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2001 DIGILAW 139 (RAJ)

Nathu Khan v. State of Rajasthan

2001-01-25

SUNIL KUMAR GARG

body2001
Honble GARG, J.–This petition u/S. 482 Cr.P.C. has been filed by the petitioner Nathu Khan (hereinafter referred to as the party no. 1) for quashing the order dated 28.7.2000 passed by the learned Additional Sessions Judge, Bikaner in criminal revision no. 1/2000 and the order dated 27.12.1999 passed by the learned Sub Divisional Magistrate, Khajuwala in Criminal Case No. 320/1999 by which the learned SDM withdrew the order of attachment of the property in question dated 22.10.1999 and directed that disputed property be given to the main allottee Rameshwarlal and dropped the proceedings under Section 145 Cr.P.C. (2). It arises in the following circumstances: On 17.10.1999, report was made by the party no. 1 against the respondents No. 2 to 4 (hereinafter referred to as the party no. 2) in the Police Station Chhatargarh and on that report, SHO, Police Station Chhatargarh filed a complaint u/S. 145 Cr.P.C. before the learned Sub Divisional Magistrate, Khajuwala on 22.10.1999 stating inter-alia that the land in dispute has been given to one Purkharam and on 16.10.1999 he came to party no. 1 and told him that the party no. 2 did not allow him to cut the crops of Kapas. Thereafter, party no. 1 alongwith Purkaram went to the field where party no. 2 met and seeing them, party no. 2 started abusing them and told that they would not allow to cut the crops. It is further stated in the complaint that police found that there is a dispute between the parties and both parties are claiming their rights over the disputed property and there is imminent danger. (3). On this complaint of the police, the learned Sub Divisional Magistrate, Khajuwala drew a preliminary order on 22.10.1999 and appointed Tehsildar as Commissioner and the land in question was attached and notices were issued to the parties. (4). Thereafter, proceedings continued before the learned Sub Divisional Magistrate and on 27.12.1999, after hearing both the parties, he withdrew the order of attachment of the disputed property dated 22.10.1999 and directed that the disputed property be given to the main allottee Rameshwarlal and dropped the proceedings under Sec. 145 Cr.P.C. holding inter-alia:- 1. That disputed land which was attached was in possession of the party no. 2 and in coming to this conclusion, he placed reliance on the report of the Commissioner. 2. That disputed land which was attached was in possession of the party no. 2 and in coming to this conclusion, he placed reliance on the report of the Commissioner. 2. That the main allottee of the land in question was Rameshwarlal, who gave the land in question for cultivation to party no. 2. 3. That there was no possession of the party no. 1 over the disputed land nor there was any title in favour of the party no. 1 as the power of attorney which was given in favour of party no. 1 by Rameshwarlal was cancelled by Rameshwarlal on 4.9.1997. 4. That in the above circumstances, he withdrew the order of attachment of the property in dispute dated 22.10.1999 and directed that property in question be given to party no. 2 and dropped the proceedings under Sec. 145 Cr.P.C. (5). Aggrieved from the said order of the learned Sub Divisional Magistrate Khajuwala dated 27.12.1999, the party no. 1 preferred a criminal revision before the learned Sessions Judge, Bikaner, which was transferred to the Court of Additional Sessions Judge, Bikaner and the same was registered as Criminal Revision No. 1/2000. (6). The learned Addl. Sessions Judge, Bikaner through order dated 28.7.2000 rejected the revision filed by the party no. 1 holding inter-alia that the order in question which was passed by the learned Sub Divisional Magistrate, Khajuwala on 27.12.99 does not suffer from any illegality or irregularity and moreover, he also came to the conclusion that since over the same land, there was civil dispute between the parties and in the civil suit, an application for temporary injunction,which was filed by the wife of the party no. 1, was rejected holding that she was not in possession and, therefore, he upheld the order of the learned Sub Divisional Magistrate dated 27.12.1999. (7). Aggrieved from the said orders passed by the learned Sub Divisional Magistrate, Khajuwala and the learned Addl. Sessions Judge, Bikaner, this criminal misc. petition u/S. 482 Cr.P.C. has been filed by the party No.1. (8). In this petition, the following submissions have been made by the learned counsel for the party no. 1:- 1. (7). Aggrieved from the said orders passed by the learned Sub Divisional Magistrate, Khajuwala and the learned Addl. Sessions Judge, Bikaner, this criminal misc. petition u/S. 482 Cr.P.C. has been filed by the party No.1. (8). In this petition, the following submissions have been made by the learned counsel for the party no. 1:- 1. That the order dated 27.12.1999 passed by the learned Sub Divisional Magistrate, Khajuwala is illegal and deserves to be set aside because that order was passed without hearing the party no.1 as the date in the proceedings u/S. 145 Cr.P.C. before the SDM was 10.1.2000 and the order dated 27.12.1999 was passed in his absence. 2. That once the Sub Divisional Magistrate was satisfied from the police investigation and land in question was attached on 22.10.1999 there was no occasion for the SDM to recall that order on 27.12.1999 and the SDM had no right to decide as to who is owner of the land in question and it would be decided by the competent civil court for which suit was already pending and, therefore, the order passed by the Sub Divisional Magistrate as well as the order passed by the learned Addl. Sessions Judge are without jurisdiction and the same deserve to be set aside. 3. That so far as the rejection of application of the wife of the party no. 1 by the civil court is concerned, no right has accrued to the party no. 2 as civil misc. appeal is pending before this Court. Hence, it is prayed that this petition be allowed and both the impugned order be quashed. (9). On the other hand, the learned Public Prosecutor and the learned counsel for the party no. 2 have submitted that impugned orders do not suffer from any infirmity of illegality. They further submitted that there exists no manifest illegality or error in both the impugned orders and thus, this petition u/S. 482 Cr.P.C. be dismissed. (10). I have heard the learned counsel for both the parties and perused the record. Position of law in respect of proceedings u/S. 145 Cr.P.C. when civil suit is pending between the parties. (11). The Honble Supreme Court in Jhummamal vs. State of M.P. (1), has held that mere pendency of civil suit does not bar the proceedings u/S. 145 Cr.P.C. (12). In Prakash Chand Sachdeva vs. The State and anr. Position of law in respect of proceedings u/S. 145 Cr.P.C. when civil suit is pending between the parties. (11). The Honble Supreme Court in Jhummamal vs. State of M.P. (1), has held that mere pendency of civil suit does not bar the proceedings u/S. 145 Cr.P.C. (12). In Prakash Chand Sachdeva vs. The State and anr. (2), the Honble Supreme Court further held that the proceedings u/S. 145 Cr.P.C. could not be dropped merely on the ground of pendency of civil suit. Similar view was taken by this Court in Sushil Kumar vs. State of Rajasthan (3). (13). Before proceeding further, purpose and nature of the proceedings u/S. 145 Cr.P.C. may be stated here Purpose of Sec. 145 Cr.P.C. (14). The purpose of Sec. 145 Cr.P.C. and allied provision is (1) to prevent a breach of the peace, (2) to decide as to who was in possession in fact on that date of the preliminary order, and (3) to settle the matter temporarily by maintaining status quo until the rights are determined by a competent court. Nature of proceeding (15). In substance and effect a proceeding u/S. 145 Cr.P.C. is not for eviction of a person from any land but for the prevention of breach of the peace by declaring the party found in possession to be entitled to remain in possession until evicted therefrom in due course of law. Although the party who forcibly and wrongfully dispossessed the other party attracting the application of the proviso to sub section (4) has to be factually and physically evicted from the property, by a legal fiction it is only for the purpose of treating him in possession on the date of the preliminary order. Vide Chandu Naik vs. Sitaram B. Naik (4). If the question of possession has been adjudicated by the civil court, its effect on the proceedings u/S. 145 Cr.P.C. (16). The basic authority on this point is Ram Sumer Puri Mahant vs. State of U.P. (5), where the Honble Supreme Court has laid down the law in the following manner:- ``When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding under Sec. 145 of the Code, would not be justified. The 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 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. (17). This view was again reiterated by the Honble Supreme Court in Amresh Tiwari vs. Lalta Prasad Dubey (6), where the Honble Supreme Court again made the position clear by observing that there is no bar in law that in every case where civil suit is filed, proceedings u/S. 145 Cr.P.C. would not lie. It is only in a case where civil suit is filed for possession or for declaration of title in respect of same property and where reliefs regarding protection of the property can be applied for and granted by Civil Court that proceedings u/S. 145 Cr.P.C. should not be allowed to continue. (18). The proposition of law which is emerged can be summarised in the following manner:- 1. That there is no bar in the law that in every case where civil suit is filed proceedings u/S. 145 Cr.P.C. would not lie. 2. That it is only in a case where civil suit is filed for possession or for declaration of title in respect of same property and where reliefs regarding protection of the property can be applied for and granted by civil court, in such situation, proceedings under Sec. 145 Cr.P.C. should not be allowed to continue. 3. That in other words, it can be said that once a matter regarding possession has been adjudicated by the civil court between the parties, the proceedings u/S. 145 Cr.P.C. will no more be competent, on such adjudication being made, even by way of interlocutory order, the proceedings u/S. 145 Cr.P.C. will have to be dropped and the matter regarding possession will be governed by the directions of the civil court. (19). Keeping the above legal position in mind, the facts of the present case are being examined. (20). (19). Keeping the above legal position in mind, the facts of the present case are being examined. (20). In the present case, the application for temporary injunction filed by the wife of the party no. 1 was rejected by the Civil Court holding that she was not found in possession of the property in dispute. Similar is the view expressed by the learned Sub Divisional Magistrate in his order dated 27.12.1999 where he has come to the conclusion that possession over the land in dispute was of party no. 2 and not of party no. 1. Therefore, if appeal against the order rejecting application for temporary injunction filed by wife of party no. 1 is pending before this Court, it would give no right to party no. 1. (21). In view of the above, if the proceedings u/S. 145 Cr.P.C. have been dropped and order of attachment of property in question was withdrawn by the learned Sub Divisional Magistrate vide his order dated 27.12.1999, the learned Sub Divisional Magistrate has not committed any illegality or irregularity in passing that order. Similarly, the order dated 28.7.2000 passed by the learned Additional Session Judge by which he confirmed the order passed by the Sub Divisional Magistrate dated 27.12.1999 does not suffer from any infirmity or illegality. The orders of both the courts below cannot be termed as grossly erroneous nor it can be said that they are based on no evidence or that material evidence of the parties was not considered by them. Therefore, it can easily be said that judicial discretion was rightly exercised by both the courts below and, therefore, in these circumstances, no interference is called for with the impugned orders in exercise of inherent power u/S. 482 Cr.P.C. (22). The argument that order dated 27.12.1999 passed by the learned SDM suffers from this illegality that the date in the criminal proceedings u/S. 145 Cr.P.C. was 10.1.2000 and order dated 27.12.1999 was passed in his absence, cannot be appreciated in view of the fact that in the impugned order dated 27.12.1999, there is a clear mention of the fact that counsel for party no. 1 and party no. 2 were present and they were heard also. This argument was rightly rejected by the learned Addl. Sessions Judge through his order dated 28.7.2000. From this point of view also, orders passed by the learned SDM and the learned Addl. 1 and party no. 2 were present and they were heard also. This argument was rightly rejected by the learned Addl. Sessions Judge through his order dated 28.7.2000. From this point of view also, orders passed by the learned SDM and the learned Addl. Sessions Judge cannot be called in question. (23). For the reasons stated above, this petition under section 482 Cr.P.C. has no force and the same is liable to be dismissed and accordingly, it is dismissed.