 in any of the proceedings in this matter before any Court.
11. I have heard learned counsel for the parties at considerable length. After consideration of the aforesaid arguments and after going through the order -dated 18.5.2007 in which I do not find any mention of complaint dated 14.11.2003. This Court finds that the SDM has over-stepped the jurisdiction vested in him in a proceedings under Section 145 Cr.P.C. He should have remained confined to the limits of Crl. R. P. No. 383/2007 Page 5 of 10 Section 145 Cr.P.C. The object of Section 145 Cr.P.C. is to provide a speedy remedy for the prevention of breach of peace arising out of disputes relating to immovable property. The Code contemplates a determination of this question without any reference to the merits of the respective claims of the disputing parties as to the „right to possess‟ the subject matter of dispute. The question of possession, moreover, has to be determined with reference to a specified point of time as specified in the Section 145 of Cr. P.C, namely the date of the initial order, or in the case of forcible dispossession, the date within two months next preceding the date on which the report of a police officer or other information regarding the dispute was received by the Magistrate.
12. In this case, it will be seen from the facts stated above as to whether the provision of Section 145 of Cr.P.C has been properly complied with or not. The order under Section 145(1) Cr.P.C. was passed by the SDM on 5.5.2004. In order to take preventive action under Section 145 Cr.P.C, two essential conditions must be satisfied (i) there must be dispute relating to land or other objects mentioned in Sub-section (1) and (ii) the dispute is likely to cause a breach of peace. If there is no dispute there is no obligation on the part of the SDM to pass orders under Section 145 Cr.P.C. The SDM exercising jurisdiction under this Section must be satisfied about these Crl. R. P. No. 383/2007 Page 6 of 10 two conditions either from a police report or from any other information, which might include an application, by the dispossessed person. The term „satisfied‟ is of considerable expansiveness, which means free from anxiety, doubt, perplexity, or uncertainty. The satisfaction of the Magistrate must be clear and unambiguous. Nothing short of that can give him jurisdiction under Section 145 Cr.P.C. So is held in Laxman v. Bahim Khan, 1976 Crl.L.J. 1492 and Lala Ram v. R.R. Bainswal 1981 Crl.J. 981 (P & H High Court).
13. Now the question is whether the SDM could have passed any order in favour of the respondent No.2 under Sub- Section (4) of Section 145 Cr.P.C. After going by the relevant Sub-section (4) of Section 145 Cr.P.C. it is clear that the Magistrate could initially decide who was in possession as on the date when the order under Sub-section (1) of section 145 Cr.P.C. was passed i.e on 5.5.2004. In case where the proviso to the said Sub-section (4) of 145 Cr.P.C. applied, that is, if it appeared to the Magistrate that any party had 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) of 145 Cr.P.C, the Magistrate might treat the party so dispossessed as if the said party had been in possession on the date of his order Crl. R. P. No. 383/2007 Page 7 of 10 under Sub-section (1) of 145 Cr.P.C. In other words, if the conditions mentioned in the proviso to Sub-Section (4) were satisfied, the Magistrate could deem a person to be in possession as on the date of the order under Sub-section (1) of 145 Cr.P.C, notwithstanding the fact that he was, in fact, not in possession on that date, but lost possession earlier, within two months next before the order. In this case unfortunately, there is no material to show that the Magistrate received any report of a police officer or other information within the contemplated period by the proviso. As the respondent No.2/ 1st party before the SDM court, lost possession much before the period mentioned in the provision of Sub-section (4) of Section 145 Cr.P.C. i.e. on 18.11.2003, when all the three brothers as per the family arrangement partitioned the said shop in their respective shares and continued their business.
14. Sub-section (1) of Section 145 Cr.P.C. requires that while making the impugned order in writing the Magistrate shall state „the grounds of his being so satisfied‟. This impugned order is considered so basic that a failure to draw it up can vitiate all the subsequent proceedings. Similar view is taken in Mathuralal v. Bhanwarlal (1979) 4 SCC 665 [see also Gabriol Thankayyan v. Narayanan Nadar 1977 Crl.L.J. 1870 (Kerala High Court) and Banney v. Ramesh Chandra 1983 Crl.L.J. 18 (Allahbad H.C.)].
Crl. R. P. No. 383/2007 Page 8 of 10
15. It appears that SDM has misdirected himself by concentrating on the question of „ownership‟ rather than on the question of "actual possession". It is amply clear that under Section 145 Cr.P.C., Executive Magistrate is required to find out the actual possession without considering the right of a party to remain in possession. Since the SDM had concentrated more on the question of ownership i.e. to say the right to possess. The Judgment is bad in law. Same is the mandate of latest judgment of the Supreme Court in Shanti Kumar Panda v. Shakuntala Devi (2004) 1 SCC 438, as enunciated in para 10 of the judgment which reads as under:-
10. Possession is nine points in law. One purpose of the enforcement of the laws is to maintain peace and order in society. The disputes relating to property should be settled in a civilized manner by having recourse to law and not by taking the law in own hands by members of society. A dispute relating to any land etc. as defined in Sub-section (2) of Section 145 having arisen, causing a likelihood of a breach of the peace, Section 145 of the Code authorizes the Executive Magistrate to take cognizance of the dispute and settle the same by holding an enquiry into possession as distinguished from right to possession or title. The proceedings under Sections 145/146 of the Code have been held to be quasi-civil, quasi-
criminal in nature or an executive on police action. The purpose of the provisions is to provide a speedy and summary remedy so as to prevent a breach of the peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property. The Magistrate having taken cognizance of the dispute would confine himself to ascertaining which of the disputing parties was in possession by reference to the date of the preliminary order or within two months next before the said date, as Crl. R. P. No. 383/2007 Page 9 of 10 referred to in proviso to Subsection (4) of Section 145, and maintain the status quo as to possession until the entitlement to possession was determined by a court, having competence to enter into adjudication of civil rights, which an Executive Magistrate cannot. The Executive Magistrate would not take cognizance of the dispute if it is referable only to ownership or right to possession and is not over possession simpliciter; so also the Executive Magistrate would refuse to interfere if there is no likelihood of breach of the peace or if the likelihood of breach of peace though existed at a previous point of time, had ceased to exist by the time he was called upon to pronounce the final order so far as he was concerned.
16. Prima facie, it appears to me that instead of taking recourse to the normal procedure of civil court for lawful possession, the respondent No.2 hereinabove, has adopted an illegal device to dispossess his own brothers from the shop.
17. Having considered the entire conspectus of the revision petition, I set aside the order of learned SDM dated 18/05/2007, delivering the possession of the Shop No. 64 to the respondent No.2 alone and direct that the possession of the respective portions of the Shop would be forthwith restored to the petitioners temporarily unless evicted in due course of law and directing the petitioners also that the petitioners would deliver peaceful and vacant possession of the premises as and when required by the civil Court in the proceedings pending before it.
S. L. BHAYANA
October 03, 2008 (Judge)
ss
Crl. R. P. No. 383/2007 Page 10 of 10