[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 759 OF 1994. CRIMINAL WRIT PETITION NO. 759 OF 1994. CRIMINAL WRIT PETITION NO. 759 OF 1994. 1. Shri Vishwas Vinayak Chitrao 2. Mrs. Pradnya Vishwas Chitrao Both residing at 1206-A/45, Jangli Maharaj Road, Pune-411 004 ..Petitioners. V/s 1. Bhartiya Charitra Kosh Mandal 2. The State of Maharashtra ..Respondents. Mr. S.R. Chitnis for the petitioners. Mr. P.P. Hudlikar with Mr.D.B.Lonkar for respondent No.1. Mr.P.S. Hingorani, A.P.P. for the State. CORAM : S.C. DHARMADHIKARI, J. CORAM : S.C. DHARMADHIKARI, J. CORAM : S.C. DHARMADHIKARI, J. DATE : 15TH & 22ND SEPTEMBER, 2006. DATE : 15TH & 22ND SEPTEMBER, 2006. DATE : 15TH & 22ND SEPTEMBER, 2006. ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT . This Writ Petition under Article 227 of the constitution of India read with Section 482 of Criminal Procedure Code challenges the order dated 17th April, 1994, passed by the Additional Sessions Judge, Pune, in Criminal Revision Application 153/1994, as also the [2] order of the Sub-Divisional Magistrate, Pune City Sub-Division, Pune in case No. 8/1993, dated 29/1/1994. 2. It is not in dispute that these orders are passed during the course of proceedings under Section 145 of Code of Criminal Procedure, 1973. 3. The petitioners are husband and wife. The first respondent is a Trust registered under the Bombay Public Trust Act, 1950. The Trust is represented by the deceased father of the petitioner No.1. The Trust had filed a complaint at Deccan Gymkhana Police Station, which was registered at C.R.No. 275/1993 alleging offences under section 452, 454, 341 and 427 of Indian Penal Code. This complaint was filed on 9th April, 1993. This complaint was sent to the Judicial Magistrate, First Class, In-charge Anti Corruption Court, Pune on 17th May, 1993. 4. During the pendency of this complaint and proceedings in pursuance thereof, the first respondent filed an application on 11th May, 1993, praying therein that the possession of the three rooms was with the father of the petitioner No.1 and stating that the [3] premises more particularly described in paras 2 and 4 of the present petition have been taken charge by the petitioners. The first respondent’s application appears to have been rejected as being not tenable. 5. In so far as the aforesaid C.R. is concerned, the petitioners have been protected by an order of Anticipatory Bail. 6. The plea of the petitioners is that having failed to obtain possession of three rooms on the second floor of the said building, on 21st June, 1993, an application was filed by the first respondent-trust. The prayers in the said application are that three rooms on the second floor be restored to the possession of the said Trust and the appellants be directed accordingly. Second prayer according to the petitioners in the said application was that pending the hearing and final disposal of the application under Section 145, three rooms on the second floor which were allegedly, illegally occupied by the petitioners be sealed, with a view to protect the furniture therein. 7. Thus, the grievance is that the application [4] dated 21st June, 1993 ( Annexure "C") is invoking the powers of the authorities under section 145 of Cr.P.C. with regard to possession of three rooms on the second floor of the building. 8. I am not concerned with the proceedings pertaining to the sealing of the premises because it is an admitted position that the order of sealing of the said premises has subsequently been set aside by this Court. All that is remaining for my consideration is the proceeding under section 145(1) of Cr.P.C. and the out come of an application made under sub-section (5) of section 145 of Cr.P.C., by the petitioners herein. This being the position, I need not refer to the other events which are set out in the petition. 9. The grievance of the petitioners principally is that upon an application made under section 145(1) of Cr.P.C., the learned Sub-Divisional Magistrate issued a notice and after the petitioners’ filed their reply ultimately, Sub-Divisional Magistrate passed an order on 6th July, 1993. It is contended that this is an order purporting to be one made under section 145(1) of the Cr.P.C. [5] 10. Mr. Chitnis, learned Senior Counsel appearing for the petitioners, submits that the first respondent is a Trust registered under the Bombay Public Trust Act, 1950. However, in so far as the trust properties are concerned, the Trust purported to file a change report. In the change report, the father of the petitioner No. 1 had pointed out that the portion which is in possession of the present petitioners was leased to the first respondent Trust. In such circumstances and noting certain other events, a change report was filed by him. This change report was filed after C.R.No. 275/1993 was registered by the Deccan Gymkhana Police Station. Prior thereto, the first respondent Managing Trustee viz. deceased father had tried to move furniture items allegedly belonging to the Trust into the second floor portion, which is in possession of the first petitioner and that move was resisted by the petitioners. Therefore, after the complaint was filed, the father proceeded to institute a change report before the Assistant Charity Commissioner. That change report is dated 11th June, 1993. On 21st June, 1993 he moved an application under section 145 as also 146 of Cr.P.C. against the first petitioner. Thereafter, on 24th June, [6] 1993, Change Report No. 853/1993 was filed before the Assistant Charity Commissioner by the deceased father in the capacity of Managing Trustee of the respondent Trust and once this change report was filed the Managing Trustee withdrew the earlier change report dated 11th June, 1993. On 6th of July, 1993 the SDM, Pune passed an order to issue process under section 145(1) of Cr.P.C. Mr. Chitnis’s submits that the Managing Trustee has filed change report earlier and thereafter, moved the application under section 145 of Cr.P.C. He submits that within two days of filing of the application under section 145 of Cr.P.C., he withdraws the earlier change report and files a fresh change report. It is thereafter, SDM has passed an order to issue process. There is no apprehension of breach of peace. His submission is that the very foundation of proceedings under section 145 of Cr.P.C. is that there must be a dispute which would create genuine apprehension of breach of peace. No such apprehension exists or is made out and therefore, the order passed by the SDM is patently unsustainable. 11. It is in these circumstances, that an application was filed under Section 145 (5) of the [7] CR.P.C. by the petitioners praying that proceedings initiated by the first respondent be stayed as no dispute exists or existed. Mr. Chitnis submits that sub section (5) of Section 145 Cr.P.C. empowers a Magistrate to cancel his order and thereafter stay all proceedings in furtherance of the order sub-section (1) of Section 145 Cr.P.C. It is this power which was invoked by filing an application before the SDM. Mr. Chitnis has taken me through the contents of that application and the order passed on 29/1/1994 ( Annexure "S" ). Mr. Chitnis submits that the learned Sub-Divisional Magistrate was in complete error in as much as this application of the petitioners could not have been rejected on the spacious plea that the SDM was satisfied that dispute existed and apprehension of breach of peace was also made out. He submits that neither at the initial stage nor at the stage when the application under section 145(5) Cr.P.C. was filed by the petitioners any dispute existed nor is there any apprehension of breach of peace. 12. Mr.Chitnis submits that the observations of the learned SDM that when both parties take a contradictory stand it shows that there is a dispute and hence, the [8] provisions of section 145(5) Cr.P.C. do not come into picture are patently erroneous, unsustainable and defeats the very purpose and object for which this provision has been enacted in Cr.P.C. In substance, his submission is that SDM erred in law in rejecting the application of the petitioners and directing that proceedings under section 145 Cr.P.C. be continued. 13. Mr. Chitnis then submits that even the learned Sessions Judge before whom the petitioners filed Criminal Revision Application No. 153/1994 to challenge the order of the SDM, Pune has committed the same error. His order is vitiated by total non application of mind and is patently unsustainable. 14. The submission of Shri Chitnis is that the learned Sessions Judge ought to have taken cognizance of the submissions of the petitioners that the order dated 19th January, 1994 is vitiated and has serious consequences. The prayer of the petitioners was for cancellation of the order under section 145(1) and stay of further proceedings. When such is the nature of the prayer and ambit and scope of the powers of the Magistrate being provided by section 145(5) Cr.P.C., [9] then the order of the learned Sessions Judge holding that the Magistrate’s finding and ultimate conclusion are interlocutory in nature is contrary to the very scheme of section 145 of Cr.P.C. Such orders cannot be said to be interlocutory but having serious consequences and deciding certain rights of the parties. When prayer is made to stay further proceedings and that prayer is refused then, in so far as the application under section 145(5) Cr.P.C. is concerned, such an order is a final order and cannot be termed as inter-locutory. Hence, the revision application was clearly maintainable. That apart, if the application was not maintainable, then, there was no occasion for the learned Sessions Judge to have made observations to this effect that it is not necessary that there should be breach of peace when an order under section 145 (1) is passed. This observation means that the learned Sessions Judge has gone into the merits of the controversy as well. Looked at from any angle, the orders under challenge are vitiated by non application of mind and perverse and deserve to be quashed and set aside. 15. Mr. Chitnis has also referred to the subsequent developments in as much as he has invited my attention [10] to the observations of the Deputy Charity Commissioner, Pune Region, Pune in the change report proceeding. The order dated 22nd November, 2001, according to Shri Chitnis puts an end to the controversy in as much as the said order holds that the trust does not have any right, title or interest in the property. The property could not have been dedicated to the Trust by the father of the petitioner No.1. The property was an ancestral property. Such being the position and the petitioner No.1 being the son, as a co-parcernary, he had certain rights therein. Therefore, these developments justify the stay of further proceeding under section 145 of the Cr.P.C. 16. In support of his submissions Shri Chitnis has relied upon a decision of this Court, reported in 1980 1980 1980 Mah. L.J. 372 (Jagatnarayansingh Swarupsingh Chithere Mah. L.J. 372 (Jagatnarayansingh Swarupsingh Chithere Mah. L.J. 372 (Jagatnarayansingh Swarupsingh Chithere and others V. Swarupsingh Education Society and and others V. Swarupsingh Education Society and and others V. Swarupsingh Education Society and another). He has also relied upon the another). He has also relied upon the another). He has also relied upon the decision of the Supreme Court reported in AIR 1968 SC 1444 (R.H. AIR 1968 SC 1444 (R.H. AIR 1968 SC 1444 (R.H. Bhutani V. Miss Man J. Desai and others) and AIR 1985 Bhutani V. Miss Man J. Desai and others) and AIR 1985 Bhutani V. Miss Man J. Desai and others) and AIR 1985 472 (Ram Sumer Puri Mahant V. State of U.P 472 (Ram Sumer Puri Mahant V. State of U.P 472 (Ram Sumer Puri Mahant V. State of U.P). 17. 17. 17. On the other hand, Shri Hudlikar. appearing for [11] the first respondent has submitted that the Court below has committed no error in refusing to take cognizance of the petitioners request of staying further proceedings and cancelling the order under sub-section (1) of Section 145. He submits that in proceedings under Section 145 the authorities are not concerned with the right, title and interest in immovable property. All that the authorities are concerned, is a dispute with regard to possession of the same. It is well settled that such proceedings do not decide other rights in the property. He has invited my attention to sub-section (1) of Section 145 and has contended that the Executive Magistrate has to be satisfied from a report of a Police Officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land etc. and thereupon he shall make an order in writing stating the grounds that he is so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specific date and time. Mr. Hudlikar emphasises the words "parties have to put in written statements of their respective claims as regards the actual possession of the subject property" appearing in Section 145(1) Cr.P.C. [12] 18. Mr. Hudlikar submits that no case is made out for quashing of the proceedings because the application filed by the first respondent clearly shows that a dispute likely to cause a breach of peace existed with regard to the subject premises. The learned SDM is in no error while refusing to take cognizance of the application preferred by the petitioners under sub-section (5) of Section 145 of the Code. Mr. Hudlikar submits that the petitioners have not filed any civil suit to assert their right, title and interest in the properties. Admittedly, no such proceedings are taken even during the pendency of the present petition by them. In his submission, assuming that revision application was maintainable, yet, no case was made out for setting aside the order of the Magistrate". 19. For all these reasons, he submits that the present petition for quashing of the proceedings be dismissed. 20. For properly appreciating the rival contentions, it would be necessary to refer to the contents of the application which was preferred by the first respondent. [13] The first respondent had admittedly invoked the jurisdiction of the Sub-Divisional Magistrate, Division Pune by filing an application on 21st June, 1993 (Annexure "C"). 21. In this application the first respondent has stated thus:- "The applicant under signed is working as Secretary and Managing Trustee of the above-mentioned trust since the inception of the Trust i.e. 31.1.1958." "The House at CTS No. 1206/A/45 is personally owned by me. This is a three -storeyed house where two rooms facing east out of five rooms situated on the ground floor, and two rooms facing east and one room facing north situated on the second floor, and two garages on the backside, have been leased to Bharatiya Charitrakosh Mandal vide Lease Deed dated 27.7.91 for a period of five years, for their office, Library and Godown. A true copy of this lease deed is appended to this Application as Exhibite-3." "I myself stay in the three rooms situated on the ground floor of the house at CTS No. 1206/A/45, Jangali Maharaj Road, pune, the other two rooms on the ground floor being leased out to Bharatiya Charitrakosh Mandal. On the second floor, except for the three rooms leased out to Bharatiya Charitrakosh Mandal, the other two rooms have been temporarily given by me for purpose of residence, to my son Vishwas Vinayak Chitrao and daughter-in-law Pradnya Vishwas Chitrarao." "Even when the situation was a described in para 4 above (1) My son Vishwas Vinayak Chitrao and [14] (2) My daughter-in-law Pradnya Vishwas Chitrao, on 7.5.1993 at 10.00 AM. broke open nine locks on the three rooms situated on second floor of House No. 1206/A/45, Jangali Maharaj Road, Pune which were leased out to Bharatiya Charitrakosh Mandal and with which the respondents had no connection whatsoever, and obtained possession of these rooms, and prevented the Secretary and Managing Trustee of the Applicant Trust from entering his office on the second floor, and threw away the belongings of the trust. 22. A reading of these paras would indicate that the first respondent-applicant contended that the house CTS No. 1206/A/45 situated at Jangali Maharaj Road, Pune is owned by Managing Trustee. It is a three storeyed house where two rooms are facing east, out of 5 rooms situate on the ground floor and 2 rooms facing east and one room facing North, situate on the second floor along with two garages at the back side have been leased to the first respondent Trust under a lease deed dated 24/7/1991 for a period of 5 years for their office, library and godown. The Managing Trustee stays in the three rooms situate on the ground floor. The other two rooms on ground floor are leased/let out to the Trust. On the second floor except three rooms let out to the Trust, there are other two rooms which have been given by him for the purpose of residence to his son, the petitioner No.1 and daughter-in-law petitioner No.2. [15] 23. However, on 7th May, 1993 at about 10 a.m. the petitioners broke open 9 locks on the 3 rooms situate on the second floor which are leased out to the first respondent Trust and with which the respondents had no connection whatsoever. They took possession of these rooms and prevented the Secretary and Managing Trustees from entering the office of the trust on the second floor. They threw away the belongings of the Trust. There is a reference made to the complaint of Criminal Trespass and the FIR. There is also a reference to the complaint made to the Charity Commissioner, Pune Region, Pune, so also to the Deputy Commissioner, Zone I by the Superintendent/Trust Registration Office, Pune. 24. Thus, the case of the first respondent is that his son and daughter-in-law have broken open 9 locks and took forcible possession of the premises, described in the application. It is in these circumstances, he requested that proceedings under section 145 of Cr. P.C. be commenced and appropriate orders directing restoration of possession of the first respondent be passed. [16] 25. On the receipt of this application a notice was issued by SDM, Pune on 28th June, 1993 calling upon the petitioners to file their say to the application preferred by the first respondent. 26. Accordingly, the petitioners filed their reply which is at annexure "G" page 42. It is the contention of the petitioners that the Trust is not a tenant in respect of three rooms and that there was no dispossession as alleged. On the other hand, the property is an ancestral property, wherein respondent No.1 has undivided right, title and interest and the petitioners have been occupying all 5 rooms on the top floor as owners. That the Trust was in possession of the premises was also denied. They denied the admissibility of the lease deed because the same was unregistered. It was also pointed out that there is no necessity of holding any proceeding under Section 145 of Cr.P.C. because the ingredients of Sub-Section (1) of Section 145 are not satisfied in this case. It was contended that there is no likelihood of breach of peace. There was never any quarrel between the parties. There was no obstruction caused to the first respondent in any manner. The so called apprehension that there [17] will be a breach of piece, is not well founded. On the other hand, it was asserted that parties are related to each other and therefore, no intervention of the police was necessary. The SDM has passed an order on this application and it is an order under section 145(1) of Cr.P.C. In this order, the SDM has referred to the report dated 3rd July, 1993 of the Police Inspector, Deccan Gymkhana Police Station. He has observed that the Police Inspector has reported that the petitioner No.1 has taken forcible possession of the three rooms on 7th May, 1993 without knowledge of the Managing Trustee. There is every possibility of breach of peace in respect of the disputed rooms. 27. Thereafter, the SDM has referred to the say of the petitioners and has observed that, if process under section 145 of Cr.P.C. is not issued then there is a possibility of breach of peace. The parties cannot be allowed to take law in their hands and this is a fit case, therefore, to initiate and commence proceedings under Section 145 of Cr.P.C. 28. In the meanwhile, an order was passed to seal the three rooms. The order of sealing the premises was [18] ultimately set aside by this Court in a writ petition, which was preferred by the petitioners, being Criminal Writ Petition No. 986/1993. The first respondent challenged that order in Supreme Court but the Special Leave Petition was dismissed with a direction that the main proceedings under Section 145 be disposed of as expeditiously as possible. 29. The petitioners thereafter, preferred an application under Section 145(5) of Cr.P.C. In the application the petitioners have referred to the investigation carried out by the Deccan Gymkhana Police station. It was alleged by the petitioners that the Deccan Gymkhana Police Station came to a conclusion that there is no substance in the complaint lodged by the first respondent. The police authorities closed the case, holding that the complaint is false, on 4th November, 1993. The proceedings under section 145 are based upon the complaint lodged by the first respondent against the petitioners. Since, the complaint has been found to be false and frivolous, there is no point in continuing the proceedings. The proceedings are being initiated only to harass the petitioners. The Police authorities have made a thorough enquiry and have [19] recorded the above conclusion. The petitioners therefore, prayed that the proceedings initiated under section 145 be dropped. This application was filed on 7th December, 1993. 30. To this application, the first respondent filed a written statement and apart from denying the contents of the application preferred by the petitioners, the first respondent contended thus:- "It is submitted that police report regarding closure of our case on 31.8.1993, contained in the letter No. 5647/993 dated 21.11.1993 of P.I., Deccan Gymkhana Police Station, refers to F.I.R. filed by the Applicant, as far back on 09.05.1993, and as such, does not cover later developments in the case." "It is further submitted that diametrically opposite and contradictory police report regarding apprehension of breach of peace has been submitted to this Hon’ble Court by Prabhat Road Police Chowky, vide Reports No. 3308/93 and 3453/93 dated 03.07.1993 and 13.07.1993 respectively (copies of S.I. Reports enclosed). "Moreover as seen from the fresh complaint dated 14.12.1993, addressed to Deputy Police Commissioner, Zone-1, Poona (copy enclosed) the applicants are till today receiving repeated fresh threats in person and on phone, for withdrawing the present complaint in this Hon’ble Court, and threatening us dire consequences in case of our failure to do so." 31. In this written statement filed on 23rd [20] December, 1993 the first respondent prayed that contradictory police reports having been filed, the proceedings under section 145 of Cr.P. C. be continued and appropriate orders in accordance with law be passed thereon. 32. It is pertinent to note that the learned Sub-Divisional Magistrate has observed in his order dated 29th January, 1994 that at the initial stage he was satisfied that the dispute exists, so also that there is apprehension of breach of peace. The learned Magistrate has also noted the fact this aspect is disputed by other party. He observed that when both parties take contradictory stands and there is no end to the dispute, then, even if, there may not be apprehension of breach of peace, the provisions of section 145(5) do not come into picture. The proceedings will have to be completed and a decision in accordance of sub-Section (6) of Section 145 will have