Criminal Misc. No.M-21042 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-21042 of 2008 Date of decision: 13.2.2009 Kehar Singh and others ......Petitioners Versus State of Haryana and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.K.Malik, Advocate, for the petitioners. Mr.Sidharth Sarup, AAG, Haryana. Mr.R.K.Gupta, Advocate, for respondents No. 2 to 14. **** SABINA, J. The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure (“Cr.P.C. for short) for quashing the Calandra under Section 145 Cr.P.C. (Annexure P-1) as well as impugned order dated 21.7.2008 (Annexure P-2) passed by the Sub Divisional Magistrate, Kaithal. Police of Police Station Pundri presented the Calandra under Section 145 Cr.P.C. The total land owned by all the co- sharers is 270 kanals 17 marlas plus 248 kanals 2 marlas. Out of this land co-sharers Ishwar, Miyan, Jagat Ram and Smt. Bir Mati sold 13 kanals and 4 marlas of land to the second party mentioned in the Calandra. It was further mentioned in the Calandra (Annexure P-1) Criminal Misc. No.M-21042 of 2008 2 as under:- “That this above land is of Mushtarka Khata since long time. The land of the second party is continuously in the possession of first party. An assassination has also taken place in connection with this land. On which order No.127 dated 17.7.2002 under Section 148/149/302 IPC was registered in Police Station Pundri in which 18 persons were sentenced for 20/20 years. Now against second party also for taking the possession of land case No. 117 dated 16.5.2008 under Section 148/149/447/511 IPC has been registered at Police Station Pundri. The total area of this land is 270-17 kanal + 248-2 kanal which is in dispute after initiating proceeding under Section 145 Cr.P.C. by appointing Receiver by the Revenue Department the parties should be bounded so that no loss of life and property is caused. If it is not initiated, it can cause loss to the life of any party. The peace should not be breached. The required permission to appoint a responsible officer of the Revenue Department as a receiver may kindly be granted.” On the basis of the same Sub Divisional Magistrate, Kaithal passed the order on 21.7.2008 (Annexure P-2) that as per jamabandi for the year 2003-04, the land was joint Mushtarka and there was apprehension of breach of peace between the parties. A murder had Criminal Misc. No.M-21042 of 2008 3 taken place and FIR No.127 dated 17.7.2002 was registered at Police Station Pundri under Sections 148, 149 and 302 IPC. 18 persons were sentenced to undergo 20 years imprisonment each. Against the second party, FIR No.117 dated 16.5.2008 under Sections 148, 149, 447 and 511 IPC was registered at Police Station Pundri. Now there was apprehension of breach of peace between the parties. In view of this, Sub Divisional Magistrate, Kaithal initiated proceedings under Section 145 Cr.P.C. over the land in question and Naib Tehsildar, Pundri was appointed as Receiver and was directed to take over the possession of the land till further orders. Hence, the present petition. Learned counsel for the petitioners has submitted that the land in question was jointly owned by the parties. Possession of the land was with the petitioners. In such circumstances, proceedings under Section 145 Cr.P.C. could not be initiated. He has placed reliance on Rachhpal Singh vs. State of Haryana and others 1990 (2) RCR 566 (P&H), Ram Subhag Pandey vs. State of U.P. And others 2001(3) RCR 384 (ALL), Ranbir Singh vs. Dalbir Singh 2002(2) RCR 275 (SC), Kali Ram vs. State of Haryana 2003(2) RCR 595 (P&H), Fazlur Rahman vs. Md.Raizuddin 2004(4) RCR 828 (Guh), Sudershan Singh vs. Roshan Singh and others 2004 (4) RCR 372 (P&H), Chhaju Ram vs. Sub Divisional Magistrate, Mohindergarh 1997(2) RCR 724 (P&H), Dhanvir Singh vs. State of Punjab and another 1983 RCR 538 (P&H), Jayanti Prasad vs. Criminal Misc. No.M-21042 of 2008 4 Kamal Narain 1998(4) RCR 716 (Cal), Balbir Singh vs. State of Punjab 1999(1) RCR 677 (P&H) and Darya and others vs. State of Haryana and others 1990(2) RCR 590 (P&H). Learned counsel for respondents No. 2 to 14 has submitted that the learned Sub Divisional Magistrate, Kaithal had rightly initiated the proceedings under Section 145 Cr.P.C. as there was grave apprehension of breach of peace. Miyan Singh @ Mela was murdered by Ved Parkash and others. Vide judgment dated 23.3.2006 (Annexure R-1) all the 18 persons were convicted and sentenced under Section 302 IPC. He has placed reliance on Mohinder Singh vs. Shri Dilbagh Rai PLR (Vol.LXXVIII-1976) 803, wherein it was held that where a party uses force to dispossess the other party, in spite of the stay order in his favour, then it led to apprehension of breach of peace creating a situation for launching of proceedings under Section 145 Cr.P.C. Learned counsel for respondents No. 2 to 14 has also placed reliance on Badan Singh vs. State of Haryana 1998(3) RCR (Criminal) 426, wherein it was held that where there was dispute over possession of land and there was apprehension of breach of peace, then provisions of Section 145 Cr.P.C. could be invoked. He has next placed reliance on Makhan Singh vs. State of Punjab and others 1974 C.L.R. (Vol.II) 409, wherein, it was held that the persons in joint possession of land could also raise dispute about its actual possession and proceedings under Section 145 Criminal Misc. No.M-21042 of 2008 5 Cr.P.C. were competent. CRM No.55166 of 2008 has been filed by Mangta and others for being impleaded as party in this case. In the present case, proceedings under Section 145 Cr.P.C. have not been initiated at the request of any of the private parties. Rather a Calandra was presented by the police of Police Station Pundri for initiation of proceedings under Section 145 Cr.P.C. A perusal of Calandra (Annexure p-1) itself reveals that the land in question is Mushtarka Khata since long. The land was in possession of the first party (i.e. the petitioners). Partition proceedings are going on between the parties. This Court in Harbans Lal and another vs. Hans Raj and others 1980 CLR (P&H) (Vol.VIII) P&H 223, in para 7, has held as under:- “The consistent view taken in all the authorities is that unless the complainant alleges exclusive possession of a property, it is not within the competency of the authorities to start proceedings under Section 145 of the Code. Under sub-section 6 of Section 145 of the Code, the Magistrate has to decide as to which of the two or more contesting parties was in possession of the property. The finding on this point by the Sub-Divisional Magistrate in the instant case is not called for because it is admitted by Hans Raj complainant himself and affirmed in the report Criminal Misc. No.M-21042 of 2008 6 of the S.H.O. Police Station Lambi dated February 28, 1979 that he has been in joint possession of the land with his other brothers. Under these circumstances, the proceedings started by the Sub-Divisional Magistrate under Section 145 of the Code are illegal, misconceived and are liable to be quashed.” Thus, in the present case, proceedings under Section 145 Cr.P.C. could not be initiated as the property in question is jointly owned by the parties as per their share. Partition proceedings are going on. In these circumstances, the judgments relied upon by learned counsel for the respondents fail to advance the case of the respondents as they are based on their own facts. Accordingly, this petition is allowed. Calandra (Annexure P-1) and the order dated 21.7.2008 passed by the Sub Divisional Magistrate, Kaithal (Annexure P-2) are quashed. It is hoped that the revenue authorities would conclude the partition proceedings expeditiously. Since this petition has been allowed, no order is necessary to be passed on CRM No.55166 of 2008 as applicants Mangta and others were also aggrieved by the order of attachment (Annexure P-2). (SABINA) JUDGE February 13, 2009 anita