Punjab-Haryana High Court
Ishwar vs State Of Haryana And Others on 26 July, 2013
Author: Daya Chaudhary
Bench: Daya Chaudhary
Criminal Misc. No. M-28772 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. M-28772 of 2012
Date of decision: 26.07.2013
Ishwar ...Petitioner
Versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr. Kulbhushan Raheja, Advocate
for the petitioner.
Mr. Rajat Mor, AAG, Haryana
for respondents No.1 to 3-State.
Mr. J.P. Dhull, Advocate
for respondents No.4 to 7.
Mr. Sandeep Gahlawat, Advocate
for respondents No.8 to 11.
Daya Chaudhary, J.
The present revision petition has been filed under Section 482 Cr.P.C. for quashing of proceedings initiated under Section 145 Cr.P.C. by Sub Divisional Magistrate, Kaithal on the recommendation of Station House Officer, Police Station Titram, District Kaithal and also for quashing of order dated 27.08.2012 passed by respondent No.2 under Section 146 Cr.P.C.
Briefly, the facts of the case as mentioned by the petitioner are that the land measuring 140 kanals 1 marla is coparcenary ancestral property of petitioner and private respondents. Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-28772 of 2012 2 The father of petitioner being karta had been managing the property as he had inherited the same from his forefather. Respondents-Dalel Singh and Jarnail Singh got sale deed executed in their favour which, was challenged by the petitioner and his sister by way of filing three different civil suits. It is the case of the petitioner that he has been in possession of the suit land in dispute whereas the contesting respondents never remained in possession. A suit was filed by the petitioner for restraining respondents from alienating and interfering in their possession wherein order of status quo regarding possession and alienation was also passed on 12.06.2012 in all three suits, which are still pending.
Learned counsel for the petitioner submits that despite pendency of civil suits, proceedings under Section 145 Cr.P.C. were initiated and thereafter, a Kalandra was prepared by the Police under Section 146 Cr.P.C. Proceedings under Section 145 and 146 Cr.P.C. have been challenged by the petitioner before this Court. Learned counsel for the petitioner further submits that the dispute is of the possession and three civil suits in this regard are still pending wherein status quo has been ordered by the trial Court. During the pendency of the civil suits, no proceedings under Section 145 Cr.P.C. can be initiated. Learned counsel also submits that the proceedings under Section 145 Cr.P.C. are only regarding determining the possession of the land and in case, there is any apprehension of breach of peace regarding the land, then Police can proceed under Section 107/151 Cr.P.C. and the same has already Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-28772 of 2012 3 been initiated by respondent No.3. Learned counsel for the petitioner also relies upon the judgments of this Court in Zoravar Singh vs. State of Punjab and others, 2008(1) RCR (Criminal) 1029, Des Raj and others vs. State of Punjab and others, 2010(4) RCR (Criminal) 577, Lakhwinder Kaur vs. Sarwan Singh and others, 2009(4) RCR (Criminal) 509, Ashok Kumar vs. State of Punjab and others, Criminal Misc. No. M-23313 of 2012 decided on 19.02.2013 as well as Judgments of Hon'ble the Supreme Court in Mahar Jahan and others vs. State of Delhi and others, 2006(2) RCR (Criminal) 80, Ashok Kumar vs. State of Uttrakhand and others, 2013(1) RCR (Criminal) 961 and Judgment of Allahabad High Court in Kailash Nath vs. State of U.P. and others, 2004(3) RCR (Criminal) 175.
Learned counsel for the private respondents opposes submissions made by learned counsel for the petitioner and submits that the proceedings under section 145 Cr.P.C. have rightly been initiated and adjudicated upon as there was not only apprehension of breach of peace but dispute of possession was also there. Learned counsel for the private respondents also submits that no revision is maintainable. Learned counsel for the private respondents also relies upon the judgments of this Court in Sntokh Singh vs. State of Punjab & Anr., 2010(2) RCR (Criminal) 257, Kartar Singh vs. Smt. Pritam Kaur, 1984(1) RCR (Criminal) 617, Mohinder Singh vs. Shri Dilbagh Rai, VOL.LXXVIII-1976 The Punjab Law Reporter
803. Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-28772 of 2012 4 Heard arguments of learned counsel for the parties and have also perused the impugned orders as well as other documents available on the file.
Admittedly, three civil suits are pending before the civil Court wherein status quo orders have been passed. It is also an admitted fact that the dispute is regarding possession as both the parties are claiming their respective possession over the land in dispute. Proceedings under section 145 Cr.P.C. have been initiated by Sub-Divisional Magistrate, Kaithal and property in dispute has been attached. Tehsildar, Kaithal has been appointed as receiver of the suit land. Proceedings under section 145 Cr.P.C. as well as appointment of receiver have been challenged before this Court.
This Court as well as Hon'ble the Supreme Court have laid down scope and ambit of Courts powers under section 482 Cr.P.C. Powers under section 482 Cr.P.C. are to do real and substantial justice or to prevent abuse of process of law. Inherent powers under section 482 Cr. P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of Court; or (iii) to secure the ends of justice. Admittedly, powers under section 482 Cr.P.C. have to be exercised sparingly, carefully and with great caution and care, for advancement of justice or to prevent any abuse of process of law leading to injustice. It has been held in various judgments that when a civil litigation is pending regarding some property wherein question of possession is involved, there is hardly any justification for initiating a parallel criminal proceeding Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-28772 of 2012 5 under section 145 of the Code.
In the case of Amresh Tiwari vs. Lalta Prasad Dubey & others, 2000(2) RCR (Criminal) 614, the Apex Court has held as below:
"It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the Civil Court the proceedings under Section 145 should not be allowed to continue. This is because the Civil Court is competent to decide the question of title as well as possession between the parties and the orders of the Civil Court would be binding on the Magistrate."
In the Case of Madan Pal Singh vs. State of U.P. and others, 1995 JIC 577, learned Single Judge in paragraph-5 of the judgment has held as following:
"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal Court in a matter like the one before us. Counsel for respondents No.2-5 was not in a position to challenge Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-28772 of 2012 6 the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil Court and parties are in position to approach the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation."
In another case decided by learned Single Judge of this Court in Gaya Prasad and another vs. Additional Sessions Judge, Basti, 1996 RD 430, the same view has been taken and it is laid down that there is no justification for initiating a parallel criminal proceeding under Section 145 of the Code when a civil litigation is pending for appropriate right which also involves the question of possession and the same has been adjudicated upon.
In all the aforesaid cases, the Courts have relied upon the leading case of Ram Sumer Puri Mahant vs. State of U.P. and others, 1985(2) RCR (Criminal) 43 (SC) : 1985 (2) ACC 45 in which the Apex Court has laid down the following principles:
"Once the Civil Court has passed an order adjudicating the question of possession, even at an interlocutory Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-28772 of 2012 7 stage, the Magistrate has no option but to drop the proceeding. The necessary corollary of this legal position, quite obviously, would be that the parties will be governed by the orders passed by the Civil Court."
This Court in the case of Karam Singh vs. Sub Divisional Magistrate, Zira reported as 2001(2) RCR (Criminal) 617, quashed the proceedings under Section 145 and 146 Cr.P.C. where the civil Court was already seized of the dispute between the parties qua the possession etc. and the order of status quo had been passed and while relying on other similar judgments held, as under:-
"8. In Labh Singh and another vs. Jaswinder Kaur and others, 1992(1) CLR 24, it has been held by this Court that where the land in dispute was jointly owned by the parties, the initiation of proceedings under Section 145 Cr.P.C., the order of attachment of the land under Section 146 Cr.P.C. was liable to be quashed. In the reported case, the order of status quo was also vacated by the civil Court on the ground that the parties being joint co- sharers in the land in dispute, the possession of one co- sharer shall be deemed to be that of all the co-sharers. In Babu Singh vs. Moti Ram and others, 1991(1) RCR (Criminal) 144: 1992(1) CLR 48, the civil Court was already seized of the matter and had granted interim stay in favour of Babu Ram, plaintiff, restraining the other wise Rani Neetu from interfering in the possession of the disputed land. 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-28772 of 2012 8
Under those circumstances, it was held by this Court that proceedings under Section 145 Cr.P.C. were not maintainable. Accordingly, proceedings under Section 145 Cr.P.C. were quashed by this Court. In Balbir Singh and others vs. State of Punjab and others, 1999(4) RCR (Criminal) 51: 1999(1) CLR 224, the dispute was between the partners of a partnership firm. It was under
those circumstances that it was held by this Court that since all the partners were said to be in possession of the partnership property, it could not be possible be proceed under Section 145 Cr.P.C.. Resultantly, the proceedings under Section 145 Cr.P.C. and the order of attachment under Section 146 Cr.P.C. were quashed by this Court. No doubt, learned counsel for the respondents has also relied upon a judgement rendered by our High Court in the case of Santokh (supra) holding a different view. However, the judgement rendered by Hon'ble the Supreme Court in the case of Ranbir Singh vs. Dalbir Singh reported as 2002(2) RCR (Criminal) 275: 2002 (2) Criminal Court Cases 187 was not brought to the notice of the learned single Bench of the High Court, wherein, it was held as under:-
"9. The civil Court is already seized of the dispute between the parties, regarding the possession etc. The order of the status quo has already been passed. Taking Rani Neetu 2013.07.30 13:03 all these facts into consideration, in my opinion, the I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-28772 of 2012 9 initiation of proceedings under Section 145 Cr.P.C. or the order of appointment of Receiver, under Section 146 Cr.P.C. would amount to abuse of the process of Court. Resultantly, the present petition is allowed. The proceedings under Section 145 Cr.P.C. and the order of appointing Receiver under Section 146 Cr.P.C. are hereby quashed."
Thus, it is not disputed that the civil Court is already seized of the matter. It is also not disputed that the status quo has been passed.
In the present case, as referred to above, the parties are co-sharers. The civil Court is already seized of the dispute between the parties, regarding the possession etc. the order of the status quo has already been passed. Taking all these facts into consideration, in my opinion, the initiation of proceedings under Section 145 Cr.P.C. or the order of appointment of Receiver, under Section 146 Cr.P.C. would amount to abuse of the process of Court. Resultantly, the present petition is allowed. The proceedings under Section 145 Cr.P.C. and the order of appointing Receiver under Section 146 Cr.P.C. are hereby quashed.
26.07.2013 (DAYA CHAUDHARY)
neetu JUDGE
Rani Neetu
2013.07.30 13:03
I attest to the accuracy and
integrity of this document
Chandigarh