Madhya Pradesh High Court
Rajabeti Sakhwar vs Darshanlal Sakhwar on 7 July, 2021
Equivalent citations: AIRONLINE 2021 MP 1203
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
M.Cr.C. No.18242 of 2021
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SB : Justice G.S. Ahluwalia
M.Cr.C. No. 18242 of 2021
Rajabeti Sakhwar and others
Vs.
Darshanlal Sakhwar and others
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Shri J.P. Mishra, Counsel for the applicants.
Shri Anand V. Bhardwaj, Counsel for the respondent No.1.
Shri C.P. Singh, Panel Lawyer for the respondents No.6 and 7/State.
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Date of hearing : 29.06.2021
Date of judgment : 07.07.2021
Whether approved for reporting : Yes
ORDER
(Passed on 07/07/2021) This application under Section 482 of CrPC has been filed for quashment of proceedings initiated under Section 145 of CrPC registered as Case No. 121/145x21 pending in the Court of Sub- Divisional Magistrate, Mehgaon, District Bhind.
2. It is the case of the applicants that police Gormi District Bhind has presented Istgasa No.01/21 under Section 145 before the Court of SDM, Mehgaon, District Bhind on the allegation that the applicants are owner and in possession of land bearing Survey No. 305/09, 306/04 and 306/1 situated in village Gormi District Bhind and the respondent No. 2 are claiming ownership pleading that they 2 M.Cr.C. No.18242 of 2021 are Maurushi Krishak and in possession of the said land. Since both the parties are claiming their possession over the said land, therefore, there is possibility of breach. Accordingly, 26 bags of mustard were also seized.
3. It is the case of the applicants that the applicants had harvested the mustard crops standing over the land in question and the same was kept in the field. However, the respondent No. 8 in connivance of the authorities and the private respondents unauthorizedly took away the said mustard crop and kept in the Police Station without obtaining the order of the SDO. It is also contended that the applicants have submitted an application before the Superintendent of Police, Bhind for return of the said mustard crops. However, no heed has been paid.
4. Earlier the respondents No. 1 to 5 had filed a civil suit for declaration of title, permanent injunction and for declaring the sale deed dated 16.12.1992 as nullity and void, which was registered as Civil Suit No.259-A/1998 (Ram Lal and others Vs. Laxmi Datt and others). The said civil suit was dismissed by the Trial Court by judgment and decree dated 22.12.2006 and it was found that the applicants are in possession of the said land. Thereafter, the respondents No. 1 to 5 filed Civil Appeal No. 15/2009, which was also dismissed by the Appellate Court by judgment and decree dated 06.12.2010 and it was also held that the applicants are in possession of the land. Thereafter, the respondents No. 1 to 5 filed second appeal, which has been registered as Second Appeal No.158/2011 3 M.Cr.C. No.18242 of 2021 and by order dated 16.01.2013, this Court has directed the parties to maintain status quo. It is contended that on earlier occasion also, respondents No. 1 to 5 had filed a complaint No.8/2014x145CrPC under Section 145 of CrPC, however, the said complaint was dismissed by SDM, Mehgaon by order dated 23.05.2014 in the light of the pendency of the civil suit. Thereafter, the respondent No. 4 lodged a FIR in Crime No.37/2013 against the applicants for offence under Sections 379, 294, 447, 188, 506 of IPC. The said proceedings were challenged by the applicants by filing an application under Section 482 of CrPC, which was registered as M.Cr.C. No.2519/2013 and Crime No.37/2013 was quashed by this Court by order dated 27.04.2017. In the Istgasa also, the applicants have filed all the documents before the SDM and prayed for dropping the proceedings. However, neither the proceedings were dropped nor any order to handover the crops of mustard has been passed. It is further alleged that SDM, by order dated 22.03.2021 has directed the Revenue Inspector and Patwari to file Panch Prativedan to the effect that as to who is in possession of the land in dispute for the last two months.
5. Respondents No. 1 to 5 have filed I.A. No.18406/2021 for dismissal of petition. It is admitted that the civil dispute is pending between the parties and S.A. No.158/2011 is pending before this Court, which was admitted by order dated 16.01.2013 and the effect and operation of the impugned judgment and decree has been stayed and the parties have been directed to maintain status quo. Thereafter, 4 M.Cr.C. No.18242 of 2021 the applicant No. 3 filed an application for modification of the stay order in the second appeal, however, the said application was rejected by order dated 15.03.2013 with an observation that no modification is required. It is further claimed that the respondents No. 1, 2 and 4 are not party in S.A. No.158/2011 and only the applicant No. 3 is a party. It is further alleged that on 12.05.2011 sale deed was executed in favour of the applicant No. 3 in respect of Survey No.306/01, 308/26/2 and 307/2 situated at village Kasaba, Gormi District Bhind. However, the sale deed was not registered by Sub-Registrar, Mehgaon District Bhind by order dated 26.05.2011. The applicant No. 3 had challenged the said order, however, the appeal has also been dismissed by order dated 29.11.2012. Accordingly, it is prayed that the application filed by the applicant is not maintainable and the claim of the applicant No. 3 cannot be entertained as she is not the title holder because the sale deed is yet to be registered. It is further submitted that the report has also been submitted by Patwari to Naib Tahsildar thereby specifically mentioning that respondents No. 1 to 5 are recorded as Maurushi Krishak in the revenue record. It is further submitted that the applicants No. 1 and 3 had filed civil suit against the respondents No. 1 to 5 in respect of Survey No. 305/9, 306/04, 307/01 and 307/min/2 for declaration of title and permanent injunction. An application under Order 39 Rule 1 and 2 of CPC was also filed which was dismissed by order dated 16.09.2015. Against the said dismissal, Miscellaneous Appeal was filed by the applicants 5 M.Cr.C. No.18242 of 2021 No. 1 and 3 which was dismissed as not pressed on 08.08.2018. It is further submitted that even in the Khasra Panchshala of the year 2020-21, names of the respondents No. 1 to 5 have been recorded as occupancy tenant in respect of land bearing Survey No.306/1, 306/4 and 305/9. It is further claimed that the applicants had filed an application for release of mustard crops seized by the police Gormi. However, as a matter of fact, the crop of land bearing Survey No.306/1 has been taken away by the applicant No. 4 and in this regard, a letter has also been issued by SDO on 24.03.2021 to the Police Station Gormi. It is further claimed that the FIR was also registered against the applicant No. 1 Rajabeti, Patwari Virendra Kushwah, Computer Operator Mukesh Tiwari and witnesses of the said sale deed for offence under Sections 420, 467, 468, 471 and 120- B of IPC for illegally striking of the names of the respondents No. 1 to 5. M.Cr.C. No.8730/2014 was filed challenging the FIR in Crime No.254/13 which was dismissed by order dated 16.09.2019. A copy of the statement of Dhaniram Sakhwar has also been annexed. Accordingly, it is prayed that the present petition be dismissed.
6. Heard the learned counsel for the parties.
7. The record of the Court of SDM, Mehgaon District Bhind was made available in PDF format by the State counsel after the conclusion of the arguments.
8. It appears that on 18.03.2021 Police Station Gormi District Bhind filed an Istgasa before the SDM, Mehgaon District Bhind on 6 M.Cr.C. No.18242 of 2021 the allegation that in respect of Survey No.305/09, 306/4 and 306/1, a dispute is going on between the parties for the last several years and both the parties are claiming that they are in possession of the land in dispute. Since both the parties were claiming their ownership over the harvested crop, therefore, 26 bags of mustard crop and a green color trolley has been seized and is kept in the premises of Police Station Gormi. Along with an Istgasa, seizure memo was also filed.
9. From the order-sheets of the Court of SDM, Mehgaon it is clear that on 18.03.2021 notices were issued to the applicants and the respondents No. 1 to 5. On 18.03.2021 itself the respondent No. 5 appeared before the SDM and the case was directed to be taken up on 22.3.2021. On 22.3.2021 the applicants filed their reply as well as objection. Direction was given to the Revenue Inspector / Patwari to submit a report with regard to the possession for the last two months and the case was fixed for 06.04.2021. On 06.04.2021 Presiding Officer was busy in other works and the documents were filed by the parties and the case was directed to be listed on 12.04.2021. On 12.04.2021 Presiding Officer was again busy in other works, therefore, the case was adjourned to 15.04.2020 and on 15.04.2021, the further proceedings were kept in abeyance in the light of the order passed by this Court in the present case. From these orders, it is clear that the SDM, Mehgaon District Bhind did not pass any interim order with regard to the receiver, or disposal of the harvested crop. However, the record which has been sent in PDF format contains a 7 M.Cr.C. No.18242 of 2021 letter dated 23.02.2021 written by SDM, Mehgaon, Bhind to the Police Station Gormi thereby directing that the mustard crop which is standing in the disputed filed should be handed over to the custody of Gram Kotwar / Patel. On 24.03.2021 another letter was written by SDM, Mehgaon District Bhind alleging that by letter dated 22.03.2021, which was dispatched on 23.03.2021, the Police was directed to hand over the custody of the mustard crop standing on Survey No.305/9, 306/4 and 306/1, but it appears that Ramdas and Kuldeep have illegally cut the crop and have stored the same unauthorizedly either in their house or at any other place and is being used for personal purposes and, therefore, the Police was directed to enter upon the said building and in case if it is required then the Police force may also be used and the harvested crop should be seized and the police must immediately take the possession of the same and the same may be produced before the Court. The record also contains an application made by the respondent No. 1 to 5 on 20.03.2021 alleging that Ramdas and Kuldeep have illegally harvested the crop and has taken the same to their house and it appears that on 20.03.2021, the SDM, Mehgaon District Bhind made an endorsement on the application thereby directing the SHO, Police Station Gormi to seize the said crop. However, it is not out of place to mention here that the notices were issued by the SDM, Mehgaon on 18.03.2021 and the case was fixed for 22.03.2021 and on 20.03.2021 no judicial order in respect of seizure of the crop was made. Thus, it 8 M.Cr.C. No.18242 of 2021 appears that although the proceedings under Section 145 of CrPC are pending but still without any authority or law, SDM in a most clandestine manner and behind the back of the applicants made an endorsement on the application dated 20.03.2021 made by the respondents No. 1 to 5 on administrative side.
10. The counsel for the State was unable to justify this act of the SDM, Mehgaon, District Bhind. Once, the proceedings under Section 145 of CrPC were already registered and notices were issued to the applicants, then no order on administrative side regarding appointment of receiver or seizure of the crop could have been made by the SDM, Mehgaon, District Bhind. The only option available with the SDM was that in case, if any application is made by any of the parties along with an application for urgent hearing, then the SDM should have taken the same on the order-sheets and should have passed an order. However, in the present case, there is nothing in the order-sheets to indicate that any order of appointment of receiver or seizure of harvested crop was ever made. Further, whenever an order under Section 146 of CrPC is passed then an opportunity is also to be given to the opposite party to put forward its case but unfortunately in the present case, the SDM, Mehgaon District Bhind by misusing and travelling beyond his jurisdiction has dealt with the case on administrative side rather on judicial side. Thus, the letters dated 22.03.2021 and 24.03.2021 cannot be given a stamp of approval. Therefore, the administrative direction given by 9 M.Cr.C. No.18242 of 2021 the SDM, Mehgaon District Bhind for seizure of the mustard crop from the possession of Ramdas and Kuldeep are hereby quashed.
11. So far as the merits of the case are concerned, undisputedly the civil dispute is pending between the parties. Earlier also proceedings under Section 145 of CrPC were initiated which was registered as Case No.8/14x145 CrPC and the said proceedings were dropped by order dated 23.05.2014 on the ground that the civil suit filed by the respondents No. 1 to 5 has been dismissed by judgment and decree dated 22.12.2006 and civil appeal filed against the said judgment and decree has also been dismissed by judgment and decree dated 06.12.2010 and thus, it would not be appropriate to proceed further with the proceedings under Section 145 of CrPC.
12. It is submitted by the counsel for the respondents No. 1 to 5 that it is incorrect to say that where a civil suit is pending between the parties then proceeding under Section 145 of CrPC are to be dropped and in support of his contention, counsel for the respondents No. 1 to 5 have relied upon the judgments passed by this Court in the case of Raghunath Singh Vs. Pragobai and another reported in ILR (2012) MP 2285, Mahant Ramratandas Vs. Mahant Narayandas reported in 1988 (II) MPWN 45 SN and Rameshchandra Vs. Jankilal reported in 1987 (II) MPWN 183 SN.
13. Considered the submissions made by the counsel for the parties.
14. The moot question for consideration is that when a civil 10 M.Cr.C. No.18242 of 2021 litigation is pending between the parties, then whether it is conducive to multiply the litigation by initiating a separate proceedings under Section 145 of CrPC or not ? The question is no more res integra.
15. The Supreme Court in the case of Ram Sumer Puri Mahant v. State of U.P. and others, reported in (1985) 1 SCC 427 has held as under:-
"2. Challenge in this application is to the order of the Allahabad High Court refusing to interfere in its revisional jurisdiction against an order directing initiation of proceedings under Section 145, Code of Criminal Procedure ('Code' for short), and attachment of the property at the instance of Respondents 2-5. Indisputably, in respect of the very property there was a suit for possession and injunction being Title Suit No. 87 of 1975 filed in the Court of Civil Judge at Ballia wherein the question of title was gone into and by judgment dated February 28, 1981, the said suit was dismissed. The appellant was the. defendant in that suit. According to the appellant close relations of Respondents 2-5 were the plaintiffs and we gather from the counter-affidavit filed in this Court that an appeal has been carried from the decree of the Civil Judge and the same is still pending disposal before the appellate court. The assertion made in the petition for special leave to the effect that Respondents 2 to 5 are close relations has not been seriously challenged in the counter-affidavit. 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 SSction 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 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 a position to approach the civil court for interim orders 11 M.Cr.C. No.18242 of 2021 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. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. We accordingly allow the appeal and quash the order of the learned Magistrate by which the proceeding under Section 145 of the Code has been initiated and the property in dispute has been attached. We leave it open to either party to move the appellate Judge in the civil litigation for appropriate interim orders, if so advised, in the event of dispute relating to possession."
16. The Supreme Court in the case of Mahar Jahan and others v. State of Delhi and others reported in (2004) 13 SCC 421 has held as under:-
"4. It is not disputed by the learned counsel for the parties that this very property which is the subject-matter of these criminal proceedings is also the subject-matter of the civil suit pending in the civil court. The question as to possession over the property or entitlement to possession would be determined by the civil court. The criminal proceedings have remained pending for about a decade. We do not find any propriety behind allowing these proceedings to continue in view of the parties having already approached the civil court. Whichever way proceedings under Section145 CrPC may terminate, the order of the criminal court would always be subject to decision by the civil court. Inasmuch as the parties are already before the civil court, we deem it proper to let the civil suit be decided and therein appropriate interim order be passed taking care of the grievances of the parties by making such arrangement as may remain in operation during the hearing of the civil suit."
17. The Supreme Court in the case of Mahant Ram Saran Dass v. Harish Mohan and another reported in (2001) 10 SCC 758 has 12 M.Cr.C. No.18242 of 2021 held as under:-
"2. The short question that arises for consideration is whether in the facts and circumstances of the present case, a civil suit for declaration under Section 92 of the Code of Civil Procedure being pending before the competent forum, the civil court, the respondent was entitled to invoke the jurisdiction of the Magistrate under Section 145 CrPC, and the Magistrate was entitled to initiate the proceedings and pass any interim order of appointment of receiver therein. It is not disputed that in the civil suit itself the court has passed interim order of injunction, and put certain restrictions on the parties with regard to alienation of the property in question. It is true that the applicant before the Magistrate, has not been arrayed as party-defendant in the civil suit, but that will not alter the position in any manner since in our view the civil court being in seisin of the matter, any appropriate relief could be obtained from the civil court itself and the Magistrate had no jurisdiction in the case in hand to entertain the application under Section 145, and to pass any orders thereon. In the circumstances, the impugned order of the High Court as well as the proceedings initiated before the Magistrate under Section 145 CrPC stand set aside. The appeal is disposed of accordingly. Needless to mention the status quo as of today to be maintained to enable the parties to move the civil court for appropriate orders."
18. The Supreme Court in the case of Amresh Tiwari v. Lalta Prasad Dubey and another reported in (2000) 4 SCC 440 has held as under:-
"13. We are unable to accept the submission that the principles laid down in Ram Sumer case would only apply if the civil court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumer case is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil court and parties are in a 13 M.Cr.C. No.18242 of 2021 position to approach the civil court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue.
14. Reliance has been placed on the case of Jhummamal v. State of M.P. It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145 of the Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145 of the Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded order under Section 145 of the Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumer case fully applies. We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie. 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 that 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."
19. Undisputedly, in the present case, second appeal filed by the respondents No. 1 to 5 is still pending. They have every opportunity to move an application for obtaining the interim orders or to move an application under Order 39 Rule 2-A of CPC.
14M.Cr.C. No.18242 of 2021
20. In the present case, the manner in which the police as well as the SDM, Mehgaon District Bhind have acted cannot be appreciated. It is really surprising that the SDM, Mehgaon District Bhind, even during the pendency of 145 CrPC proceedings opted to issue letter on administrative ground without there being any order on judicial side. Whether the Police or the SDM, Mehgaon District Bhind had joined hands with the respondents No. 1 to 5 or not, is not the matter of concern, but one thing is clear that the respondents No. 1 to 5 have succeeded in obtaining certain orders and seizure of mustard crop in an illegal manner.
21. Be that whatever it may.
22. Once second appeal filed by the respondents No. 1 to 5 is pending before this Court and the proceeding initiated on the earlier occasion was dropped only on the ground that the civil appeal filed by the respondents No. 1 to 5 has already been dismissed and in the light of the judgments passed by the Supreme Court in the case of Ram Sumer Puri Mahant (supra), Mahar Jahan (supra), Mahant Ram Saran Dass (supra) and Amresh Tiwari (supra), this Court is of the considered opinion that the seizure of 26 bags of mustard crop by the police and the letter written by the SDM, Mehgaon District Bhind on 23.03.2021 and 24.03.2021 is sheer misuse of power. Accordingly, the seizure memo prepared by the police on 18.03.2021 and the proceedings either taken under Section 145 of CrPC in Case No.121/145x21 or on the administrative side by the SDM, Mehgaon 15 M.Cr.C. No.18242 of 2021 District Bhind are hereby quashed. The Police Gormi District Bhind as well as SDM, Mehgaon District Bhind are directed to ensure that all the seized mustard crop or the crop which was given to the receiver is hereby returned back to the applicants. It shall be the duty of SDM, Mehgaon District Bhind to personally ensure that the entire mustard crop seized either by the police or handed over to the receiver is returned back in a proper condition within a period of five days from today. If it is found that the crop has suffered any loss in quality or if it is found that the total quantity of crop seized from the possession of the applicants or handed over to the receiver is not available, then the SDM, Mehgaon District Bhind shall be personally liable to pay the cost of the said missing mustard crop to the applicants.
23. The entire exercise be completed within a period of five days from today and the SDM, Mehgaon, District Bhind is directed to submit his report before the Principal Registrar of this Court latest by 14.07.2021.
24. Since this Court has already come to a conclusion that the proceedings under Section 145 of CrPC were initiated with malafide intention and in a most arbitrary manner, therefore, this application is allowed with cost of Rs.20,000/- to be deposited by the respondents No. 1 to 5 within a week in the Registry of this Court.
25. The Principal Registrar of this Court is directed to initiate the proceedings for recovery of cost in accordance with law in case, if 16 M.Cr.C. No.18242 of 2021 the same is not deposited within a period of seven days from today in the Registry of this Court. Apart from initiating the recovery proceedings, Principal Registrar of this Court is also directed to register the proceedings for contempt of Court in case the cost is not deposited.
26. With aforesaid observations, this application is finally disposed of.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.07.07 10:59:03 +05'30'