Delhi District Court
Bhagwan Saroop Sharma vs The State Govt. Of N.C.T. Of Delhi on 24 December, 2007
In the Court of Sh. A. K. Chawla : Additional Sessions Judge
Karkardooma Courts : Delhi.
Crl. Revision No. 10/07
1. Bhagwan Saroop Sharma
S/o Pandit Ram Chander
R/o Quarter No.8,
Shyam Lal College,
Shahdara, Delhi.
2. Ms. Amita Mittal
R/o 1/7358, Gali No.11,
East Gorakh Park,
Shahdara, Delhi -110 032. ..... Appellants/revisionists
Versus
1. The State Govt. of N.C.T. of Delhi.
2. Pramod Kumar Sharma
S/o Late Dr. Vidya Sagar Sharma
Flat No.87, Pocket-D, LIG Flats,
G.T.B. Enclave, Delhi -110 093.
3. Vipin Sharma
S/o Late Dr. Vidya Sagar Sharma
R/o H. No. 22, Water Works,
Chandrawel-1, Civil Lines,
Delhi.
4. Sh. Bhanu Prakash Sharma
S/o Sh. Ram Swarup Sharma
R/o 1/4984, Gali No.1, Balbir Nagar,
Shahdra, Delhi -110 032. .....Respondents
JUDGMENT
Vide this judgment, I proceed to dispose off the revision petition preferred against order dated 10.4.2007 passed by SDM, Shahdara U/s 146 Cr.P.C. hereinafter referred to as 'the Impugned Order' in relation to properties bearing Nos. 1/9172 and 1/9127, West :1: Rohtas Nagar, Shahdara, Delhi, hereinafter referred to as 'the Subject Properties'.
2. Precisely, facts relevant for the disposal of the revision in hand are that Dr. Vidya Sagar Sharma (since deceased), was the owner of 'the Subject Properties' besides certain other movable assets. As per the revisionists, he was running a homeopathic dispensary and 'Vardhasharam' in 'the Subject Properties'. Then, also according to the revisionists, he had six children namely Madhu Shrma (daughter), Manju Sharma (daughter), Prabha Shrma (daughter), Pramod Shrama (son), Vineet Sharma (son since deceased) and Vipin Sharma (son), from his marriage with Smt. Savita Sharma. Then, also as per the revisionists, due to certain differences, the deceased had obtained a decree of divorce dated 6.3.2000 by way of mutual consent from Smt. Savita Sharma. Also, according to the revisionists, the deceased had also disowned all his children and debarred them from all movable and immovable properties on 14.3.2000 by a public notice in Dainik Jagran. Then, also according to the revisionists, the deceased had registered a 'Parmarth Sansthan' in the year 2004-05 for running a dispensary as well as Vardhashram. Then, also according to the revisionists, the deceased fell ill and was hospitalised on 2.1.2007 in Hindu Rao Hospital and during the period of his hospitalisation, he is said to have executed a registered Will and a Trust Deed on 24.1.2007. On 12.2.2007, the deceased is said to have died. Then, according to the revisionists, the respondent nos. 2 and 3 and Manju Sharma (daughter of the deceased) and her son Danny, in connivance with the police visited 'the Subject Property' No. 9172, Gali No.4, West Rohtas Nagar, Delhi on 8.3.2007 and started quarrel with the officials of the Trust in order to grab the property of the deceased and forcibly dispossessed the Trustees. Later, Kalandra u/s 107/151 Cr.P.C. is said to have been filed by the police. Then, police is also said to have initiated the proceedings U/s 145 Cr.P.C. In the said proceedings, 'the :2: Impugned Order' has come to be passed. Respondent Nos.2 and 3 in the reply filed, while raising the plea that 'the Impugned Order' was an interlocutory order and thereby, the revision was not maintainable, have asserted that 'the Impugned Order' was justly passed. While admitting that the deceased was running a homeopathic dispensary and Vridhashram from 'the Subject Properties', they have averred that the children of the deceased have been regularly visiting the deceased but the revisionists have been creating bad blood between the deceased and his children and taking undue advantage of their proximity with the deceased. They have denied that the deceased had debarred all his children from his movable and immovable properties on 14.3.2000 or any other date and according to them, the public notice dated 16.3.2000 was a fine piece of forgery, fraud and conspiracy between the revisionists, to grab the valuable properties of the deceased. Also according to them, the revisionists had taken undue advantage of illness of the deceased and got certain proformas and documents signed from the deceased and got them registered, in conspiracy with the Sub-Registrar. Also according to them, the deceased had executed Will dated 11.2.2000 bequeathing all his movable and immovable properties in their favour, having come to know of the fraudulent acts of the revisionists. Also according to them, they had observed 13 days' mourrning on the death of the deceased and that ended on 23.2.2007 and during this period of mourning, it came to their knowledge that Ms. Amita Mittal, who was an employee of deceased, was trying to break open the locks of the premises and illegally trespass into the same and for that, they had lodged a complaint in writing to the PS Shahdara on 25.2.2007. Also according to them, their apprehension came true on 8.3.2007, when the revisionists and their associates tried to trespass into 'the Subject Properties' by breaking open the locks, but due to the timely intervention by the police, they were prevented. Also according to them, when the police found that there was every likelihood of breach of peace, the matter was referred u/s 145 Cr.P.C.
:3:to the SDM and proceedings U/s 107 and 150 Cr.P.C. were initiated. Thus, according to respondent nos. 2 and 3, 'the Impugned Order' was in confirmity with the provisions of section 145 and 146 Cr.P.C.
3. I have perused the written arguments filed on behalf of the parties, as also orally heard their Ld. Counsel, as prayed and also perused the record carefully.
4. Undisputedly, the deceased was running a homeopathic dispensary and a Vridhashram from 'the Subject Properties'. Undisputedly, the deceased had divorced his wife and his children have not been residing with him in any portion of 'the Subject Properties'. Undisputedly as well, the deceased fell sick and was admitted in Hindu Rao Hospital on 2.1.2007. Copies of the Trust Deed and the Will dated 24.1.2007, which are registered documents, prima facie, show their due execution, though, during the period of his hospitalisation. Copy of the Notarised Will dated 11.2.2007, while the deceased died on 12.2.2007, I observe, bears the thumb impression, purportedly of the deceased, only on its last page. Be that as it may, the undisputed fact remains that two proceedings came to be initiated for the apprehended breach of peace simultaneously, one u/s 107/150 Cr.P.C. and the other U/s 145 Cr.P.C. In relation to the subject matter in hand, Kalandara U/s 145 Cr.P.C. came to be received in the office of the SDM, Shahdara on 9.3.2007. On the Kalandara so received, the first proceeding recorded by the SDM on 19.3.2007, is as under :
"Present Sh. Devender Kumar Sharma counsel for the Ist party Bhanu Prakash also Present Sh. R.L. Sharma counsel for the IInd party-Sh. Pramod Sharma. Both the parties claim to be in possession of the property. Parties to give written statement alongwith documents. To come up on 10.4.2007.":4:
On the adjourned date i.e. 10.4.2007, the SDM passed 'the Impugned Order', which is as follows :
"Present Sh. R.L. Sharma Adv. On behalf of party No. 4 & 5 filed written statements. Sh.
Tarun Kumar counsel present on behalf of party No. 2 & 3. Counsel for party No. 1 not present. All the parties admit that the premises is not in use at present. There are Wills produced by both the parties. Since this is a property dispute which this court has no jurisdiction to go into. The report of the police already indicates that there is apprehension/breach/peace and at this stage I am not in a position to decide possession, accordingly the proceeding is allowed U/s 146 Cr.P.C. Orders to follow. SHO to comply with the directions. Fixed for 1.5.07."
A perusal of the proceedings dated 19.3.2007 and 10.4.2007, would as such, show that while the SDM started with the proceedings U/s 145 Cr.P.C. and none of the parties had yet even filed the written statement and the supported documents, in the same situation that prevailed on 19.3.2007, on the adjourned date, the SDM proceeded to pass attachment order u/s 146 Cr.P.C. merely observing that the parties admit that the premises was not in use at present and there were Wills produced by both the parties and since there is a property dispute, his court has no jurisdiction to go into and that the report of the police clearly indicated that there was apprehension/breach/peace and at this stage, he was not in a position to decide possession and therefore, the property was attached u/s 146 Cr.P.C. The whole manner, in which the SDM has proceeded and passed 'the Impugned Order', in my considered view is bad in law. At the time, 'the Impugned Order' came to be passed, while preliminary order under Sub-Sec.(1) of Sec. 145 had not yet passed, the only material available with the SDM and on which, he proceeded to pass :5: 'the Impugned Order', was the Kalandara. Perusal of the Kalandara by itself only mentions that both the parties were asserting their title to 'the Subject Properties' on the basis of the Wills purportedly executed in their respective favour by the deceased. In other words, both the parties were asserting their own title to 'the Subject Properties' and there was apprehension of breach of peace. While the 'title' to 'the Subject Properties', is not the subject to be gone into by the SDM but for only considering the aspect of actual possession of 'the Subject Properties' in the proceedings U/s 145 Cr.P.C., a mere averment in the Kalandara, that the proceedings U/s 145 Cr.P.C. were necessary to maintain peace, cannot be said to be sufficient for proceeding either U/Sec. 145 or Sub-Sec. (1) of Sec. 146 Cr.P.C., which are as under :
"Sec.145(1) - Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute."
"Sec. 146(1) - If the Magistrate at any time after making the order under Sub-Section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.":6:
In AIR 1980 SC 242 Mathuralal Vs. Bhanwarlal, relied upon by the respondent nos. 2 and 3 itself, it was observed by the Hon'ble Supreme Court as follows :
"4. Quite obviously, Sc 145 and 146 of the Crl. P.C. together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries. If S. 146 is torn out of its setting and read independently of S. 145, it is capable of being construed to mean that once an attachment is effected in any of the three situations mentioned therein, the dispute can only be resolved by a competent Court and not by the Magistrate effecting the attachment. But S. 146 can not be so separated from S.145. It can only be read in the context of S.145. Contextual construction must surely prevail over isolationist construction. Otherwise, it may mislead. That is one of the first principles of construction. Let us therefore look at S.145 and consider S.146 in that context. S.145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of an order, known to lawyers practising in the Criminal Courts as a Preliminary Order, stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. A preliminary order is considered so basic to a proceeding under S.145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Ss. 145 and 146. In fact, the first of the situations in which an attachment may be effected under S.146 of the 1973 Code has to be "at any time after making the order under sub-s.(1) of S.145" while the :7: other two situations have, necessarily, to be at the final stage of the proceeding initiated by the preliminary order. Now, the preliminary order is required to enjoin the parties not only to appear before the Magistrate on a specified date but also to put in their written statements. Sub-s.(3) of S.145 prescribes the mode of service of the preliminary order on the parties. Sub-sec.(4) casts a duty on the Magistrate to peruse the written statements of the parties, to receive the evidence adduced by them, to take further evidence if necessary and, if possible, to decide which of the parties was in possession on the date of the preliminary order. If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by sub- s.(6). Provision for the two situations where the Magistrate is unable to decide which of the parties was in possession or where he is of the view that neither of them was in possession is made in S.146 under which he may attach the subject of dispute until the determination of the rights of parties by a competent Court. The scheme of SS.145 and 146 is that the Magistrate, on being satisfied about the existence of a dispute likely to cause a breach of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements. Then he proceeds to peruse the statements, to receive and to take evidence and to decide which of the parties was in possession on the date of the preliminary order. On the other hand if he is unable to decide who was in such possession or if he is of the view that none of the parties was in such possession he may say so. If he decides that one of the parties was in possession, he declares the possession of such party. In the other two situations he attaches the property. Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding in one of the three ways and making consequential orders. There is no half way house, there is no question of stopping in the middle and leaving the parties to go to the :8: Civil Court. Proceeding may however be stopped at any time if one or other of the parties satisfies the magistrate that there has never been or there is no longer any dispute likely to cause a breach of the peace. If there is no dispute likely to cause a breach of the peace, the foundation for the jurisdiction of the magistrate disappears. The Magistrate then cancels the preliminary order. This is provided by S.145 sub-s.(5). Except for the reason that there is no dispute likely to cause a breach of the peace and as provided by S.145(5), a proceeding initiated by a preliminary order under S.145(1) must run its full course. Now, in a case of emergency, a magistrate may attach the property, at any time after making the preliminary order. This is the first of the situations provided in S.146(1) in which an attachment may be effected. There is no express stipulation in S.146 that the jurisdiction of the magistrate ends with the attachment. Nor is it implied. Far from it. The obligation to proceed with the enquiry as prescribed by S.145 sub-s.(4) is against any such implication. Suppose a magistrate draws up a preliminary order under S.145(1) and immediately follows it up with an attachment under Section 146(1), the whole exercise of stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements becomes futile if he is to have no further jurisdiction in the matter. And yet he cannot make an order of attachment under S.146(1) on the ground of emergency without first making a preliminary order in the manner prescribed by Section 145(1). There is no reason why we should adopt a construction which will lead to such inevitable contradictions. We mentioned a little earlier that the only provision for stopping the proceeding and cancelling the preliminary order is to be found in S.145(5) and it can only be on the ground that there is no longer any dispute likely to cause a breach of the peace. An emergency is the basis of attachment under the first limb of S.146(1) and if there is an emergency, no one can say :9: that there is no dispute likely to cause a breach of the peace."
In view of the abovesaid clear position of law, without passing the preliminary order under Sub-Sec.(1) of Sec. 145 and in the absence of any material or circumstance available before the SDM for any breach of peace but for mere assertion in the kalandara that both the parties were asserting their title to the subject properties and the attachment was necessary for maintaining peace, the impugned order is bad in law. Needless to say, as to whether there is a emergency for passing the attachment order, the Magistrate is not to act as a mouthpiece for the police but has to have his own satisfaction, which should be getting reflected from his own record. Then, as observed to earlier, on the same subject, the police had already proceeded with the proceedings under Sections 107/150 Cr.P.C., when the subject proceedings came to be initiated by the SDM. When that was so, what was the emergency to proceed for passing 'the Impugned Order', nothing emerges from the record. It is worth noting from 19.3.2007, when the SDM seized himself on the subject, till 10.4.2007, when the Impugned Order' came to be passed, at least neither the record nor 'the Impugned Order' speaks anything. In the given situation, the observation made by the SDM that the report of the police clearly indicates that there was apprehension/breach/peace and that he was not in a position to decide possession, is not only contrary to the procedure to be followed by the SDM U/s 145 Cr.P.C. it is sans application of mind. SDM has totally misdirected himself in conducting the proceedings initiated U/s 145 Cr.P.C. Failure of the SDM in passing the preliminary order under Sub-Sec.(1) of Sec. 145, thus vitiates 'the Impugned Order'. It is so held by the Hon'ble Supreme Court in Mathuralal's case (supra), para 4 whereof is quoted earlier. Relevant observations to the context in hand therein are reproduced for the sake of brevity, as follows :
: 10 :A preliminary order is considered so basic to a proceeding under S.145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Ss. 145 and 146. In fact, the first of the situations in which an attachment may be effected under S.146 of the 1973 Code has to be "at any time after making the order under sub-s.(1) of S.145"................."
'The Impugned Order' in view of the aforegoing, is therefore without jurisdiction."
5. As far the contention raised by the Ld. Counsel for the respondent nos. 2 and 3 that 'the Impugned Order' was an interlocutory order and thereby, the revision was not maintainable and barred under Sub-Sec.(2) of Sec. 397, the Hon'ble Supreme Court in 1999 Cr. L.J. 1620 Rajendra Kumar Sita Rram Pande and Ors. Vs. Uttam Ram and Anr., held as under :-
"Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under sub- section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression 'interlocutory order' has not been defined in the Code. In Amar Nath v. State of Haryana (1978) 1 SCR 222 : (AIR 1977 SC 2185), this Court has held that the expression 'interlocutory order' in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the : 11 : right of the parties cannot be said to be an 'interlocutory order'. In Madhu Limaye v. State of Maharashtra (1978) 1 SCR 749 : (AIR 1978 SC 47), a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding cannot be held to be an interlocutory order. In V.C. Shukla v. State (1980) 2 SCR 380 : (AIR 1980 SC 962), this Court has held that the term 'interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar and sub-
section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub-section (2) of Section 397 of the Code."
6. Applying the aforegoing test to the case in hand, while I observe that there has been miscarriage of justice in as much as 'the Impugned Order' has not come to be passed in consonance with the stipulated provisions of law, the attachment order under Sub-Sec.(1) of Sec. 146 Cr.P.C. in my considered view, is to be construed to be an intermediate or quasi final, inasmuch as, with the passing of the said order, the proceedings initiated under Sc. 145 come to an end, though the order so finally passed can be withdrawn later. Keeping in view the totality of facts and circumstances, in view of the liberal : 12 : construction to be given to the term "interlocutory order", contention raised by the Ld. Counsel for the respondent nos. 2 and 3 that 'the Impugned Order' is an 'interlocutory' and thereby, revision was barred under Sec. 397(2), is rejected.
7. In view of the aforegoing, revision petition is accepted and 'the Impugned Order' is set aside and the matter is remanded back to the SDM to proceed in the matter, in accordance with law.
Announced in the open court A.K. CHAWLA
on 24th December, 2007 Addl. Sessions Judge,
KKD Courts, Delhi.
: 13 :
Crl. Rev.: 10/07
24.12.2007
Pr.: None.
Vide my judgment passed separately, the revision is allowed, impugned order is set aside and the matter is remanded back to the SDM to proceed in the matter, in accordance with law. Record of the SDM be returned back forthwith. File be consigned to record room.
A.K. CHAWLA Addl. Sessions Judge, KKD Courts, Delhi.
: 14 :