Punjab-Haryana High Court
Gurnam Singh And Another vs State Of Punjab And Others on 12 December, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM No.M-22585 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.M-22585 of 2012(O&M)
Date of Decision:12.12.2012
Gurnam Singh and another .....Petitioners
Versus
State of Punjab and others .....Respondents
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.A.D.S.Jattana, Advocate,
for the petitioners.
Ms.Amarjit Kaur Khurana, Addl.Advocate General,
Punjab, for respondent Nos.1 to 4.
Nemo for respondent Nos.5 to 10.
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MEHINDER SINGH SULLAR , J.(oral) The matrix of the facts and material, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record is that, there was a civil dispute between the petitioners on one side and complainant-Bahadur Singh son of Gurcharan Singh(respondent No.8) and others on the other side, with regard to the possession of the land in question. Apprehending their illegal dispossession, petitioner No.1- Gurnam Singh son of Channan Singh son of Gian Singh and Lal Singh son of Bikram Singh son of Gian Singh(plaintiffs therein), have filed a civil suit(Annexure P-2) for the grant of a decree of permanent injunction, restraining the complainant-respondent No.8 Bahadur Singh and others(defendants therein), from interfering into their lawful and CRM No.M-22585 of 2012 2 peaceful possession over the suit land. Sequelly, they have also filed an application for ad interim injunction under Order 39 Rules 1 and 2 read with Section 151 CPC in the same context.
2. After hearing the learned counsel for the plaintiffs(therein), the civil court restrained the defendants(therein) from dispossessing them from the suit land, without following the due course of law, by means of order dated 28.06.2012(Annexure P-2)(Colly.). Not only that, the Punjab State Human Rights Commission, referred the complaint dated 16.06.2012 filed by petitioner No.2-Kulwinder Singh against Bahadur Singh(respondent No.8) and others to the Senior Superintendent of Police, Moga, for its expeditious disposal, by virtue of order dated 05.07.2012(Annexure P-3).
3. Strange enough, in spite thereof, in pursuance of the application filed by complainant-Bahadur Singh, the police of Police Station Baghapurana, arrested the petitioners and initiated the security proceedings, as contemplated under Sections 107 and 151 Cr.P.C., by way of impugned Calendar dated 05.07.2012(Annexure P-4).
4. Aggrieved thereby, the petitioners have preferred the present petition, to set aside the impugned Calendar(Annexure P-4), invoking the provisions of Section 482 Cr.P.C.
5. After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration of the entire matter, to my mind, the impugned Calendar(Annexure P-4) cannot legally be sustained.
6. As is evident from the record that, Gurnam Singh(petitioner CRM No.M-22585 of 2012 3 No.1) has been described as owner and he along with his brothers have been shown in possession of the land in dispute in Jamabandi for the year 2005-2006(Annexure P-1)(Colly.). Not only that, in the wake of civil suit, the civil court prima facie found the petitioners(plaintiffs therein) in possession and restrained complainant-Bahadur Singh and others (defendants therein) from dispossessing them from the land in dispute, except in due course of law, through the medium of order dated 28.06.2012(Annexure P-2)(Colly.).
7. As described here-in-above, the official respondents have initiated the security proceedings against the petitioners, vide impugned Calendar(Annexure P-4). Section 107 Cr.P.C. postulates that when an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may, require such person to show cause as to why he should not order to execute a bond for keeping the peace for such period not exceeding one year.
8. Likewise, Section 151 Cr.P.C. posits that a police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.
9. A conjoint reading of these provisions would reveal that a person can only be arrested under these Sections, if the police knew and CRM No.M-22585 of 2012 4 satisfied that the offender had a definite design to commit a cognizable offence in a particular manner and the commission of such offence could not otherwise be prevented, except the arrest of that person. Sequelly, if the Executive Magistrate receives a definite information that such person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and that there is sufficient ground for proceeding, only then he can require such person to show cause as to why he should not order to execute a bond for keeping the peace for such period and not otherwise. The mere apprehension to commit an offence is not sufficient and something more, including other overt-act, which is a step-in-aid to commit such offence, is essential, to invoke these provisions. Such power of the police is very limited and required to be invoked in exceptional circumstances, as the liberty of a person is involved. These preventive provisions are not intended to afford the police a means of getting hold of a person against whom they cannot prove an offence or to enable them to detain him until they can work out a case against him or to please the influential persons. The crucial words occurring in these Sections, "is likely and not were likely", are very important and carry a significant meaning that violence in the past does not justify the indicated action. Meaning thereby, these provisions refer to personal dispute not concerning immovable property, whereas Section 145 Cr.P.C. mandatorily refers to a dispute relating to the land and matter connected therewith.
10. Such, thus, being the legal position, now the short and CRM No.M-22585 of 2012 5 significant question, though important, that arises for determination in this petition is, as to whether, the security proceedings under Sections 107 and 151 Cr.P.C. can legally be initiated against the petitioners under the present set of circumstances or not?
11. Having regard to the rival contentions of the learned counsel for the parties and material on record, to me, the answer must obviously be in the negative in this respect.
12. As is amply clear that, the main grounds, which appear to have been weighed with the concerned police officer, to initiate the security proceedings against the petitioners were that, both the parties were asserting their respective rights of ownership/possession of the suit land and there was a chance of disturbance of peace in the area. Neither any other overt-act or specific role, which would lead and relatable to the future disturbance of peace and tranquility, nor that the commission of such offence could not be prevented, except the arrest of the petitioners, have been described therein in the impugned Calendar(Annexure P-4). It is not well-settled principle of law that the security proceedings can only be initiated against a person, if all the indicated essential ingredients are complete and not otherwise. Therefore, the impugned Calendar (Annexure P-4) is as vague as anything in this relevant connection. Not only that, all the essential ingredients are totally lacking, as contemplated under Sections 107 and 151 Cr.P.C., but the impugned Calendar is speculative as well.
13. As described here-in-above, in the instant case, what cannot possibly be disputed here is that the civil court has already decided the CRM No.M-22585 of 2012 6 prima facie question of possession of the land in dispute in favour of the petitioners vide order dated 28.06.2012(Annexure P-2)(Colly.) and is finally seized of the matter. Therefore, to me, the concerned police officer slipped into a deep legal error in this regard.
14. On the contrary, it was the mandatory duty of the concerned police officer, to respect the order of the civil court, instead of initiating the parallel security proceedings against the petitioners, without any reason, much less cogent. If the parallel security proceedings with respect to the possession of the same very land in question, which is subject matter in the civil suit, are permitted to continue, then it would amount to frustrate the sanctity, weight, operation and effect of the decision of the civil court. Such impugned Calendar would tend to paralyse the administration of justice, which is not legally permissible. Once a dispute as to possession has been prima facie resolved and is subject matter of civil court of competent jurisdiction, then the question of initiating security proceedings under Sections 107 and 151 Cr.P.C. did not arise at all. If the petitioners would commit some illegal acts, constituting substantive offences, even in that eventuality, the security proceedings as envisaged under Sections 107 and 151 Cr.P.C., cannot legally be initiated against them and they can only be charged for the substantive offences committed by them.
15. Therefore, the argument of the learned counsel for the petitioners that the impugned Calendar(Annexure P-4) is arbitrary and motivated, has considerable force and the contrary contentions of the learned counsel for the respondents "stricto sensu" deserve to be and are CRM No.M-22585 of 2012 7 hereby repelled under these circumstances. As, there was absolutely no occasion, therefore, subsequently the initiation of parallel security proceedings by means of impugned Calendar(Annexure P-4) by the police officer against the petitioners, is not only illegal, but without jurisdiction as well and deserves to be set aside in this relevant context.
16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
17. In the light of aforesaid reasons, taking into consideration the totality of other facts and circumstances, emanating from the record, as discussed here-in-above and without commenting further anything on merits, lest it may prejudice the case of either side during the course of civil suit pending between the parties, the instant petition is accepted. The impugned Calendar(Annexure P-4) and all other subsequent security proceedings are hereby quashed in the obtaining circumstances of the case.
Needless to mention that, nothing observed here-in-above, would reflect, in any manner, on merits of the civil suit pending between the parties, as the same has been so recorded for a limited purpose of deciding the present petition only.
December 12, 2012 (MEHINDER SINGH SULLAR)
seema JUDGE
Whether to be referred to reporter? Yes/No