Punjab-Haryana High Court
Karnail Singh vs State Of Punjab And Another on 26 July, 2013
Author: Daya Chaudhary
Bench: Daya Chaudhary
Criminal Misc. No. M-32388 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. M-32388 of 2011 (O&M)
Date of decision: 26.07.2013
Karnail Singh ..Petitioner
Versus
State of Punjab and another ..Respondents
CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr. R.S. Bains, Advocate,
for the petitioner.
Mr. K.S. Pannu, DAG, Punjab
for respondent No.1 - State.
Mr. Kanwaljeet Singh, Sr. Advocate with
Mr. Suraj Preet Singh, Advocate
for respondent No.2.
Daya Chaudhary, J.
The present petition has been filed under Section 482 Cr.P.C. for quashing of Calandara under Section 145 Cr.P.C. as well as order dated 12.10.2011, vide which, a receiver has been appointed.
Learned counsel for the petitioner submits that the petitioner is in exclusive possession of Khasra No.17/14 (8-0) and has also installed one tubewell on the said land. An application was moved by Gurjant Kaur before Assistant Collector First Grade and order of mode of partition was passed on 27.05.2010. Petitioner filed an appeal against order of mode of partition, which was dismissed. Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-32388 of 2011 (O&M) 2 Thereafter the petitioner filed a revision petition before Commissioner. Learned counsel for the petitioner also submits that FIR No.174 dated 11.05.2011 was registered against one Kuldeep Singh and petitioner's family was threatened due to which many representations were given to the Police Authorities. A civil suit was also filed against Gurjant Singh and his wife Gurjant Kaur by one Satnam Singh with whom they entered into an agreement to sell and took earnest money by using power of attorney of Kuldip Singh and Prem Singh. The civil suit between the parties is still pending.
During the pendency of the litigation between the parties, the Calandara under Section 145 Cr.P.C. was filed on 28.06.2011 on the ground that there is apprehension of breach of peace. Learned counsel for the petitioner also submits that the present petition has been filed on the ground that the civil litigation is pending between the parties and dispute is of possession and also of partition. No proceedings can be initiated in case, the civil litigation is pending between the parties. As per revenue record, respondent No.2 is not in possession of the land in dispute. The proceedings under Section 145 Cr.P.C. are malafide and is outcome of civil litigation and same has been initiated in collusion of Police. Learned counsel for the petitioner has also relied upon the judgment of Hon'ble the Supreme Court in Amresh Tiwari vs. Lalta Prasad Dubey and another, AIR 2000 Supreme Court 1504 as well as judgments of Allahabad High Court in Ram Subhag Pandey vs. State of U.P. and others, 2001 Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-32388 of 2011 (O&M) 3 Crl.L.J. 2891 and Jayanti Prasad and others vs. Kamal Narain and others, 1998 Crl.L.J. 4689.
Learned counsel for respondent No.2 opposes the submissions made by learned counsel for the petitioner and submits that the proceedings under section 145 Cr.P.C. have rightly been entertained and adjudicated upon as there was not only apprehension of breach of peace but dispute of possession was also there. Learned counsel for respondent No.2 also submits that no revision is maintainable. Learned counsel for respondent No.2 also relies upon the judgments of this Court in Sntokh Singh vs. State of Punjab & Anr., 2010(2) RCR (Criminal) 257 as well as judgment of Hon'ble the Supreme Court in Parkash Chand Sachdeva vs. State and another, 1994(3) RCR (Criminal) 217.
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, civil suit is pending before the civil Court wherein order for maintaining status quo has been passed. It is also an admitted fact that the dispute is regarding possession and partition 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, Patiala and property in dispute has been attached. Proceedings under section 145 Cr.P.C. as well as appointment of receiver have been challenged Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-32388 of 2011 (O&M) 4 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 as it is used for advancement of justice or to prevent any abuse of process leading to injustice. It has been held in various judgments that when a civil litigation is pending of the property wherein question of possession is involved, there is hardly any justification for initiating a parallel criminal proceeding under section 145 of the Code.
In the case of Amresh Tiwari's case (supra), 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 Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-32388 of 2011 (O&M) 5 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 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."
Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-32388 of 2011 (O&M) 6
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 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 had already seized 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 Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-32388 of 2011 (O&M) 7 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 from interfering in the possession of the disputed land. 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 Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-32388 of 2011 (O&M) 8 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 respondent No.2 has also relied on a judgment rendered by our High Court in the case of Santokh (supra) holding a different view. However, the judgment 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 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."
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 Rani Neetu 2013.07.30 13:03 I attest to the accuracy and integrity of this document Chandigarh Criminal Misc. No. M-32388 of 2011 (O&M) 9 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