Criminal Misc. No. M-9730 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-9730 of 2009 (O&M) Date of Decision:20.08.2009 Dalip Kaur .....Petitioner Vs. Sarwan Singh and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. H.N.S. Gill, Advocate for the petitioner. Mr. Ajay Jain, Advocate for respondent No.1. Mr. Amit Kaushik, Assistant Advocate General, Haryana. **** JUDGMENT HARBANS LAL, J. This petition has been moved by Dalip Kaur under Section 482 of the Code of Criminal Procedure for quashing order dated 3.2.2009 (Annexure P.2) passed by Sub Divisional Magistrate, Sirsa vide which the proceedings under Section 145 of Cr.P.C have been initiated and respondent No.2 has been appointed as receiver as also the order dated 30.3.2009 (Annexure P.3) rendered by the learned Sessions Judge, Sirsa vide which he dismissed the revision preferred against Annexure P2. The brief facts giving rise to this petition are that the petitioner is having ½ share in the land measuring 59 kanals 17 marlas. It is alleged that Sarwan Singh is not being given path to his land. Sher Singh son of Teja Singh is son-in-law of respondent No.1. Sarwan Singh – respondent wanted to purchase the land of Sher Singh, but the vendor has sold the same to Dalip Kaur, widow of Balwant Singh – petitioner. As a matter of fact, Criminal Misc. No. M-9730 of 2009 (O&M) -2- the land is joint. The petitioner is co-sharer with Sarwan Singh – respondent. Vendor, who is son-in-law of Sarwan Singh – respondent has sold the land to Dalip Kaur. Keeping in mind that grudge, Sarwan Singh – respondent filed an application/ calendra under Section 145 of Cr.P.C. He has admitted that the petitioner is in cultivating possession of the suit land. He wanted to have a path for his land through the land in the possession of the petitioner and also wanted to get one half share in the front portion. This relief cannot be given in the proceedings under Section 145 of Cr.P.C. Without taking into consideration the fact that the possession of the suit land is joint between the parties, the Sub Divisional Magistrate, Sirsa vide order dated 3.2.2009 directed Tehsildar to take possession of the land. The Courts below have not taken into consideration that the receiver can only be appointed under Section 146 of Cr.P.C whereas in the present one, the proceedings only under Section 145 of Cr.P.C have been initiated. The learned Sub Divisional Magistrate, Sirsa has not recorded his subjective satisfaction about existence of dispute regarding possession and likelihood of breach of peace between the parties. The respondent- Sarwan Singh in his reply has averred that he had moved an application on 2.6.2008 with the contention that previously Teja Singh and his sons were owners of ½ share in the total land measuring 59 kanals 17 marlas at Dhani Majra (Mochiwali) and had sold their share vide sale deed No.229 dated 5.5.2008 to Dalip Kaur – petitioner. Thereafter, the petitioner became the owner of land measuring 20 kanals 11 marlas. For remaining land, Teja Singh and his sons executed an agreement of sale in favour of respondent No.1 and the sale deed was to be executed later on. After the purchase of the land by the petitioner, she and her Criminal Misc. No. M-9730 of 2009 (O&M) -3- muscleman started interfering in the possession of land of the answering respondent and now they have threatened to take possession forcibly of the land in his possession. There was a passage/ path leading to the fields of the answering respondent as well as his residential Dahni. The petitioner forcibly closed the path and threatened that they would kill the answering respondent and the members of his family. There are/ were several civil/ criminal litigations pending and some of them stand decided. In the land measuring 59 kanals 17 marlas, a joint tubewell has been installed in Killa No.21 of Rectangle No.7 and Killa No.25 of Rectangle No.8. The answering respondent has a right to irrigate the land through this tubewell. When the answering respondent wanted to use the water of this tubewell, the petitioner started creating hurdles therein. On the basis of such facts, the calendra was sent by the police in which there is a report by the local police that the aforesaid land may be attached under Section 145 of Cr.P.C and a receiver be appointed under Section 146(1) of Cr.P.C. Keeping in mind these facts, the learned Sub Divisional Magistrate, Sirsa vide his order dated 3.2.2009 (Annexure P2) came to the conclusion that both the parties were claiming their rights on the disputed land and this has also been reported by the police. Accordingly, after coming to a concrete conclusion that there was tension between the parties regarding possession at the spot and there is every danger to peace, proceedings under Section 145 Cr.P.C were initiated. Respondent No.2 in the reply has inter-alia pleaded that on receipt of order Annexure P2, the notice was served upon him to implement the order through the Patwari as well as the SHO, concerned of P.S. Ding. That the answering respondent has unnecessarily been impleaded as a party Criminal Misc. No. M-9730 of 2009 (O&M) -4- in this petition. Respondent No.3 in his reply has also prayed that this petition may be dismissed. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the petitioner has reiterated the averments embodied in the petition. On the other hand, the learned counsel for the respondents maintained that the impugned order passed by the Magistrate being of interlocutory nature cannot be challenged by filing a revision in view of the observations rendered in re: Kali Ram v. State of Haryana, 2003(2) Recent Criminal Reports (Criminal) 595. I have well considered the rival contentions. As has been reflected in Annexure P.1 Calendra, “the land is disputed and regarding this land any untoward incident can be held at any time. That earlier also the cases are going on in the High Court. To avoid any offence, S.D.M is requested that Tehsildar Sirsa may be appointed as Receiver of this disputed land and both the parties may be directed not to interfere so that peace can be maintained and so as to avoid any mishappening.” In Annexure P.2, the impugned order dated 3.2.2009, the learned Sub Divisional Magistrate has observed that “After hearing both the parties, I have come to this conclusion that both the parties are claiming their rights on the disputed land and this has been reported by the police also. There is a tension between the parties regarding possession at the spot and there is every danger to peace. Under these circumstances, it seems to be appropriate to initiate the proceedings under Section 145 of Cr.P.C. Therefore, on the land in dispute, proceedings under Section 145 is imposed and Tehsildar Sirsa is hereby appointed as a Criminal Misc. No. M-9730 of 2009 (O&M) -5- Receiver of this disputed land and directed to take immediate possession of the disputed land and manage to take care of the disputed land under his supervision.” This clearly goes to show that the learned Magistrate has recorded his subjective satisfaction and only after doing so, he initiated the proceedings under Section 145 of Cr.P.C and appointed the receiver. In re: Ram Kumar v. State of Haryana, 1996(2) Recent Criminal Reports (Criminal) 351 and Surinder Singh v. State of Punjab, 1996(2) Recent Criminal Reports (Criminal) 154, it has been laid down that order of attachment being interlocutory order, revision against the same is barred under Section 397(2) of the Code of Criminal Procedure and an identical view has been taken by this Court in re: Kali Ram (supra). In view of the rule laid down in the afore-quoted authorities and as per the provisions enshrined in Section 397(2) of the Code of Criminal Procedure, the revision is not competent against Annexure P.2, being an interlocutory order. As a sequel of the above discussion, this petition is dismissed. August 20, 2009 ( HARBANS LAL ) renu JUDGE