At, High Court of Himachal Pradesh
By, THE HONOURABLE MR. JUSTICE D.B. LAL
For the Appearing Parties: ------
(1.) THIS is a petition under Section 482 of the Criminal Procedure Code and is directed against the order of the Magistrate presumably under Section 146 of that Code in a proceeding under Section 145 whereby a plot of land has been attached and a Receiver appointed for the standing crop of potato and wheat. The dispute arises in this way. Durga Singh and five others were complainants under Section 145 and they stated that they were tenants from one Sudhuru widow of Daulat Ram over land comprising 51 bigihas. 16 biswas situate in Chak Koti, Tehsil Theog. According to them they had sown wheat and potato crop on this land. Pritam and Tulsi Ram present petitioners were stated to be usurping their possession and as such there was apprehension of breach of peace. The usual police enquiry was made and the learned Magistrate having been sa
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isfied that a dispute likely to cause a breach of the peace existed concerning the aforesaid land, made the preliminary order on 17th May, 1975. Thereafter on 20th May, 1975 the learned Magistrate, presumably acting under Section 146, found that a case of emergency was made out and therefore he was unable to satisfy himself as to which of the parties was in possession and attached the subject- matter of dispute until a competent Court had determined the rights of the parties. Under Section 146 (2) a Receiver was also appointed. Pritam and Tulsi Ram have felt aggrieved against these two orders, and have preferred the present petition upon allegation than no enquiry whatsoever was made by the Magistrate and there was no imminent danger of the breach of the peace. Hence according to them no preliminary order could be made under Section 145 (1). It is also stated that Pritam and Tulsi Ram pot the land under a gift from Sudhuru and they were in possession- Durga Singh and others complainants even filed a civil suit in the Court of the Subordinate Judge, Theog against them in respect of this very land. In that suit they failed to obtain an interim injunction. They filed a complaint under Section 145 and obtained the attachment order and also the order of the appointment of Receiver. According to petitioners the civil suit being pending, the Criminal Court had no jurisdiction to Proceed under Section 145 or 146 and the learned Magistrate has illegally exercised a jurisdiction. On these assertions the inherent powers of this Court are being invoked and interference is being solicited under Section 482 of the Code of Criminal Procedure.(2.) THE contention of the respondents is that the Magistrate was fully justified to make an order under Sec-ion 145 (1) and a subsequent order under Section 146. The preliminary order prima facie indicated that the learned Magistrate considered the jamabandi entries as well as the affidavits submitted by the parties. He was clearly of opinion that a dispute likely to cause breach of the peace existed and therefore the preliminary order was made out. Similarly under Section 146 he had the jurisdiction to attach the land and to appoint a receiver. It was wrong to state that Durga Singh and others could not get the interim in-junction in the civil suit. Rather they did not press their application because the Magistrate had already attached the land and appointed a Receiver. This is so clear from the order of the Subordinate Judge, According to respondents, the mere fact that a civil suit was filed did not oust the jurisdiction of the Magistrate, especially when there was apprehenson of the breach of the peace and Sections 145 and 146 were attracted. It was also argued in ultimate analysis that even if the order of the Magistrate was wrong it could not be corrected by the application of Section 282 because it was not a case of illegal assumption of jurisdiction but could be considered a case of wrongful exercise of jurisdiction although the respondents did not accept even that contention.(3.) AS regards the documentary evidence, the jamabandi entries of 1972-73 on which reliance was placed by the petitioners did not show their possession. Rather the possession was shown to be of Sudhuru, and the respondents Durga Singh and others, claimed to be tenants from Sudhuru. Therefore, the jamabandi entries did not support the case of the present petitioners. The preliminary order, prima facie indicated the information received by the Magistrate, the assessment made by him regarding such information, and the inference drawn that a dispute likely to cause a breach of the peace existed concerning the land- As. such the preliminary order dated 17th May, 1975 was prima facie a legal and correct order. The order dated 20th May, 1975, although made under Section 145 yet was really made under Section 146 because under Section 145 no attachment can be ordered, nor can a receiver be appointed. . The Magistrate under Sub-section (8) of that Section can only make an order to safeguard speedy and natural decay of the produce of the property. In the present case a Recei (4.) THE central Question that arose for determination was : Whether pending the civil suit the Magistrate had the jurisdiction to make the Preliminary order under Section 145 (1). or the order of attachment or appointment of Receiver under Section 146. There are two Division Bench cases of this Court on this point; Ram Lai v. State, (1 Sim LJ 1971 (Him Pra 58) and Reference No. 63 of 1969. (Koni Ram v. Rattan Dass) referred to in para. 32 of the Judgment pronounced in Ram Lai v. State (supra). The view of this Court has been that existence of an apprehension of a breach of the peace is the foundation of the jurisdiction to act under Section 145 and the legality of the preventive proceedings under Section 145 is not affected by the pendency of a civil suit. There may be a case in which a suitable order is already passed in a civil suit so that proceeding under Section 145 may not be called for in those circumstances. There can be no conflict between an order passed by a Criminal Court and the order to be passed by the Civil Court- Indeed, the order passed by the Criminal Court will be overridden and will exhaust itself as soon as there is an appropriate decision by the Civil Court. As such care and caution is required by the Criminal Court while passing an order under Section 145 when a civil suit is pending At the same time the jurisdiction of the Criminal Court under Section 145 is not ousted in each and every case. If the Magistrate considers that there is an apprehenson of the breach of the peace, an order- under Section 146 can easily be passed and the Criminal Court has to wait for the decision on the Civil Court and the order made under Section 146 will always be subject to the decision of the Civil Court. The view which has received support by this Court, was also adhered to by the Allahabad High Court in Kalap Din v. State, (1970 All LJ 873) that was again a Division Bench case and the decision was given a similar effect. Therefore, there can be no manner of doubt that the Magistrate had the jurisdiction under Sections 145 and 146, and the mere fact that the civil suit was pending did not oust that jurisdiction. In fact the order of attachment or the order appointing the Receiver was subject to the decision in the civil suit. No further proceeding need be taken under Section 145 and perhaps the Magistrate will make an order to that effect. At any rate, the two orders impugned in this petition cannot be set aside on any such ground.(5.) THE interference of High Court under Section 482 of which the previous equivalent was 561-A has been explained by the learned Judges in R- P. Kapur v. Stale of Punjab AIR I960 SC 866 : 1960 Cri LJ 1239). The tests laid down therein are not satisfied in the present case. It cannot be said that there was any legal bar for the Magistrate to have instituted the proceeding. Nor can it be stated that the evidence was either nonexistent or was contra-indicative for the two impugned orders. The utmost that could be inferred was that the Magistrate took a wrong decision. That will not prompt the Court to invoke inherent Dowers under Section 482 on the Code of 1973 or 561-A of the Code of 1898.(6.) IN this view of the matter, the two orders made by the learned Magistrate cannot be considered to be an abuse in the process of the Court. No interfer- ence can be made under Section 482. and hence the petition is rejected.
"1976 CrLJ 91"