CRM No.M-52666 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-6.10.2010 Managing Committee Gurdwara Sahib, village Manak Dheri ...Petitioner Versus Sub Divisional Magistrate-cum-Executive Magistrate, Hoshiarpur & others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Om Pal Sharma, Advocate for the petitioner. Mr.Shilesh Gupta, DAG Punjab. Mr.Gurnam Singh, Advocate for respondent No.3. M ehinder S ingh S ullar , J . (Oral) The matrix of the facts, culminating in the commencement, relevant for disposal of the present petition and emanating from the record, is that Gurdwara Sahib, Lehandi Patti in village Manak Dheri, Tehsil and Distt.Hoshiarpur is in existence for the last about 100 years. The villagers have constituted a Managing Committee (hereinafter to be referred as “the petitioner- Committee”) for managing the affairs of the Gurdwara Sahib. The petitioner- Committee claimed that Mohan Dass Chela Sarupa Nand (respondent No.3), with an ulterior motive, has started creating hindrance in the peaceful functioning and construction of building of Gurdwara Sahib, without any legal right. He filed a false civil suit for a decree of permanent injunction alongwith an application for ad interim injunction, inter-alia, pleading wrong facts, restraining the petitioner- Committee from interfering into his lawful and peaceful possession. The petitioner-Committee contested the claim of respondent No.3. The trial court dismissed his stay application, by virtue of order dated 19.5.2006 (Annexure P1). The appeal filed by respondent No.3 against the said order was dismissed as well CRM No.M-52666 of 2007 2 by the first appellate Court, vide order dated 20.6.2006 (Annexure P2). 2. Having lost on the civil side, respondent No.3 filed a complaint before the Sub Divisional Magistrate, Hoshiarpur (respondent No.1) for initiation of proceedings under sections 145 and 146 Cr.PC. Not only that, respondent No.1 initiated the proceedings and passed the impugned order dated 5.10.2007 (Annexure P3), but also attached the disputed property under section 146 Cr.PC and appointed Naib Tehsildar as its receiver to take over the control of Management of the Gurdwara Sahib, vide order of even date (Annexure P4). 3. The petitioner-Managing Committee did not feel satisfied and filed the present petition for quashing the impugned orders (Annexures P3 and P4), invoking the provisions of section 482 Cr.PC. That is how I am seized of the matter. 4. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted, for the reasons mentioned here-in-below. 5. As is evident from the record that respondent No.3, having failed on the civil side, filed a complaint before the Sub Divisional Magistrate (respondent No.1) for initiation of proceedings under sections 145 and 146 Cr.PC. He initiated the proceedings and passed the impugned orders (Annexures P3 and P4), in the manner depicted here-in-above. 6. Such thus being the position on record, now the core question, that arises for determination in this petition, is as to whether respondent No.1 has the jurisdiction to initiate parallel proceedings under sections 145 and 146 Cr.PC or not ? 7. Having regard to the rival contentions of the learned counsel for the parties, to me, respondent No.1 did not have the jurisdiction to start the parallel proceedings under sections 145 and 146 Cr.PC, particularly, when the civil Court CRM No.M-52666 of 2007 3 is seized of the matter and has already negatived the claim of possession of respondent No.3, vide orders (Annexures P1 and P2), in this respect. 8. Section 145 Cr.PC postulates that “whenever an Executive Magistrate is 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 within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person and to put in written statements of their respective claims as respects the facts of actual possession of the subject of dispute.” Sequelly, Sub-sections (2) to (10) posit the procedure to be followed by the Executive Magistrate in this regard. Meaning thereby, before initiation of any proceeding under section 145 Cr.PC, the Executive Magistrate was required to be satisfied from a report of a police officer or upon other information that there is a dispute in respect of the possession, which is likely to cause breach of peace concerning any land and not otherwise. The existence of dispute concerning the possession of land is a condition precedent for initiation of these proceedings under sections 145 and 146 Cr.PC in this context. 9. As is clear in the instant case and what is not disputed is that the Civil Court has already decided the question of possession of land in dispute, by way of the order (Annexure P1), which was upheld by the Ist Appellate Court, vide order (Annexure P2). Therefore, respondent No.1 slipped into legal error in initiating the proceedings under section 145 Cr.PC, by virtue of the order (Annexure P3) and attaching the property and appointing the receiver to take over possession of the suit land, under section 146 Cr.PC, by means of the order (Annexure P4). Thus, the same are illegal and without jurisdiction. The proceedings initiated by respondent No.1 under section 145 Cr.PC and order attaching the property under section 146 Cr.PC are nothing, but are sheer abuse of process of court. CRM No.M-52666 of 2007 4 10. As the civil Court has already decided the question of possession and seized of the matter, therefore, the SDM did not have jurisdiction and there was absolutely no occasion either for initiating proceedings under Section 145 Cr.PC (Annexure P3) or to order attachment of the land under Section 146 Cr.PC (Annexure P4). 11. On the contrary, being an Executive Magistrate, it was his official duty to respect the decision and direction of competent Civil Court regarding possession and to act accordingly in this relevant connection. If the parallel proceedings under these sections between the parties, with respect to the same lands is permitted to continue, then it would amount to frustrate the sanctity, weight and effect of the decision of the Civil Court. Such impugned orders would tend to paralyse the administration of justice, which is not legally permissible. Once a dispute as to possession has been resolved in the proper manner by a Civil Court of competent jurisdiction, there would be no longer exist a dispute pertaining to the possession of the land within the meaning of Sections 145 or 146 Cr.PC 12. In this manner, respondent No.1, should, in the obtaining facts and circumstances of the case, proceed on the basis that Gurdwara Sahib through the petitioner-Committee was in possession of the disputed property at the relevant time, as presumption to that effect can legitimately be drawn under section 114 of the Indian Evidence Act. Even if still there is any apprehension of breach of peace in this context, the Magistrate ought to have taken recourse to proceedings under S.107 or 144 Cr.PC, as the case may be, instead of initiating the parallel proceedings under section 145 Cr.PC in this relevant connection. Needless to mention that the parties are in a position to approach the civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. 13. An identical question arose before the Hon'ble Apex Court in case CRM No.M-52666 of 2007 5 Ram Sumer Puri Mahant v. State of U.P.and others AIR 1985 Supreme Court 472. Having interpreted the provisions of Section 145 Cr.PC vis-a-vis civil litigation, it was ruled as under:- “When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding under S.145 of the Code, would not be justified. The parallel proceedings should not be permitted to continue and in the event of a decree of the civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.” 14. Therefore, the argument of the learned counsel for the petitioner that the impugned orders (Annexures P3 and P4) are illegal and without jurisdiction, has considerable force, the contrary contentions of the learned counsel for the respondents “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances and the law laid down in Ram Sumer Puri Mahant's case (supra) is fully attracted to the facts of the present case and is the complete answer to the problem in hand. 15. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 16. In the light of the aforesaid reasons, the instant petition is hereby accepted. Consequently, the complaint/proceedings under sections 145 and 146 Cr.PC and the impugned orders (Annexures P3 and P4) are hereby quashed, in the obtaining circumstances of the case. 6.10.2010 (Mehinder Singh Sullar) AS Judge Whether to be referred to reporter?Yes/No