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2000 DIGILAW 628 (PNJ)

Ram Dia v. State of Haryana

2000-06-01

BAKHSHISH KAUR

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JUDGMENT Bakhshish Kaur, J. (Oral) - The challenge in this petition is to the impugned order passed by the learned Additional Sessions Judge, Kurukshetra, who had quashed the proceedings initiated under Section 145 of the Code of Criminal Procedure. 2. The facts of this case are that Ram Dia (now petitioner) moved an application on 3.11.1976 for initiating the proceedings under Section 145 of the Code of Criminal Procedure. The application was dismissed as he was not found in possession, therefore, he went in revision, which was accepted and the case was remanded by the then learned Sessions Judge, Kurukshetra on 9.8.1980. On enquiry made by Shri Raj Kumar, Sub Divisional Magistrate, Nathi Ram (now respondent No. 2) was found to be in possession and again the order dated 23.3.1981 passed by the Sub Divisional Magistrate was challenged and the Additional District Judge, Kurukshetra remanded the case vide order dated 23.10.1981. The order dated 14.6.1985 passed by the Sub Divisional Magistrate after the remand was challenged in a revision under section 397 of the Code of Criminal Procedure and the proceedings were quashed. 3. I have heard Ms. Geeta Mutharia, AAG, Haryana. None has appeared on behalf of the petitioner in spite of the fact that the case was shown in the list and the notice was issued to the counsel for the petitioner. 4. Certain observations made by the learned Additional Sessions Judge in the impugned order would clinch the matter and the same read as under :- "6. The file shows that on 20th February, 1984, statement was made by the counsel for the respondent before the lower court that the decision be given after seeing the spot and in case, the matter was not clear after seeing the spot, they be asked to give evidence. The respondents therein are petitioners herein. Thereafter the case kept on being adjourned for one reason or another. In between, an application was also filed for contempt of court and its decision was also deferred. On 25.3.1985, the court observed that he considered it necessary to see the spot before giving any decision. Thereafter, six adjournments were granted. On 6.6.1985. the order indicated that the spot would be inspected on 14.6.1985. Strangely enough, on 14.6.1985 the judgment was delivered without going to the spot or without calling upon the petitioners herein to adduce evidence. On 25.3.1985, the court observed that he considered it necessary to see the spot before giving any decision. Thereafter, six adjournments were granted. On 6.6.1985. the order indicated that the spot would be inspected on 14.6.1985. Strangely enough, on 14.6.1985 the judgment was delivered without going to the spot or without calling upon the petitioners herein to adduce evidence. The impugned order, therefore, suffers from this irregularity and is liable to be quashed on this score alone. 7. In normal circumstances, the case could have been remanded for giving fresh decision after seeing the spot or after allowing the petitioners to give evidence but I am not going to adopt this course as 12 years have already passed. The matter has been remanded twice. No useful purpose has been served by remand. No untoward incident also happened where breach of peace might have been threatened. It has also been brought to my notice that civil litigation was pending between the parties. Keeping all these factors in view I accept the present appeal and quash the proceedings initiated under Section 145 of the Code of Criminal Procedure by the respondents herein." 5. A careful reading of the impugned order, as above, and the fact that the civil litigation is pending between the parties, as observed by the learned Additional Sessuions Judge, no case is made out to interfere with the impugned order. In other words, the order dated 14.6.1985 passed by the Sub Divisional Magistrate, which was impugned before the learned Additional Sessions Judge, would show that it is highly vague. In the remand order dated 25.3.1985, it was specifically indicated that it is necessary to see the spot before giving any decision but the learned Sub Divisional Magistrate had taken no steps to inspect the same, rather remained satisfied by shifting the blame on the shoulder of another officer. The operative and the relevant portion of his order reads as under :- "Date has been fixed to inspect the spot but the official has not gone to inspect the spot due busy in administrative work. The operative and the relevant portion of his order reads as under :- "Date has been fixed to inspect the spot but the official has not gone to inspect the spot due busy in administrative work. For this reason, the arguments have been heard on the basis of evidence which is available on the file and I decide the case on the basis of statements of witnesses of first party and Ram Dias possession over spot in dispute (which length from East to West is 31-34 feet and shown in order of 10-10-78) be declared as it has been cleared from evidence that in year 1976, before filing the application the applicant Ram Dia was in possession over the spot in dispute. The counsel of the respondent has said in arguments that house has been constructed over this place. In doing so, it has been not in his favour and to change the position of the place by the respondent during continuance of case be declared as illegal." 6. No reasoning whatsoever has been given to arrive at a conclusion regarding the possession of a party over the site in dispute nor the statement of any of the witnesses examined by the parties has been discussed. It appears that the learned Magistrate passed order on surmises and conjectures. He recorded the finding in a very cursenal manner that before filing the application, the applicant Ram Dia was in possession over the spot in dispute. It is mandatory for the Magistrate to record his findings on the strength of the material brought on the record as to which party was in possession. The solitary truth is that oral as well as documentary evidence brought on record should be discussed and then come to a conclusion as to which party was in possession. The learned Magistrate has forgotten all the norms and procedures and misused under the Code for the purpose of deciding the application under Section 145 of the Code of Criminal prpoedure. 7. The learned Magistrate has forgotten all the norms and procedures and misused under the Code for the purpose of deciding the application under Section 145 of the Code of Criminal prpoedure. 7. In Raghubir Singh v. Gram Samaj, Kotra through Ram Asre, AIR 1964 Allahabad 394 it was held that in a proceeding under Section 145 of the Code of Criminal Procedure, the main question to be decided by the Magistrate is as to which of the parties is in actual possession of the property in dispute on the date of the preliminary order and two months preceding it, he must record a clear finding on that point. He cannot decide the question of title and on that basis decide possession. 8. For the sake of repetition, I may add that the learned Magistrate had failed to follow the directions contained in the remand order by not inspecting the spot. Thus, on this short ground, the order impugned before the learned Additional Sessions Judge could not be sustained. In addition to this, civil litigation is also pending between the parties. Thus, under such circumstances, the rights of the parties, if any, can adequately and properly be considered and protected by the Civil Court dealing with the matter. It is not the purpose of Section 145 Criminal Procedure Code to settle such complicated issues of facts which can appropriately and adequately be dealt with only by a Civil Court of competent jurisdiction, as has been held by this Court in Lord Shiva Charitable Trust v. State of Haryana, 1999(1) RCR(Criminal) 706. 9. In view of the foregoing discussion. I am of the considered opinion that the impugned order does not suffer from any illegality or infirmity, the order impugned, therefore, is maintained. Resultantly, this petition is dismissed. Petition dismissed.