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2009 DIGILAW 216 (DEL)

JAGDISH GANDHI v. STATE

2009-02-18

MOOL CHAND GARG

body2009
MOOL CHAND GARG, J. 1. In this case an order was passed by this Court in the aforesaid revision petition on 03.10.2008 where the following directions were given: 17. Having considered the entire conspectus of the revision petition, I set aside the order of learned SDM dated 18.05.2007, delivering the possession of the Shop No. 64 to the respondent No. 2 along and direct that the possession of the respective portions of the shop would be forthwith restored to the petitioners temporarily unless evicted in due course of law and directing the petitioners also that the petitioners would deliver peaceful and vacant possession of the premises as and when required by the civil Court in the proceedings pending before it. 2. The petitioner has not been given the possession of the property despite that even though the matter went upto the Hon?ble Supreme Court where the aforesaid order has been upheld. 3. Since the order dated 03.10.2008 was not being complied with by respondent No.2 despite it being upheld by the Apex Court, the petitioners filed a contempt petition which is pending before another learned Judge of this Court. They also filed the application subject matter of this order to seek directions against the respondents to comply with the order dated 03.10.2008 forthwith. A reply has been filed by respondent No.2 opposing such a request. It is a matter of record that till such time the order of this Court was upheld by the Supreme Court no civil proceedings were initiated by respondent No.2 in respect of the possession of the disputed property. 4. Today with a view to find out the status of the possession about the compliance of the order the State was asked to summon the SHO of the concerned area to remain present and to inform to this Court as to what is the status of the compliance of the order for which the petitioner moved the aforesaid application. The standing counsel under instructions from SHO who is also present in Court informs that the copy of the order dated 03.10.2008 has been received by him from the SDM only on 09.02.2009 and, therefore, till today the order has not been complied with. It was also informed that the contempt petition filed by the petitioner is listed for 21.07.2009. The standing counsel under instructions from SHO who is also present in Court informs that the copy of the order dated 03.10.2008 has been received by him from the SDM only on 09.02.2009 and, therefore, till today the order has not been complied with. It was also informed that the contempt petition filed by the petitioner is listed for 21.07.2009. However it was submitted that the State would take necessary steps to comply with the orders passed by this Court. 5. The petitioner, however, submits that in view of the order of this Court having already become final there is no reason for the respondents to sit over the same and not to comply with it. Thus they have sought for a direction of this Court by moving an application under Section 482 Cr.P.C. (Crl.M.A.12629/2009) seeking the following prayers: PRAYER Therefore, it is most humbly prayed that this Hon?ble Court may kindly be pleased to pass a direction to the SHO, Sarojini Nagar to execute the order of this Hon?ble Court dated 03.10.2008 by enabling a peaceful hand over the possession of the shop No. 64 of Sarojini Nagar Market to the petitioners herein. 6. They have relied upon a judgment delivered by a Division Bench of this Court in the case of Mukesh Vs. State in Criminal Appeal 186/1992 on 01.08.2008 where it has been held: 5. Last, but not the least in our appreciation of the law, Section 482 of the CrPC stands in solitary splendour. It saves the inherent power of the High Court. It enunciates that nothing in the CrPC shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary firstly to (a) "give effect to any order under the CrPC", words which are not to be found in the Code of Civil Procedure, 1908 ("CPC"). While exercising inherent powers, therefore, the High Court, in its criminal jurisdiction, can take all necessary steps for compliance of its orders. The High Court need not, therefore, resort to the tenets of Contempt of Court. Section 482, therefore, makes the Criminal Court much more powerful than the Civil Court so far as obedience to orders is concerned. While exercising inherent powers, therefore, the High Court, in its criminal jurisdiction, can take all necessary steps for compliance of its orders. The High Court need not, therefore, resort to the tenets of Contempt of Court. Section 482, therefore, makes the Criminal Court much more powerful than the Civil Court so far as obedience to orders is concerned. Secondly, Section 482 clarifies that the CrPC does not circumscribe the actions available to the High Court to prevent abuse of its process from the beginning of its proceedings till their very end. Judicial process includes compelling a respondent to appear before it. When the Court is faced with a recalcitrant appellant/convict who shows no interest in his appeal, none of the Section in Chapter-XXIX of the CrPC dealing with appeals would preclude it from dismissing the appeals. Whenever such orders are passed, it would have the effect of making it clear to all concerned that intentional and repeated failure to prosecute the appeal would inexorably lead not merely to the cancellation of bail but to the confirmation of the conviction and sentence because of the dismissal of the appeal. Thirdly, none of the provisions of the CrPC can possibly limit the power of the High Court to otherwise secure the ends of justice. It is not possible to define the concept of "justice" Suffice it to say that it encompasses not just rights of the accused and the convict. It also includes law abiding section of society who look towards the Courts as vital instruments for preservation of peace and curtailment of crime by means of imposing punishment on those who break the law. If convicts can circumvent the rigors of their conviction, peace and harmony in society will become an illusion. Section 482 emblazons the fact that there is a difference between preventing the abuse of the jural process and the securing of the ends of justice. In our analysis, Section 482 of the CrPC has not been given its due regard and importance, and as a consequence, the rampant practice of filing appeals only for frustrating a sentence given by a criminal court has been fine- tuned. In our analysis, Section 482 of the CrPC has not been given its due regard and importance, and as a consequence, the rampant practice of filing appeals only for frustrating a sentence given by a criminal court has been fine- tuned. It has led not merely to an explosion of dockets in criminal courts, already afflicted by an adverse ratio of judges to the population, but has given fillip to the filing of appeals by convicts whose objective is not of convincing the Appellate Court that they have been dealt with unfairly or illegally, but to escape from the punishment that their crime has invited. 7. The learned counsel appearing for the second respondent submits that once final order was passed by this Court, this Court becomes functous-officio and cannot issue any further directions in view of the provisions contained under Section 362 Cr.P.C because any further directions, tantamount to review of the order, which reads as under: 362. Court not to alter judgment.- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. 8. It is also submitted that after the matter had been decided by the Hon?ble Supreme Court the second respondent also filed a civil suit which is pending disposal before this Court where respondent No.2 has sought a declaration that the subject property was partitioned between the parties by way of a verbal partition. It is submitted that in this case proceedings under Section 145 Cr.P.C. ought not to have been initiated and therefore, the order passed by this Court dated 03.10.2008 in Crl. Rev. P.383/2007 should not be implemented and, therefore, the petitioner is not entitled to take back the possession. However, the learned counsel fairly concedes that no interim orders have been passed in the civil suit till today which is listed on 09.02.2009 & states that a notice has been issued to the petitioner. 9. The counsel has relied upon the following judgments i.e. (i) AIR 1994 SC 1436 cited as P.C. Sachdeva Vs. State and (ii) AIR1988 SC 1973 cited as Jhunamal Vs. 9. The counsel has relied upon the following judgments i.e. (i) AIR 1994 SC 1436 cited as P.C. Sachdeva Vs. State and (ii) AIR1988 SC 1973 cited as Jhunamal Vs. State of M.P. in support of his contentions that in the present case proceedings under Section 145 should not have been initiated and, therefore, no direction can be given by this Court in the light of the controversy involved in the matter. It is thus prayed that, the application filed by the petitioner be dismissed. 10. On the other hand the counsel appearing for the petitioner submits that none of the judgment cited by the second respondents are applicable in this case. It has been submitted that the pleas taken by respondent No.2 are misconceived. It is submitted that once the matter reached up to the Apex Court and the order of this Court dated 03.10.2008 was upheld, more so when no civil proceedings were initiated till the order became final at the level of the Apex Court, the submissions of the learned counsel for the respondent no. 2 have no legs to stand. It is also submitted that the inherent powers of this Court can be invoked even for seeking compliance of the directions of this Court in view of the provisions contained in the said Section which for the sake for reference is reproduced: 482. Saving of inherent power of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 11. Reliance has been placed upon the judgment in the case of Mukesh Vs. State(Supra). 12. I have perused the judgments cited by the second respondent. In so far as the first judgment (P.C.Sachdeva?s case) is concerned, the said judgment was given only because a civil suit was pending when the proceedings under Section 145 were initiated. The relevant observations are reproduced here under: 3. True, a suit or remedy in civil Court for possession or injunction normally prevents a person from invoking jurisdiction of the criminal Court as observed by this Court in Ram Sumer Puri Mahant Vs. The relevant observations are reproduced here under: 3. True, a suit or remedy in civil Court for possession or injunction normally prevents a person from invoking jurisdiction of the criminal Court as observed by this Court in Ram Sumer Puri Mahant Vs. State of U.P., AIR 1985 SC 472 , „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. The normal rule is as stated by the Court in Puri?s case. But that was a suit based on title. And that could be decided by civil Court only. That ratio cannot apply where there is no dispute about title. When claim or title are not in dispute and the parties on their own showing are co-owners and there is no partition one cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right to possession but on the question of possession the Magistrate is empowered to take cognizance under Section 145, Cr.P.C. Neither the High Court nor the sub-Divisional Magistrate cared to ascertain if the respondent had any claim to lawfully prevent the appellant from entering into his own house. The proceedings under Section 107 are for public peace and tranquility whereas under S.145 relates to disputes regarding possession between parties concerning any land or water or boundaries thereof. Therefore, dropping of proceedings under S.107 could not furnish foundation for dropping the proceedings under S.145. The proceedings under Section 107 are for public peace and tranquility whereas under S.145 relates to disputes regarding possession between parties concerning any land or water or boundaries thereof. Therefore, dropping of proceedings under S.107 could not furnish foundation for dropping the proceedings under S.145. Nor the law laid down in Puri?s case could result in rejecting the application filed under Section 145 of the Cr.P.C. There being no dispute of title between the appellant and respondent the only claim to be decided was if the appellant had been forcibly or wrongly dispossessed within two months next before the date on which the information was received by the Magistrate and the High Court instead of deciding this crucial aspect, failed to exercise its jurisdiction as the appellant had sought the remedy in civil suit without applying the mind if that decision was in any way helpful for dropping the proceedings. In law, therefore, the order passed by two Courts below cannot be maintained. 13. In the second judgment the Apex Court made following observations: 7. We fail to understand how the High Court in this case took advantage of the decision of this Court in Ram Sumer?s case. The ratio of the said decision is that a party should not be permitted to litigate before the criminal Court when the civil suit is pending in respect of the same subject matter. That does not mean that a concluded order under S.145, Cr.P.C. made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the civil Court. An order made under S.145, Cr.P.C. deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil Court. The unsuccessful party therefore must get relief only in the civil Court. He may move the civil court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil Court has jurisdiction to give a finding different from that which the Magistrate has reached. 14. This judgment supports the case of the petitioner, as the civil proceedings have been filed by the respondent no. 2 only after the conclusion of the proceedings under Section 145 Cr.P.C. 15. The civil Court has jurisdiction to give a finding different from that which the Magistrate has reached. 14. This judgment supports the case of the petitioner, as the civil proceedings have been filed by the respondent no. 2 only after the conclusion of the proceedings under Section 145 Cr.P.C. 15. Moreover by the present application the petitioner is not seeking review of the order dated 03.10.2008 but only wants implementation of the order dated 03.10.2008 which power as observed by a Division Bench of this Court in Mukesh Vs. State (Supra) are very much available with this Court. Thus, the aforesaid judgment does not come to the rescue of respondent No.2. Counsel appearing for the second respondent also brought to my notice a judgment of the Hon?ble Supreme Court delivered in the case of Smt. Sooraj Devi Vs. Pyare Lal and Anr. AIR 1981 SC 736 wherein it is stated: 5. The appellant points out that he invoked the inherent power of the High Court saved by Section 482 of the Code and that notwithstanding the prohibition imposed by Section 362 the High Court had power to grant relief. Now it is well settled that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. Sankatha Singh Vs. State of U.P. AIR 1962 SC 1208 . It is true that the prohibition in Section 362 against the Court altering or reviewing its judgment is subject to what is “otherwise provided by this Code or by any other law for the time being in force”. Those words, however, refer to those provisions only where the Court has been expressly authorized by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 and therefore the attempt to invoke that power can be of no avail. 16. Those words, however, refer to those provisions only where the Court has been expressly authorized by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 and therefore the attempt to invoke that power can be of no avail. 16. However, this judgment also has no application to this case, admittedly, till the order dated 03.10.2008 was passed and it was upheld by the Apex Court, no civil suit was pending between the parties and a challan under Section 145 Cr.P.C. was referred by the concerned SHO on account of a dispute which arose between the parties for possession of the subject property and where there was apprehension of breach of peace and the title of the suit property was not clear and in fact both sides were claiming possession of the subject property and it was in these circumstances proceedings were initiated under Section 145 Cr.P.C. which has resulted in a final order by the Hon?ble Supreme Court whereby the order passed by this Court have been confirmed the said order cannot be assailed by the second respondent by filing reply as is sought to be done by him. The order having become final and there being no stay for implementation of the same has to be complied with. Thus the prayer made by the petitioner for appropriate directions to the authorities to comply with the order is neither seeking review of the order nor does it calls for writing a fresh judgment but is only to exercise the inherent powers of this Court as are available under Section 482 Cr.P.C. as aforesaid to give effect to the orders of this Court. 17. In so far as the filing of the civil suit subsequently that will meet its own fate and in case tomorrow the Civil Court comes to a conclusion that it is respondent No.2 who is entitled to the possession of the property then the possession which has to be handed over to the petitioner pursuant to the orders of this Court dated 03.10.2008 can be reverted back in favour of respondent No.2 if such a finding is returned in the Civil proceedings. In this regard no further comments are required to be made by this Court. In this regard no further comments are required to be made by this Court. This is also view expressed in Jhunamal‘s case (Supra) relied upon by the respondent no. 2. 18. The only point which needs consideration is as to whether any proceeding where an order has been passed by this Court and on account of non-implementation thereof, the petitioner has already initiated contempt proceedings whether this Court is required to give any further directions or as to whether such directions comes within the purview of Section 362 Cr.P.C. or that there are any other provisions available in the Court where such directions can be issued. Standing counsel appearing for the State submits that since the copy of the order has been received by the SHO the orders will be complied with in accordance with law. 19. I may also observe that the directions sought for by the petitioner does not come within the purview of Section 362 of the Cr.P.C. but come within the purview of Section 482 Cr.P.C. by giving effect to its own order by this Court. Insofar as the contempt proceedings are concerned they have been initiated by the petitioner to punish those who are violating the order dated 03.10.2008 upheld by the Supreme Court willfully and, thus, may have made themselves guilty of committing contempt of this Court and are liable to be punished. This is an independent action which is available to the petitioner. However, that power does not take away powers vested in this Court under Section 482 Cr.P.C. to seek implementation of its own orders and is to be expressed independently. 20. In view of the aforesaid, the prayer made by the petitioner in his application seeking direction to the respondents/State to implement the orders passed by this Court dated 03.10.2008 passed in Crl. Rev.P.383/2007 is allowed. The respondent no. 1 will ensure compliance of the orders passed by this Court without any further delay. The application is disposed of accordingly.