Criminal Misc. No.2412-M of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No.2412-M of 2006 Date of Decision: February 05, 2008 Zoravar Singh .....Petitioner Vs. State of Punjab and others .....Respondents CORAM:- HON'BLE MR. JUSTICE RAJESH BINDAL Present:- Mr. Arvind Kashyap, Advocate for the petitioner. Mr. Anter Singh Brar, DAG, Punjab for respondent No.1. Ms. J.K.Gurna, Advocate for respondents No.2 to 4. **** RAJESH BINDAL, J. 1. The petitioner has prayed for quashing of order dated 25.2.2005 (Annexure P-3) passed by the Sub Divisional Magistrate, Khamanon in proceedings under Section 145 Cr.P.C and further the order dated 23.8.2005 (Annexure P-5) passed by the learned Additional Sessions Judge, Fatehgarh Sahib whereby the revision filed by him was dismissed. 2. The only short issue raised by learned counsel for the petitioner is that the civil suit regarding the property in dispute was already pending before the Civil Courts and during the pendency thereof, the present proceedings under Section 145 Cr.P.C were initiated which according to him, in terms of settled position of law, could not be initiated. Referring to the material on record, he submitted that on 17.5.2001, Jit Singh son of Deva Singh and Chanan Singh son of Asha Singh filed suit for permanent injunction restraining the petitioner and respondent No.7 from dispossessing them from the suit land which included the small portion of land bearing Khewat No.13, Khatoni No.35, Khasra No.43//3/1 (2-10). The proceedings under Section 145 Cr.P.C were initiated only with regard to this small portion of land. In the civil suit filed by Jit Singh and another, the learned trial Court vide order dated 6.9.2002 in application under Order 39 Rules 1 and 2 CPC restrained the defendants in the suit from dispossessing the plaintiffs therein from the suit land. However, in appeal by the petitioner Criminal Misc. No.2412-M of 2006 -2- and respondent No.7 against the order passed by the trial Court in application under Order 39 Rules 1 and 2 CPC, the parties were directed to maintain status quo with regard to possession of Khasra No.43//3/1 (2-10). It is stated that the civil suit is still pending. Further he submitted that in the suit filed by Jit Singh son of Deva Singh and Chanan Singh son of Asha Singh, the claim was that they were co-sharers and in the possession of the suit land. However, on a Kalendra dated 14.3.2003 submitted by the police, proceedings under Section 145 Cr.P.C were initiated on account of dispute of possession of land between the present petitioner and respondent No.7 on one part and Jit Singh and Chanan Singh on the other part. During the proceedings before SDM, the petitioner raised preliminary objection regarding the maintainability of the proceedings in view of pendency of the civil suit. However, still the learned SDM vide order dated 25.2.2005 directed that the respondents having been found in possession of the suit land, the possession thereof should be delivered to them. The petitioner preferred revision against this order. However, before learned Additional Sessions Judge also, the petitioner failed preliminary on the ground that the parties to the civil dispute were different than the parties to the proceedings under Section 145 Cr.P.C. 3. Learned counsel for the petitioner further submits that in fact in the civil suit, the claim was set up by Jit Singh son of Deva Singh and Chanan Singh son of Asha Singh claiming themselves to be owners in possession of the land seeking an injunction from their dispossession whereas in proceedings under Section 145 Cr.P.C., Harwinder Singh son of Hardam Singh, Hardam Singh son of Chanan Singh and Gurdial Singh son of Dewa Singh claimed themselves to be in possession of the land being owners thereof. Referring to the parentage of the parties, learned counsel for the petitioner submitted that the suit was filed by Jit Singh son of Deva Singh and Chanan Singh son of Asha Singh whereas in the proceedings under Section 145 Cr.P.C., the adverse parties were Harwinder Singh son of Hardam Singh, Hardam Singh son of Chanan Singh and Gurdial Singh son of Dewa Singh meaning thereby the parties were son and grandson of Chanan Singh and brother of Jit Singh meaning thereby a family affair. Relying upon a judgment of Hon'ble the Supreme Court in Ram Sumer Puri Mahant v. State of U.P. and others, AIR 1985 SC 472, he submitted Criminal Misc. No.2412-M of 2006 -3- that the proceedings under Section 145 Cr.P.C were not at all maintainable. 4. Controverting the allegations made by the petitioner, learned counsel for the respondents No.2 to 4 submitted that the Courts below have rightly entertained and adjudicated upon in the proceedings under Section 145 Cr.P.C for the reasons that the parties were different. Once there was apprehension of breach of peace, for appointment of receiver and proceeding under Section 145 of the Code, the SDM had the jurisdiction to entertain the dispute. Further, she submitted that the petitioner having already failed in the revision before the learned Additional Sessions Judge, the present petition in the form of quashing under Section 482 Cr.P.C is not maintainable as the same is nothing else but a second revision. She relied upon a judgment of Hon'ble the Supreme Court in Dharampal and others v. Smt. Ramshri and others, 1993(1) RCR (Criminal) 696. 5. In response to the preliminary objection raised by learned counsel for the respondents No.2 to 4 regarding the maintainability of the revision, learned counsel for the petitioner relying upon judgments of Hon'ble the Supreme Court in Inder Mohan Goswami and another v. State of Uttaranchal and others, 2007(4) RCR (Criminal) 548; Madhu Limaye v. The State of Maharashtra, (1977) 4 Supreme Court Cases 551; M/s Pepsi Foods Ltd. v. Special Judicial Magistrate, 1997(4) RCR (Criminal) 761 and a judgment of this Court in Anju Bala and others v. State of Punjab and another, 2006(3) Judicial Reports (Criminal) 91 submitted that once it is found that the proceedings initiated by the authorities below were without jurisdiction, in terms of judgments of Hon'ble the Supreme Court and this Court, the exercise of extra-ordinary jurisdiction of this Court under Section 482 Cr.P.C even against the revisional order is not barred. 6. Having heard learned counsel for the parties and perusing the paper book, I find substance in the contentions raised by learned counsel for the petitioner as noticed above, the parties to the suit and the proceedings under Section 145 Cr.P.C are common, as there is nothing on record to suggest as to in what manner the rights of the plaintiffs to the suit and second party in the proceedings under Section 145 Cr.P.C were different. It is not in dispute that the land in question in the suit and the proceedings under Section 145 Cr.P.C is same, i.e., bearing Khasra No.13, Khatoni Criminal Misc. No.2412-M of 2006 -4- No.35, Khasra No.43//3/1 (2-10). The suit was pending and learned Additional District Judge had already ordered the parties to maintain status- quo regarding possession. Once it is found that the land involved in the civil suit which was filed prior in time and in the proceedings under Section 145 Cr.P.C is same and also that the parties therein are mere family members, in my opinion, it cannot be stated that the proceedings under Section 145 Cr.P.C, would be maintainable as the parties were different. The same opinion were expressed by this Court in Sudershan Singh v. Roshan Singh and others, 2004(4) RCR (Criminal) 372; Sukhdev Singh and another v. Sub-Divisional Magistrate, Sirsa and others, 1997 Criminal Law Journal 1326 and Charan Singh and others v. S.D.M. Jallandhar and others, 1992 Criminal Law Journal 671. In Inder Mohan Goswami’s case (supra), Hon’ble the Supreme Court summed the scope and ambit of powers under Section 482 of the Code of Criminal Procedure in the following terms:- “22. This court in a number of cases has laid down the scope and ambit of courts' powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. Inherent powers under section 482 Cr.P.C., though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.” If the facts of the case are examined in the context of law laid Criminal Misc. No.2412-M of 2006 -5- down by Hon’ble the Supreme Court, it is a fit case where interference of this Court is required as same will result in prevention of abuse of process of Court. Accordingly, for the reasons stated above, the revision petition is accepted and the impugned order dated February 25, 2005 passed by the Sub Divisional Magistrate, Khamanon and order dated August 23, 2005 passed by the learned Additional Sessions Judge, Fatehgarh Sahib are set aside. The petition is disposed of accordingly. February 05, 2008 ( RAJESH BINDAL ) renu/Pka JUDGE