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2002 DIGILAW 548 (PNJ)

Madan Lal v. State Of Punjab

2002-05-16

ASHUTOSH MOHUNTA

body2002
Judgment Ashutosh Mohunta, J. 1. The present petition under Section 482 of the Code of Criminal Procedure has been filed for quashing the proceedings under Section 145 of the Code of Criminal Procedure pending before the Sub Divisional Magistrate, Moga which were initiated on the basis of a Kalandra dated 19.10.1994. 2. Briefly, the facts are that the petitioner and respondent No. 2 are real brothers being sons of Jagir Chand. There is a chunk of land upon which both the brothers are co-sharers although the petitioner claims that he is in exclusive possession of the same. Fearing that the petitioner might be dispossessed from the said land, he filed a suit for permanent injunction before the Sub Judge, Moga praying therein that the defendant (respondent No. 2 in this case) be restrained from interfering and dispossessing him from the land in dispute. Vide order dated 5.5.1993, the Sub Judge, Moga, vide Annexure P1, ordered that the defendants are restrained from dispossessing the plaintiff from the suit land till 28.5.1993 except in due course of law. Against the order of the Sub Judge, Moga, Annexure P1, defendant Gujjar Mal filed an appeal before the Additional District Judge, Faridkot who vide his order dated 13.12.1993, Annexure P3, dismissed the appeal and confirmed the ad-interim injunction granted in favour of the petitioner. 3. Respondent No. 2 filed a complaint at Police Station Badhni Kalan stating therein that he had a joint khata of land with the petitioner and claimed possession over the suit land. On the basis of this complaint, the police submitted a Kalandra under Section 145 of the Code of Criminal Procedure dated 19.10.1994 stating that there is apprehension of breach of peace and consequently, the land be attached. 4. The Sub Divisional Magistrate, Moga passed an order and summoned both the parties to appear before him vide order dated 14.12.1994, Annexure P5. This is how the present petition for quashing the proceedings under Section 145 of Code of Criminal Procedure has been filed. 5. Learned counsel for the petitioner has argued that the petitioner and respondent No. 2 were co-sharers and as such, proceedings under Section 145 of the Code of Criminal Procedure are not competent. This is how the present petition for quashing the proceedings under Section 145 of Code of Criminal Procedure has been filed. 5. Learned counsel for the petitioner has argued that the petitioner and respondent No. 2 were co-sharers and as such, proceedings under Section 145 of the Code of Criminal Procedure are not competent. He has further argued that once the Civil Court has granted an injunction in favour of the petitioner, therefore, proceedings under Section 145 of the Code of Criminal Procedure could not have been initiated. He has relied upon a judgment of Delhi High Court in the case of Dalbir Singh v. State (NCT of Delhi), 2001(4) RCR(Criminal) 831. 6. Mr. Bedi, learned AAG appearing for the State has controverted the arguments raised by Mr. Hooda. He submits that the proceedings under Section 145 of the Code of Criminal Procedure were rightly initiated on the basis of the report of the S.H.O., Police Station Badhni Kalan and only a notice has been sent to the parties to appear before the Sub Divisional Magistrate. 7. Mr. Bedi states that a perusal of the Kalandra clearly shows that the Sub Divisional Magistrate was prima facie convinced that there was apprehension of breach of peace. 8. I have considered the rival submissions of both the sides and am of the considered view that since the Civil Court is seized of the matter and has granted ad-interim injunction in favour of the petitioner vide which the respondents were restrained from interfering in the peaceful possession of the petitioner, then in that eventuality, the proceedings under Section 145 of the Code of Criminal Procedure could not be initiated. In the present case, ad-interim injunction had been granted by the Sub Judge, Moga which was subsequently confirmed by the Additional District Judge, Moga and, therefore, proceedings under Section 145 of the Code of Criminal Procedure could not have initiated by the Sub Divisional Magistrate, Moga. In the case of Sardari Lal v. State of Punjab, 1980 Crl.L.J. 1151 it has been held that a Criminal Court should not invoke its jurisdiction when question of possession is being examined by the Civil Court and the parties are in a position to approach the Civil Court for orders such as injunction or appointment of receiver. Thus, the order passed by the Sub Divisional Magistrate, Moga, Annexure P5, is unsustainable in law. 9. Thus, the order passed by the Sub Divisional Magistrate, Moga, Annexure P5, is unsustainable in law. 9. Apart from the above, as has been noted earlier both the petitioner as well as respondent No. 2, are real brothers. They were co-sharers over the land in dispute. This position is admitted by both the parties. It has been held in Nahar Singh v. State of Punjab, 2000(3) RCR(Criminal) 425 as under : "Under the garb of Section 145 Cr.P.C., a tenant in common or a co- sharer should not approach the police authorities to take preventive action as it tantamounts to depriving a co-sharer/tenant in common of his right to enjoy the possession which he is otherwise legally entitled to." In Chand Rattan & Others v. Shan Rattan & Others, 1989(2) CLR 629, it has been held that where the property in dispute is in joint possession of the parties, the proceedings under Section 145 Cr.P.C. in respect of that property are not maintainable. In view of the above findings, I allow the petition and quash the proceedings under Section 145 of the Code of Criminal Procedure initiated on the basis of the Kalandra dated 19.10.1994, Annexure P4. Petition allowed.