IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 13191-M of 2008 Date of decision: January 27, 2009 Hari Ram and others ….. Petitioners Versus State of Haryana and another ….. Respondents. Present: Dr. Naresh Kaushik, Advocate for the petitioners. *** S.S. SARON, J. This petition under Section 482 of the Code of Criminal Procedure (“CrPC” – for short) has been filed seeking quashing of the complaint dated 24.4.2007 (Annexure P1), the ‘Kalandra’ (Calender of Events) dated 29.4.2007 (Annexure P-2) recorded under Section 145 CrPC, the orders dated 22.5.2007 (Annexure P5) passed by the SDM, Gannaur and the order dated 1.3.2008 (Annexure P7) passed by the Additional Sessions Judge, Sonepat whereby it has been held that respondent No.2 is in possession of the kotha which is subject matter of dispute and for quashing all consequential criminal proceedings emanating therefrom. Smt. Mukesh Devi (respondent No.2) lodged a complaint dated 24.4.2007 (Annexure P1) inter alia alleging that her deceased husband had constructed a room (kotha) in the field. In front of the said room, there was a tin shed. It is alleged that on 22.04.2007, Surat Singh Rathi had broken the lock of the said room and put the lock of her mother-in-law and brothers-in-law namely Smt. Crl. Misc. No. 13191-M of 2008 [2] Bedi (petitioner No.4) widow of Ram Krishan and Hari Ram, Jagminder and Dilbagh (petitioners No.1 to 3) sons of Ram Kishan respectively. The complainant (respondent No.2) had kept her paddy fodder in that room, which had been defrayed by the accused. On the basis of said complaint and the dispute regarding possession of ‘kotha’, the Police recorded a ‘Kalandra’ (Calender of Events) dated 29.4.2007 (Annexure P2) and sent up the case for proceeding under Section 145 CrPC. The learned Sub-Divisional Magistrate, Gannaur passed an order under Section 145 (1) CrPC to which the petitioners filed their reply dated 18.5.2007 (Annexure P3). It was pleaded that a Civil Suit was pending between the parties i.e. Civil Suit No.686 of 23.11.2006. In the said suit, an interim order dated 27.4.2007 had been extended which was enclosed with the reply. Therefore, in view of the pending civil suit between the parties, the proceedings under Section 145 CrPC were liable to be dropped. Respondent No.2 also filed her reply dated 18.5.2007 (Annexure P4) to the notice under Section 145 CrPC. The learned Sub Divisional Magistrate, Gannaur after considering the evidence and material on record vide order dated 22.5.2007 (Annexure P5) held that the possession of the said ‘kotha’ was with respondent No.2 before she was dispossessed on 22.4.2007. Therefore, she was held entitled to retain possession until she was ousted in due course of law. Accordingly, the possession of the ‘kotha’ in dispute was restored to the respondent No.2. The petitioners aggrieved against the said order filed a revision petition dated 31.5.2007 (Annexure P6). The said revision petition has been dismissed by the learned Additional Sessions Judge, Sonepat vide order dated 1.3.2008 (Annexure P7) which is assailed in the present petition. Learned counsel for the petitioner has submitted that in view of the civil suit pending between the parties, the learned Courts below have gravely erred Crl. Misc. No. 13191 of 2008 [3] in holding that the disputed ‘kotha’ was liable to be given to respondent No.2. A reference has been made to the order dated 26.3.2008 (Annexure P8) passed by the learned Additional Civil Judge (Senior Division), Gannaur in which an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (“CPC” – for short) was filed. On the strength of the same, it is submitted that the entire proceedings in pursuance of the order were vitiated. In support of his contention, learned counsel for the petitioners places reliance on the case of Ram Sumer Puri Mahant v. State of U.P. and Others, AIR 1985 SC 472 to contend that the orders (Annexures P5 and P7) passed by the Courts below are vitiated and liable to be set aside. It is also submitted that the possession is even otherwise that of the petitioners. I have given my thoughtful consideration to the contentions of the learned counsel for the petitioners and have gone through the records. It may be noticed that respondent No.2 Mukesh Devi is the widow of Randhir Singh (deceased). Randhir Singh is the deceased son of Ram Kishan (deceased). Bedi Devi (petitioner No.4) is the widow of Ram Kishan and the other petitioners namely Hari Ram, Jagminder and Dilbagh (petitioners No.1 to 3) are the sons of Ram Kishan. The contentions of the learned counsel that the civil Court has decided the matter in fact are misplaced. A perusal of the order dated 26.3.2008 (Annexure P8) passed by the learned Additional Civil Judge (Senior Division), Gannaur would show that it is a suit filed by respondent No.2 and her minor children against the present petitioners as also Smt. Omwati who is the daughter of Ram Kishan. The plaint of the said suit (Annexure P9) is on record. In the said suit, there is no dispute with regard to the ‘kotha’. Besides, the order dated 26.3.2008 (Annexure P8) passed by the learned Additional Civil Judge (Senior Crl. Misc. No. 13191 of 2008 [4] Division), Gannaur would show that the defendants in the said suit who are the present petitioners have been directed not to alienate the suit land to any person, till the decision of the case. Therefore, the question regarding the possession was not an issue in the said case. In Ram Sumer Puri Mahant’s case (supra), it was held that when a civil litigation was pending for the property wherein the question of possession was involved and had been adjudicated there was hardly any justification for initiating a parallel criminal proceeding under Section 145 CrPC. There is no dispute to the said proposition. However, in the present case as already noticed, the plaint (Annexure P9) of the suit does not relate to the dispute regarding the possession of the ‘kotha’. Even the order dated 26.3.2008 (Annexure P8) passed by the learned Civil Judge (Senior Division), Gannaur does not determine or adjudicate any question regarding possession of the defendants who are the present petitioners and have been directed not to alienate the suit property in the case. Therefore the ratio of the judgment in Ram Sumer Puri Mahant’s case (supra) is clearly inapplicable. Learned counsel has then cited the case of Maan Babu Dubey v. State of UP and Others, 2006 (4) RCR (Crl.) 422 (Allahabad). In the said case also the dispute was with respect to possession of land and the Magistrate had passed an order attaching property in proceedings under Sections 145 and 146 (1) CrPC. Civil litigation was pending between the parties in respect of the same property. It was held that proceedings under Section 145 CrPC were not maintainable. As already noticed in the present case, there is no dispute regarding possession of the ‘kotha’ before any Civil Court and neither the petitioners have been able to show any such dispute. Crl. Misc. No. 13191 of 2008 [5] Learned counsel for the petitioner has then contended that the petitioners are otherwise in possession of the kotha. The question regarding possession having been examined and gone into by the Sub Divisional Magistrate, Gannaur as also the Additional Sessions Judge, Sonepat would not in the facts and circumstances warrant re-examination of the factual position in proceedings under Sections 482 CrPC. This Court in exercise of its inherent jurisdiction is not to embark upon inquiry to go into the veracity of evidence and materials so as to establish as to which party is in possession of the disputed property unless it is shown that the orders passed by the Courts below are perverse or otherwise unsustainable in law. A perusal of the order of the learned Additional Sessions Judge, Sonepat dated 1.3.2008 (Annexure P7) would show that the only ground to assail the order (Annexure P-5) of the Sub Divisional Magistrate, Gannaur was that a civil suit was pending between the parties. It was observed that in the present case, no doubt a civil suit bearing No.686 of 2006 was pending between the parties. However, no copy of the order had been placed on the file by any of the parties to show whether any status quo order or any stay order had been passed by the civil Court. Even in the present proceedings, the order that has been placed on record only shows that the petitioners have been restrained from alienating the suit property. Therefore, there is no error of jurisdiction in the orders passed by the Courts below. Consequently, there is no merit in this petition and the same is accordingly dismissed. (S.S. SARON) JUDGE January 27, 2009 amit