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2008 DIGILAW 879 (PNJ)

Harbhajan Singh v. State of Punjab

2008-04-10

H.S.BHALLA

body2008
JUDGMENT H.S. Bhalla, J. - The petitioner has knocked at the door of this court by filing this petition under Section 482 of the Code of Criminal Procedure praying for quashment of a composite order dated 7.5.2007 (Annexure P-2) passed by Sub Divisional Magistrate, Batala, under Sections 145 and 146(1) of the Code of Criminal Procedure. 2. Learned counsel appearing for the petitioner has vehemently contended that the order passed under Sections 145 and 146(1) of the Code of Criminal Procedure is illegal and against the spirit of Section 145 of the Code of Criminal Procedure since the learned Sub Divisional Magistrate was duty bound to give an opportunity to the parties to adduce their evidence or make their claim in respect of the fact of actual possession of the subject-matter. Learned counsel has further contended that the learned Sub Divisional Magistrate, while passing the impugned order dated 7.5.2007, though has given a chance to the parties to appear before him on 10.5.2007 and to present their respective claims, but he could not have passed orders under Section 146(1) of the Code of Criminal Procedure on the same date except in the cases of emergency, whereas the impugned order and the circumstances do not disclose any emergency in the matter. Learned counsel has further brought to the notice of this Court that since the petitioner was never given any opportunity to prove before the learned Sub Divisional Magistrate as to his possession of the land, which is clearly supported by the report of the Naib Tehsildar dated 19.1.2004 and also by both the orders of the learned Sub Divisional Magistrates dated 30.1.1995 (Annexure P-3) and 26.4.2004 (Annexure P-5) and therefore, the orders passed by the learned Sub Divisional Magistrate are arbitrary, illegal and are liable to be set aside. 3. In the written statement filed by the respondents, it has been specifically pleaded therein that a complaint from Palwinder Singh son of Piara Singh, resident of village Bhoja was received from the officer of Senior Superintendent of Police, Batala for inquiry and report. It has been alleged by the complainant that he is in possession of land measuring 11 kanals in khasra Nos. 12/22/1 and 20/2 wherein wheat crop had been sown. Makhan Singh son of Mella Singh and his son Sarabjit Singh are not allowing him to cut the crop of wheat. It has been alleged by the complainant that he is in possession of land measuring 11 kanals in khasra Nos. 12/22/1 and 20/2 wherein wheat crop had been sown. Makhan Singh son of Mella Singh and his son Sarabjit Singh are not allowing him to cut the crop of wheat. It has been further averred in the written statement that Sub Inspector/Station Officer Makhan Singh of Police Station Ghuman had reached the place of occurrence for inquiring into the matter and during the inquiry, it was revealed that both the parties were arguing about the possession of the land and as such there existed a dispute over the possession of the land and that there was apprehension of breach of peace between the parties and a request was made to the learned Sub Divisional Magistrate, Batala to proceed under the provisions of Section 145 of the Code of Criminal Procedure. It has been further pleaded in the written statement that respondent No. 3 has also got registered FIR No. 33 dated 4.5.2007 against the petitioner and his family members under Sections 379/447/506/148 and 149 of the Indian Penal Code. This case was registered on the complaint of Gurmeet Singh son of Makhan Singh, resident of Bhoje alleging therein that wheat crop sown by them has been harvested and taken away by the accused. 4. Having heard learned counsel for the parties and going through the record of the case, I am of the considered view that this petition has got no merit and the same is liable to be dismissed for the reasons to be recorded hereinafter. 5. The entire case of both the parties revolves around the impugned order dated 7.5.2007 passed by Sub Divisional Magistrate and in order to arrive at a just conclusion, it is necessary to reproduce the relevant portion of this order, which runs as under:- "Keeping in view the urgency of the matter, the land is also attached under Section 146(1) Code of Criminal Procedure and Naib Tehsildar, Sirihargobindpur is appointed receiver to look after the same. The receiver shall immediately take possession of the suit land and manage it till further orders of this court." 6. The order, as quoted above, clearly spells out that the Sub Divisional Magistrate passed a composite order under Sections 145 and 146(1) of the Code of Criminal Procedure. The receiver shall immediately take possession of the suit land and manage it till further orders of this court." 6. The order, as quoted above, clearly spells out that the Sub Divisional Magistrate passed a composite order under Sections 145 and 146(1) of the Code of Criminal Procedure. It is well settled law that before passing such an order, the Magistrate is required to record a satisfaction that there is apprehension of breach of peace between the parties and then pass an order under Section 146(1) of the Code of Criminal Procedure. Meaning thereby that, the Magistrate, at the first instance, is to record his satisfaction with regard to apprehension of breach of peace and once the Magistrate is satisfied that the dispute likely to cause a breach of peace exists and there is adequate material before him to find out that the case is clearly one of emergency needing urgent redress by way of attachment and the appointment of a Receiver, and then in that event he can pass an order for appointment of a receiver under Section 146(1) of the Code of Criminal Procedure. In other words, in an urgent situation calling for an immediate action, the Magistrate is competent to pass a composite order under Sections 145(1) and 146(1) of the Code of Criminal Procedure. In the instant case, I find that on the basis of the statement of Makhan Singh, Station House Officer and also considering the version given by him in a Kalendera and in order to avoid any untoward incident, the Magistrate initiated action under Section 145(1) of the Code of Criminal Procedure with regard to the suit land and restrained both the parties from entering or interfering in the land in question and keeping in view the urgency of the matter, the land was also attached under Section 146(1) of the Code of Criminal Procedure and a Naib Tehsildar was appointed as a receiver to look after the same. The order passed by the Magistrate further spells out that both the parties were called upon to appear before him with a view to present their respective claims with regard to possession of the suit land. In such like circumstances, I find no illegality or impropriety in the impugned order dated 7.5.2007 passed by the Sub Divisional Magistrate warranting interference by this Court. 7. In such like circumstances, I find no illegality or impropriety in the impugned order dated 7.5.2007 passed by the Sub Divisional Magistrate warranting interference by this Court. 7. In the light of what has been discussed above, I am of the view that the impugned order dated 7.5.2007 passed by the Sub-Divisional Magistrate suffers with no infirmity and as such the petition filed by the petitioner, being without any merit, fails and is hereby dismissed. However, the Magistrate is directed to dispose of the matter, within a period of three months after the parties put in appearance before him on the date fixed by this court. Parties are directed to appear before the Sub Divisional Magistrate, Batala on 13.5.2008. Petition dismissed.