Gajendra Singh v. State of Rajasthan — 1994 DIGILAW 618 (RAJ)

Honble YADAV, J. — The present criminal misc. petition under section 482 Cr.P.C.arises out of a judgment dated 23.4.1986 passed in Cr .Revision No.19/86 by the learned Additional Sessions Judge, Bali by means of which the learned Additional Sessions Judge has reversed the order dated 15.1.85 passed by sub-Divisional Magistrate, Bali in a proceedings under section 145 Cr.P.C. in case No.23/83. (2). The facts of the case which are borne out from the perusal of record that on 8.11.82 one Megh Singh s/o Shri Hari Ramji Rawana Rajput of Sanderao executed an agreement to sale in favour of petitioner Gajendra Singh for sale of lands measuring 40 1/2 bighas in Khasra No.909,910 and 911 Dhibi Bera and 48 bighas of land comprised in Khasra Nos.892,913 and 914 Bera Sajnavi for a sum of Rs.70,000/- out of which he paid Rs.40,000/- on the date of agreement and rest of Rs.30,000/- were agreed to be paid within three years @ Rs.10,000/-per year. (3). There is recital in the agreement dated 8-11-82 that the possession about the disputed land has been delivered to Shri Gajendra Singh on the date of execution of agreement alongwith structures standing thereon. It is further alleged that on 11.5.83 the petitioner applied for electric connection and the amount of demand note issued by R.S.E.B. for old bills and reconnection charges etc. were paid by Gajendra Singh on 16.9.83. Gajendra Singh has also alleged to have shown Gwar Crop in June- July, 1983. The Bigodi(land revenue) in respect of the disputed lands was alleged to have been deposited by Gajendra Singh on 3.8.83. (4). During the pendency of the present proceedings Shri Gajendra Singh expired and in his place his heirs and legal representatives, petitioner No.l to 8, were substituted as contemplated u/s.145 Cr.P.C. (5). It is also alleged in the memo of petition that on 7.1.83 one Hanwant Singh, father of non-petitioner No.2 and brother-in- law of non-petitioner No.3 got a criminal case registered against Gajendra Singh & ors. from Megh Singh with police station Takhatarh for offences u/ss.427, 447 and 379 IPC. It is also alleged in the memo of petition that on 7.1.83 one Hanwant Singh, father of non-petitioner No.2 and brother-in- law of non-petitioner No.3 got a criminal case registered against Gajendra Singh & ors. from Megh Singh with police station Takhatarh for offences u/ss.427, 447 and 379 IPC. It is alleged that Gajendra Singh approached to the senior police officers complaining that the SHO of police station, Takhatgarh is acting under the thumb of Hanwant Singh and requested for change of investigating officer and on being satisfied on the complaint of Shri Gajendra Singh the investigating officer was changed and was handed over to the Additional S.P., Pali who after investigation gave final report due to which SHO was annoyed with Gajendra Singh. (6). It is also disclosed in para 3 of the petition that Megh Singh by registered sale deed dated 10.7.83 transferred the disputed land mentioned in preceding paragraph to non-petitioner Nos. 2 and 3. (7). Aggrieved against the execution of sale-deed by Megh Singh in favour of non-petitioner No.2 and 3, deceased Gajendra Singh filed a civil suit in the court of District Judge, Sirohi against Megh Singh for specific performance of the contract and in that suit for specifi performance the non-petitioner Nos. 2 and 3 were also arrayed as defendants. (8). Since the SHO, police station, Takhatgarh was annoyed with the deceased Gajendra Singh, therefore, he initiated proceedings against him about the disputed land on 23.1.83 under section 145 Cr.P.C. alleging therein that there is serious apprehension of breach of peace between the parties. (9). After receiving the aforesaid report from the SHO, Pratapgarh, the SDM, Bali after being satisfied under section 145(1) that there is serious apprehension of breach of peace between the parties, therefore, preliminary order was passed on 23.10.83 and after passing the preliminary order, the Sub Divisional Magistrate, Bali directed both the parties to appear before him and adduce evidence in support of their respective claims. (10). It is pertinent to mention that on the next day i.e. 24.10.83 the SHO, P.S.,Pratapgarh moved an application that there is serious apprehension of breach of peace between the parties for cutting crop standing over the disputed land, therefore, the land in dispute may be attached. The learned SDM passed an order u/s.146(1) Cr.P.C. and passed an attachment order on the ground of emergency and a Receiver was appointed. The learned SDM passed an order u/s.146(1) Cr.P.C. and passed an attachment order on the ground of emergency and a Receiver was appointed. It is further pertinent to mention that it is brought to the notice of SDM that before attachment order was implemented the crop was already cut away. (11). After putting appearance instead of adducing evidence in support of their respective claim, i.e. on behalf of the petitioners, an application u/s.l45(5) Cr.P.C.was moved stating therein that there is no apprehension of breach of peace between the parties. (12). After receiving the aforesaid application moved on behalf of the petitioner Nos. 1 to 9 on 19.11.84 the SDM directed the counsel for the petitioners to supply a copy of his application to the counsel for non-petitioner Nos.2 and 3 and they were directed to file reply. The SDM has granted time to the counsel for non-petitioner Nos.2 and 3 to file their reply upto 26.11.84. No reply was filed on behalf of non-petitioner Nos.2 and 3 on 26.11.84 . Again time was given and the counsel for non- petitioner Nos.2 and 3 were allowed to file objection to the application moved by counsel for the petitioner under section 145(5) Cr.P.C. Again on 10.12.84, time for filing reply was sought and was granted and 17.12.1984 was date fixed for filing the reply to the said application. Practically a detailed reply was filed on behalf of non-petitioner Nos.2 and 3 on 17.12.1984 and after receiving the reply from the non-petitioner Nos.2 and 3 the SDM fixed 7.1.85 the date for argument and on that day full fledge argument was heard before the learned0 SDM for disposal of the application under section 145(5)Cr.P.C. (13). After hearing both the parties the learned SDM, Bali came to this conclusion that there is no apprehension of breach of peace between the parties, therefore, proceedings should be dropped and he directed to release the property in favour of the petitioners. (14). Aggrieved against the order passed by the learned SDM, Bali on 15.1.1985, a revision was filed before the learned Additional Sessions Judge, Bali, who after hearing learned counsel for both the parties set aside the order passed by the learned SDM Bali dated 15.1.85 and aside the case was remanded to him to decide the controversies between the parties expeditiously. (15). (15). I have heard learned counsel for the petitioner Shri T.S.Champawat, learned counsel for the State, Shri HR Panwar & Shri VR Mehta, learned public prosecutor and Shri Daulat Singh Nimla, learned counsel for the respondent Nos.2 and 3 at length. (16). Learned Public Prosecutor urged before me that the instant proceedings under section 482 Cr.P.C. is not maintainable. He invited my attention to the mandatory provisiocs contained u/s.397 Cr.P.C. where it is clearly provided under section 397(3) Cr.P.C. that if an application under this section has been made by any person either to the High Court or to the Sessions Court, no further application by the same person shall be entertained by other of them. Therefore, in such situation if the petitioner can invoke the revisional jurisdiction of this court u/s.397 Cr.P.C. then he is not authorise to move an application u/s.482 Cr.P.C. which is residuary inherent power of this court. According to the learned Public Prosecutor the power of the court u/s.482 Cr.P.C. can be invoked by any person if there is no other alternative remedy provided under any of the sections of Cr. P.C. According to the submissions of the learned Public Prosecutor, since the earlier revision was filed by the non-petitioner Nos.2 and 3, therefore, instead of invoking jurisdiction of this court u/s.482 Cr.P.C. the petitioner ought to have moved an application u/s. 397 Cr P.C. invoking revisional jurisdicion of this court. In my humble opinion the argument advanced on behalf of the State by the learned Public Prosecutor has substance. Therefore, the present proceedings initiated u/s.482 Cr.P.C. is not maintainable. (17). Mr. TS. Champawat, learned counsel for the petitioner has not disputed before me the aforesaid submission made by the learned Public Prosecutor. The learned counsel for the petitioner moved an application for converting instant petition u/s.482 Cr.P.C. into a criminal revision u/s.397/401 Cr.P.C. From the appearance, the learned counsel for the petitioner is a young member of the Bar and such bonafide mistake is normal and natural,therefore keeping in view the aforesaid fact I allow the application moved by the learned counsel for the petitioner and permit him to convert the proceedings u/s.482 Cr.P.C, into a criminal revision u/s. 397/401 Cr.P.C. The application moved today may be placed on record and the learned counsel for the petitioner is permitted to file an amended cause title. (18). (18). Learned counsel for the petitioner firstly urged that the learned Additional Sessions Judge, Bali has no authority in law to substitute the finding of existence or non existence of apprehension of breach of peace recorded by the learned SDM, Bali. Learned counsel further submitted that since a civil suit for specific performance is pending in a competent civil court, therefore, the present proceedings u/s.145 Cr.P.C. are not maintainable. (19). Learned Public Prosecutor refuted the aforesaid contention raised by the learned counsel for the petitioner and submitted that the judgment given by the learned Additional Sessions Judge, Bali is eminently just and proper and does not require any interference by this court. (20). Learned counsel appearing for the respondent Nos.2 and 3 Shri Daulat Singh Nimla urged before me that it is apparent from the various order-sheets of the SDM, Bali that on one occasion an application on behalf of the petitioner was moved that they were prepared to give evidence in support of their respective possession but all of a sudden they changed their mind and moved an application on 19.11.1984 stating therein that there is no apprehension of breach of peace between the parties. (21). It is true that time for filing reply to the aforesaid application was given to the learned counsel for non-petitioner Nos.2 and 3 and a detailed reply to the application moved on behalf of the petitioners u/s.145(5) Cr.P.c.was filed. But according to the learned counsel for the non-petitioner Nos.2 and 3 he was not given an opportunity to adduce evidence to demonstrate before the court that there is apprehension of breach of peace between the parties. (22). I have given my thoughtful consideration to the arguments raised on behalf of all the parties and carefully one through the record and in my humble opinion once the learned SDM,Bali after examining the evidence in support thereof, recorded his satisfaction u/s.l45(l) Cr.P.C. about the apprehension of breach between the parties, that would be deemed to be valid upto the last final decision of the case unless some application u/s. 145(5) Cr.P.C. is moved and some material evidence is brought to his notice that the apprehension of breach of peace does not exist. (23). (23). It is well settled that u/s. 145 Cr.P.C. it is for the Magistrate to be satisfied regarding the existence of breach of peace and once he records his satisfaction in the preliminary order, the High Court or the Sessions Court in exercise of their revisional power cannot go into the sufficiency or otherwise of the Materials on the basis of which the satisfaction of Magistrate is based. It is well to remember that a finding of existence of breach of peace between the parties once recorded by the magistrate at the stage of preliminary order then it will remain valid till the final decision of the proceedings and there is no such provision that at the time of passing the final order the learned SDM should again record a finding about the apprehension of breach of peace. (24). In the instant case once the Magistrate had passed preliminary order on 23.10.1983 setting out the reasons for holding that there is serious breach of peace between the parties, in normal course it is not necessary that the breach of peace should continue at every stage of the proceedings unless there is a clear evidence to show that the dispute has ceased to exist so as to bring the case within the embit of section 145(5) Cr.P.C. unless such a contingency arise, the proceedings have to be carried to its logical conclusion culminating in the final order u/s.l45(6) Cr.P.C. (25). Keeping in view the aforesaid preposition of law in mind now I proceed to decide the present controversy between the parties in the light of the evidence available on record. (26). It is apparent on the face of record that an application u/s.l45(5) Cr.P.C. was moved on 19.11.84 on behalf of the petitioners stating therein that there is no apprehension of breach of peace between the parties. A reply which was filed by the non- petitioner Nos. 2 and 3 on 17.12.84, they have categorically stated that there is a serious apprehension of breach of peace between the parties. As indicated above both the parties, were at variance about the apprehension of breach of peace, therefore, the learned SDM, Bali should have not decided that there is no apprehension of breach of peace between the parties without affording both the parties an opportunity to adduce evidence in support thereof. As indicated above both the parties, were at variance about the apprehension of breach of peace, therefore, the learned SDM, Bali should have not decided that there is no apprehension of breach of peace between the parties without affording both the parties an opportunity to adduce evidence in support thereof. On mere allegation on a simple application by both the parties taking contradictory stands, cannot be allowed to be a sufficient compliance of sec.l45(5) Cr.P.C.and such contradictory stand taken by both the contesting parties can never lead to inference that the apprehension of breach of peace between the parties had ceased to exist specially when few months earlier same Magistrate himself after analytical discussion of the material on record has recorded a categorical finding at the time of passing an preliminary order u/s. 145 (1) Cr.P.C. Thus without any material in support of application he has no authority to come to the conclusion that the apprehension of breach of peace between the parties ceased to exist. In fact the aforesaid finding recorded by the learned Magistrate that the serious apprehension of breach of peace between the parties ceased to exist is based on no evidence. (27). It is well to remember that the pleadings or applications cannot be substituted as an evidence. In the present case the learned Magistrate has committed serious error treating both the applications as an evidence and in a very casual manner recording the finding that the apprehension of breach of peace which did exist at the time of preliminary order ceased to exsit. (28). In view of the aforesaid facts and circumstances of this case the order passed by the learned SDM, Bali holding that there is no apprehension of breach of peace between the parties and directing the restoration of possession to the petitioner is perse illegal and not sustainable in the eye of law. (29). The learned counsel for the petitioners had further argued before me that since a suit for specific performance is pending in the Court of District Judge, Sirohi between the parties, therefore, the present proceedings are not maintainable. In support of his aforesaid contention he placed reliance on a decision given in Ram Sumer Puri Mahant Vs. State of U.P. (1). (30). In reply to the aforesaid argument, learned Public Prosecutor invited my attention to a latest decision given by Honble Supreme Court in Prakash Chand Sachdeva Vs. In support of his aforesaid contention he placed reliance on a decision given in Ram Sumer Puri Mahant Vs. State of U.P. (1). (30). In reply to the aforesaid argument, learned Public Prosecutor invited my attention to a latest decision given by Honble Supreme Court in Prakash Chand Sachdeva Vs. State & Ors.s (2) where their lordships of the Honble Supreme Court specifically ruled that the ratio of Ram Sumer Puri Mahant (supra) is not attracted in those cases where there is no dispute, about the title. When claim or title are not in dispute between the parties on their own showing they are co owners and there is no partition, one cannot be permitted to act forceably and unlawfully and ask the other to act in accordance with law. Their lordships further held that where the dispute is not on the right to possession but on the question of possession the Magistrate is empowered to take cognizance u/s. 145 Cr.P.C. (31). It is suffice to say that neither the SDM nor the learned Additional Sessions Judge, Bali has properly carred to ascertain the right of the petitioners based on unregistered agreement dated 8.11.1982. The attention of both the courts were not drawn to the provisions contained u/s. 54 of Transfer of Property Act. (32). In view of the facts and circumstances of this case the ratio of the case of Ram Sumer Puri (Supra) relied by the learned counsel for the petitioner is not attracted. I do not propose to gave a detailed finding about the right to possession of the parties which is not necessarily to be decided in a proceeding u/s. 145 Cr.P.C. because in a proceeding u/s. 145 Cr.P.C. the Court of law is required to see either possession of a particular party on the date of preliminary order passed or prior to two months from the date of preliminary order. Thus the main object of Section 145 Cr.P.C. is to decide that whose actual feet is over the land in dispute meaning thereby actual physical possession and not legal possession supported by title. (33). Thus the main object of Section 145 Cr.P.C. is to decide that whose actual feet is over the land in dispute meaning thereby actual physical possession and not legal possession supported by title. (33). In the present case the case is remanded with a direction that before entering into question of actual physical possession of the parties on the date of preliminary order or prior to two months from the date of the preliminary order the Magistrate will decide the application moved by the petitioners u/s.l45(5) Cr.P.C. as to whether there is apprehension of breach of peace between the parties. In my considered opinion apprehension of breach of peace is a condition precedent before deciding the question of possession of the parties. In fact the finding to the effect that there is serious apprehension of breach of peace between the parties confers juridiction to the SDM to decide the claim of actual physical possession of the parties. In absence of the aforesaid finding specially when it is challenged by one of the parties required to be decided after giving opportunity to adduce evidence to both the parties. In the present case a careful scrutiny of the order-sheets of the Sub Divisional Magistrates Court there is no reference at all affording an opportunity to the parties to adduce evidence in support of their respective claims as to whether there is no apprehension of breach of peace between the parties as alleged by one party who moved an application under sub Sec. (5) of Sec. 145 Cr. P.C. or there is apprehension of breach of peace as alleged by non-petitioner Nos.2 and 3. Thus the finding recorded by SDM u/s.145(5) Cr.P.c. to the effect that there is no apprehension of breach of peace between the parties in the instant case is based on no evidence and as such not sustainable in eye of law. (34). It is true that at the time of passing preliminary order u/s 145(1) Cr.P.C. the learned SDM has recorded a finding that there is a serious apprehension of breach of peace between the parties after careful examination of the material brought before him by the SHO, police station, Takhatgarh. (34). It is true that at the time of passing preliminary order u/s 145(1) Cr.P.C. the learned SDM has recorded a finding that there is a serious apprehension of breach of peace between the parties after careful examination of the material brought before him by the SHO, police station, Takhatgarh. But that finding about the apprehension of breach of peace was recorded in absence of both the contesting parties, therefore, that finding about the apprehension of breach of peace which is recorded in absence of both the parties will be taken to be ex-parte finding. Although that ex-parte finding about the apprehension of breach of peace will continue to remain valid upto the final order passed by the SDM u/s. 145 (6) Cr. P.C. but wherever and wheneves such exparte finding about the apprechonsion of breach of pacerecorded by the Magistrate at the time of passing the preliminary order is challenged by any of the party then in such a situation the Magistrate is under statutory obligation to afford opportunity to both the parties to adduce evidence and after analytical discussion of the oral and documentary evidence adduced by the parties must record a categorical finding as to whether the apprehension of breach of peace exists or does not exist and only then he can pass on to decide the respective claims of actual physical possession of the parties. (35). Before parting with the judgment I feel it expedient to observe that the learned Additional Sessions Judge has no authority in law to substitute the finding recorded by the learned SDM about the existence or non existence of apprehension of breach of peace between the parties. But in such a situation where he finds such finding either perverse or based on no evidence, only then he should set aside the finding about the apprehension of breach of peace and remand the case directing the SDM himself to record a finding about the existence or non-existence of apprehension of breach of peace between the parties. (36). But in such a situation where he finds such finding either perverse or based on no evidence, only then he should set aside the finding about the apprehension of breach of peace and remand the case directing the SDM himself to record a finding about the existence or non-existence of apprehension of breach of peace between the parties. (36). It is well to remember that u/s.l45(l) Cr.P.C. the phraseology used by the Legislature is to the effect that whenever an Executive Magistrate is satisfied from report of the police officer or upon other information that a dispute likely to cause a breach of peace exists concerning any land or water or 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. Thus,it goes without saying that the intention of Legislature u/s.145(1) is that existence or non-existence of finding of apprehension of breach of peace is to be recorded by the SDM who is incharge of law and order in his Sub Division. In fact the object of section 145 Cr.P.C. is to arrest the apprehension of breach of peace between the parties and not to decide the right to possession of the parties. (37). In the result, the instant revision petition is hereby dismissed and the learned SDM is directed to decide the question of opprehension of breach of peace between the parties as expeditiously as possible after affording both the parties an apportunity of adducing oral and documentary evidence in support of their respective claims about existence of apprehension of breach of peace or about its non-existence. It goes without saying that the counsel for the petitioners will be entitled to cross-examine to the witnesses adduced by the non-petitioner Nos.2 and 3 and vice-versa.