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1996 DIGILAW 178 (RAJ)

Bharat Singh v. Kalji

1996-02-15

M.A.A.KHAN

body1996
JUDGMENT 1. - This petition under section 482 Criminal Procedure Code against the order of the Sessions Judge, Sawai Madhopur dated September 16, 1991 confirming the revival of the proceedings under section 145 Criminal Procedure Code by the Sub-Divisional Magistrate, Sawai Madhopur after the expiry of a period of more than ten years, arises under the following circumstances. 2. In October 1973 petitioner's watchman Phoolia Nath had complained to the Sub Divisional Magistrate, Sawai Madhopur and also the Station House Office, Police Station, Khandar, Distt. Sawai Madhopur that the respondents and their men, in order to take forcible possession of the land of khasra No. 40/2, admeasuring 5 Bighas situate at village Jailal Ka Pura and the guwar crop standing therein, had attacked upon him with lethal weapons. After conducting necessary enquiry into the reported incident the S.H.O., Police Station, Khandar reported to the learned Magistrate that there existed a likelihood of breach of peace due to the dispute between the parties over the possession of khasra No. 40/2. On receipt of such report on 24.11.73 the learned Magistrate registered a case for proceedings under Section 107/116 Criminal Procedure Code against the respondents. However, on respondent's stating that the parties were already facing such proceedings separately the learned Magistrate directed that the proceedings under Section 107/116 Criminal Procedure Code be dropped and, instead, proceedings under section 145 Criminal Procedure Code be initiated. Simultaneously he directed attachment of khasra No. 40/2 and appointed the Tehsildar, Khandar as Receiver thereof. Aggrieved by such order of the Magistrate dated 24.11.73 (wrongly mentioned as 26.11.73) Sri Phoolia approached the Court of Sessions Judge, Sawai Madhopur in Revision but the learned Sessions Judge, vide his order dated 4.8.75 in Criminal Revision No. 56 of 1974/20 of 1975, dismissed his revision petition and confirmed the order of the Sub Divisional Magistrate dated 24.11.73. On receipt of the order of the learned Additional Sessions Judge dated 4.8.75 the learned Magistrate, consigned his file to the record room on 6.8.1975. 3. It appears that during the meanwhile the parties had approached the Revenue authorities for getting their titles to khasra No. 40/2 settled. The land of khasra No. 40/2 stood allotted to Sri Bharat Singh under the Allotment Rules of 1970. The respondents challenged such allotment before the Revenue authorities including Collector, Sawai Madhopur. The Advisory Committee, vide decision dated 16.10.75, had recommended for upholding the allotment. The land of khasra No. 40/2 stood allotted to Sri Bharat Singh under the Allotment Rules of 1970. The respondents challenged such allotment before the Revenue authorities including Collector, Sawai Madhopur. The Advisory Committee, vide decision dated 16.10.75, had recommended for upholding the allotment. The respondents challenged the recommendation of the Advisory Committee before the Collector, Sawai Madhopur. When respondent's such application/objection under Rule 14(4) of the Allotment Rules was still pending the parties entered into a compromise on 23.8.78. According to the compromise arrived at between them the petitioner was to remain in his continued possession over khasra No. 40/2 and the respondents would not have any objection to that position. But such a compromise does not appear to have been approved of by the Revenue authorities. The Collector Sawai Madhopur vide his order dated 24.9.79 in Revision Petition No. 63/77 held that the recommendation of the Advisory Committee could not be approved and that the allotment in the name of Shri Bharat Singh petitioner would stand cancelled. 4. During the pendency of the proceedings for cancellation of allotment the petitioner appears to have approached the Court of Assistant Collector, Sawai Madhopur for ascertainment of his title to and possession over plot No. 40/2 by filing a regular suit of injunction No. 90/73 under the provisions of Rajasthan Tenancy Act. In that suit the petitioner prayed for interim injunction under Section 212 Rajasthan Tenancy Act but such application was rejected on 26.3.74. However, the Revenue Appellate Authority, vide his order dated 30.4.76 in appeal No. 295/74, set aside the order of the Assistant Collector dated 26.3.74 and granted ad interim injunction in favour of the petitioner. Revision No. 101/76 preferred by the respondents before the Board of Revenue against the order of the R.A.A. was also dismissed on 4.6.81. 5. The main suit for injunction was decreed on 5.4.85 by the Assistant Collector and the petitioner was declared to be the tenant of and in possession over khasra No. 40/2. The respondent were consequently restrained, by issue of a permanent injunction, from interfering with petitioner's possession over the land in dispute. 6. After losing face in the regular suit the respondents moved the Court of S.D.M., Bharatpur on 10.7.85 for revival of the proceedings under section 145 Criminal Procedure Code which stood consigned to record as per order dated 6.8.75. The respondent were consequently restrained, by issue of a permanent injunction, from interfering with petitioner's possession over the land in dispute. 6. After losing face in the regular suit the respondents moved the Court of S.D.M., Bharatpur on 10.7.85 for revival of the proceedings under section 145 Criminal Procedure Code which stood consigned to record as per order dated 6.8.75. The petitioner opposed such attempt of the respondents by filing written objection on 11.8.75 but the learned Magistrate vide his order dated 16.9.85 ordered for the revival of the proceedings. The petitioner challenged the order of the Magistrate before the learned Sessions Judge, Sawai Madhopur on the ground that the proceedings once having been dropped cannot be revived and re-started. The learned Sessions Judge, however, held that the order of the learned Magistrate dated 16.9.85 did not terminate the proceedings finally and the proceedings had simply remained suspended. 7. Mr. Jakawat Ali, the learned counsel for the petitioner, took considerable and appreciable pains in taking me through the relevant orders of various authorities and highlighted the fact that the purpose behind proceedings under.section 145 Criminal Procedure Code was to prevent the parties from committing breach of peace in the context of their dispute regarding land. The learned counsel submitted that the proceedings under section 145 Criminal Procedure Code are summary proceedings to decide the dispute between the parties on the basis of their possession over the subject matter of dispute. But if the dispute cannot be so settled then the course open to the Executive Magistrate is to attach the subject matter to dispute and direct the parties to get their title to the immoveable property determined by the court of competent jurisdiction Mr. Ali stressed that the proceedings under section 145 Criminal Procedure Code , by their very nature, are closely related to the apprehension of breach of peace and if such apprehension has ceased to exist then there can be no justification in continuing the proceedings under section 145 Criminal Procedure Code. It was submitted that the state of apprehension of breach of peace cannot remain intact for almost three decades. That apart the proceedings, irrespective of any apprehension of breach of peace, are bound to terminate on the determination of the title of the parties to the property in suit by a Court of competent jurisdiction. It was submitted that the state of apprehension of breach of peace cannot remain intact for almost three decades. That apart the proceedings, irrespective of any apprehension of breach of peace, are bound to terminate on the determination of the title of the parties to the property in suit by a Court of competent jurisdiction. The learned counsel submitted that since the title of the petitioner to khasra No. 40/2 was finally determined and decided by the Assistant Collector on 5.4.85 there can be no justification of keeping the proceedings under Section 146 and order under Section 146 alive. Mr. Ali vehemently urged that continuation of the proceedings under such circumstances was gross abuse of the process of the Court and threfore this court should invoke its extra-ordinary jurisdiction us 482 to do justice to the petitioners. 8. On the other hand the learned counsel for the respondents not only supported the order under challenge but also submitted that since the order of the learned Magistrate has already been subjected to the revisional jurisdiction of the learned Sessions Judge, and stood the test of such revision the court should not accept this petition. I propose to consider first the merits in the objection raised by Mr. Choudhry against the maintainability of this petition under section 482 Criminal Procedure Code. 9. It is by now well settled that the inherent powers of this court under section 482 Criminal Procedure Code is extraordinary and is therefore to be exercised with great care and caution in exceptional case i.e. in rarest of rare cases. In the case of Mrs. Rupan Deol Bajaj v. K.P.S. Gill and another, J.T. 1995 (7) SC 299 , the Apex Court observed that when the court exercises its inherent powers under section 482 Criminal Procedure Code the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court. This principle was again re-iterated by the Supreme Court in the case of State of Bihar Vs. Shri Rajendra Agarwala, J.T. 1996(1) SC 601 , wherein it was reiterated that only in exceptional cases i.e. rarest of rare case of mala fide initiation of proceedings to wreck private vengeance the court should invoke its inherent power to prevent the abuse of the process of the court. Shri Rajendra Agarwala, J.T. 1996(1) SC 601 , wherein it was reiterated that only in exceptional cases i.e. rarest of rare case of mala fide initiation of proceedings to wreck private vengeance the court should invoke its inherent power to prevent the abuse of the process of the court. It is thus not each and every case which can attract the provisions of section 482 Criminal Procedure Code. 10. Ordinarily the exceptional power under section 482 Criminal Procedure Code cannot be exercised in respect of an order against which a remedy by way of appeal or revision has been provided in the Code of Criminal Procedure itself. But the availability of a remedy in one or the other provisions of the Code would by itself not restrict the scope of inherent powers of the court under section 482 Criminal Procedure Code. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. It shall, therefore, have to be examined whether the given case merits exercise of its inherent powers under section 482 Criminal Procedure Code by the High Court. If on consideration of the facts of a given case the High Court is of the opinion that exercise of its inherent power is necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice then notwithstanding the fact that the impugned order has or has not been subjected to the appellate or revisional jurisdiction of a court, the High Court can exercise its powers under section 482, Criminal Procedure Code. However, it is not to be overlooked that howsoever wide in its scope the powers of High Court under section 482 Criminal Procedure Code might be such powers are to be sparingly exercised in rarest of rare cases. Let us now examine whether the present case stands this test. 11. The narration of facts, as made hereinabove, clearly exhibits that the dispute relates back to the year 1970 when the disputed land was allotted to the petitioner under the Allotment Rules 1970. The Advisory Committee has recommended the allotment of the land to the petitioner and such recommendations were being challenged by the respondents before Collector, Sawai Madhopur. 11. The narration of facts, as made hereinabove, clearly exhibits that the dispute relates back to the year 1970 when the disputed land was allotted to the petitioner under the Allotment Rules 1970. The Advisory Committee has recommended the allotment of the land to the petitioner and such recommendations were being challenged by the respondents before Collector, Sawai Madhopur. It is also an undisputed fact that when the proceedings were pending before Collector, Sawai Madhopur the respondents had withdrawn their objection by entering into a compromise with the petitioner and accepted later's title to and possession over the land in dispute. But before the Collector, Sawai Madhopur could have disapproved of the recommendations of the Advisory Committee the petitioners had filed a suit for injunction in the court of Assistant Collector, Sawai Madhopur against the respondents. The interim injunction granted in appeal by the R.A.A. in favour of the petitioner was confirmed by the Board of Revenue and ultimately the original suit was also decreed in his favour. It was after all such exercise that the prayer for revival of the proceedings under section 145 Criminal Procedure Code which had been lying in abeyance since 6.8.75, was made. 12. It may be recalled that while passing the preliminary order on 24.11.73 the learned Magistrate had also passed an order under section 146 Criminal Procedure Code for attachment of the land in dispute and appointed the Tehsildar, Khandar as Receiver thereof. On his order dated 24.11.73 having been confirmed by the Additional Sessions Judge on 4.8.75 the learned Magistrate ordered on 6.8.75 for the consignment of the case-record. That order dated 6.8.75 was bad in law in as much as the dismissal of revision against Magistrate's order dated 24.11.73 did not forbid the learned Magistrate to conduct the enquiry into the possession ove4 the land in dispute within two months prior to the preliminary order passed on 24.11.73, which he was duty bound to do. Here it would be useful to reproduce Sections 145 and 146 Criminal Procedure Code , which read as under:- "145. Here it would be useful to reproduce Sections 145 and 146 Criminal Procedure Code , which read as under:- "145. Procedure were dispute concerning land or water is likely to cause breach of peace - (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 the 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 respect the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of and the rents of profits of any such property. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute : Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after the date and before the date of this order nuder sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation the order of the Magistrate under sub-section (1) shall be final. (6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there form in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession to the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) It the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for we proper custody or sale of such property, aria, upon the completion of inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107. 146. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107. 146. Power to attach subject of dispute and to appoint receiver- (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: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. (2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908) : Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate- (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him; (b) may make such other incidental or consequential orders as may be just." 13. A combined reading of Sections 145 and 146 of the Criminal Procedure Code reveals that after initiating the proceedings under Section 145 and passing the preliminary order the Magistrate is duty bound to enquire into the question of possession over the subject of dispute by either of the two parties within two months prior to the passing of the preliminary order and to decide as to which of the parties was entitled to such possession and forbid the other party to disturb his possession until eviction through due process of law. The provisions of Sub-Section (4) and (6) of Section 145 are mandatory and the Magistrate cannot shirk his responsibility to make an enquiry contemplated by Sub-Section (4). It was not open to him to have attached the property under Section 146 of the Code of Criminal Procedure and then to have consigned the case-record after appointing the Tehsildar as receiver. That could have been possible only under Section 146(1) after having arrived at the decision that none of the parties was in possession of the subject of dispute within two months prior to the passing of the preliminary order under Section 145(1), by him or he had been unable to satisfy himself as to which of them was in possession within the relevant period. In that case it was obligatory on the part of the Magistrate to have stated in his order that the attachment was to remain in force until a competent Court has determined the rights of the parties thereto with regard to the person entitled to possession thereof. But the preliminary order dated 24.11.1973 is totally silent over that material aspect of the dispute. The law laid down in Sections 145 and 146 does not authorise the Magistrate to attach the properties of the citizen for an indefinite period without a direction to the parties to get their rights to the subject of dispute determined by a competent Court. Viewed thus the order dated 6.8.75 directing the consignment of case-record was inherently bad in law and deserved to be ignored. The necessary conclusion, therefore, would be that during the period between 6.8.75 and 16.9-85.the proceedings would be deemed to have remained pending, though without any progress. It, therefore, follows that revival of the proceedings by Magistrate's order dated 16.9.95, as confirmed by the impugned order of the learned Sessions Judge, was simply a formality. The necessary conclusion, therefore, would be that during the period between 6.8.75 and 16.9-85.the proceedings would be deemed to have remained pending, though without any progress. It, therefore, follows that revival of the proceedings by Magistrate's order dated 16.9.95, as confirmed by the impugned order of the learned Sessions Judge, was simply a formality. The impugned order simply puts the proceedings on the right track and aims at giving the opportunity to the Magistrate to do what he was required to do two decades ago. 14. However, the continuation of the proceedings in the facts and circumstances of the case, would undoubtedly amount to abuse of the process of the Court. It is evidently clear that the subject of dispute was allotted to the petitioner in early 70's and thereafter the litigation started between the parties. In the course of revision proceedings against the allotment the parties entered into a compromise on 23.8.78. In such compromise the respondents admitted petitioner's title to and possession over the subject of dispute. In order to get the rights to the subject of dispute determined by a Competent Court the petitioner approached the revenue Court and got his rights to the land in dispute determined. That satisfied the requirement of section 146(1) Criminal Procedure Code. In view of this factual position the Magistrate now is not required to conduct any enquiry under Section 145(4) and is bound to release the subject of dispute under Section 145(6) read with Section 146(1) in favour of the person who got his rights to the land in dispute finally determined in his favour by the competent Court. 15. There is yet another reason for releasing the subject of dispute from attachment. The attachment of subject of dispute is linked with the apprehension of breach of peace. At the time of revival of proceedings the Magistrate did not mention that apprehenation of breach still persists. It is difficult to presume that the apprehension of breach of peace which subsisted at the time of attaching the subject of dispute on 24.11.73 still continues. With the determination of the rights of the parties-such apprehension, if at all, must cease to exist legally. The attachment cannot be allowed to continue. In that sense of the matter too the proceedings must come to end otherwise that would amount to gross abuse of the process of the Court. 16. With the determination of the rights of the parties-such apprehension, if at all, must cease to exist legally. The attachment cannot be allowed to continue. In that sense of the matter too the proceedings must come to end otherwise that would amount to gross abuse of the process of the Court. 16. In the result, the proceedings under Sections 145 and 146 Criminal Procedure Code pending before the Executive Magistrate in this case are quashed and ordered to be dropped. The Tehsildar, Khandar shall release the subject of dispute from attachment in favour of the petitioner. The Magistrate concerned, would pass the necessary orders in his file in this behalf in conformity with the above directions. The petition be treated as allowed.Petition allowed. *******