OM PRAKASH MADAN Vs. STATE

JUDGEMENT

(1.) KANSHI Ram, respondent No. 2, is the owner of shop No. 543, Lajpat Rai Market, Delhi. Both the parties to the petition were arrested by the city Kotwali police on February 24, 1986 under the provisions of Sections 107/151 Cr.P.C. and a Kalendra under those provisions were filed before the Assistant Commissioner of Police. Two days thereafter i. e. on February 26, 1916 the police filed another kalandra under the provisions of Section 145 of the Code of Criminal Procedure (for short, the Code) to the Sub Divisional Magistrate alleging that there is an apprehension of breach of peace on account of a dispute between the parties regarding the possession of the said shop. The learned Sub-Divisional Magistrate passed a preliminary order under Section 145(1) of the Code on that very day. He also being of the view that the case was one of emergency and there was imminent danger of breach of peace, simultaneously passed an order under Section 146(1) of the Code attaching the property. It may be pointed out here that an application under Section 146 of the Code had been moved on behalf of Om Prakash Madan, petitioner for obtaining an order of attachment of the property. It was after hearing the counsel for Om Prakash Madan that the said order of attachment was passed by the Sub Divisional Magistrate, Kanshi Ram, respondent No. 2 filed a revision petition against the order of the learned Sub Divisional Magistrate passing the preliminary order under Section 145(1) and of attachment of the property under Section 146(1) of the Code. It was pointed out before the learned Additional Sessions Judge that a suit had already been filed by Kanshi Ram against Om Prakash Madan prior to February 26. 1986 for the grant of a permanent injunction against Om Prakash Madan restraining him from interfering with the alleged possession of Kanshi Ram of the dispute property and a summons/notice had already been served on Om Prakash Madan in that suit. The learned Additional Sessions Judge taking note of the pendency of this suit between the parties and relying on the decision of the Supreme Court in Ram Sumer Puri Mahant v. State of U.P. 1985(1) Recent Criminal Reports 278 (SC) : AIR 1985 SC 472, passed the impugned order holding that the attachment of the property as made by the Sub Divisional shall continue; but that the Sub Divisional Magistrate shall not continue with further proceedings under. Section 145 of the Code and that the parties shall be bound by the outcome of the civil litigation as pending between them and the possession of the shop shall be given to the party succeeding in the civil litigation.

(2.) AN application had also been moved by Om Prakash Madan to the Sub Divisional Magistrate on March 4, 1986 stating that his goods lying in the shop had been thrown out by Kanshi Ram after which the shop was locked by the police in pursuance of the attachment order as passed by the Sub Divisional Magistrate. It was prayed that an inventory of those goods may be got prepared by the police. On this application the S.D.M. had directed the police to prepare an inventory of the goods that may be found lying outside the shop and to put them inside the shop after removing the lock of the shop and to reseal the shop thereafter. This order was also challenged in revision before the learned Additional Sessions Judge. He observed that as the order directing the putting of the goods inside the shop was beyond the scope of the prayer in the application of Om Prakash Madan, the learned Sub Divisional Magistrate was not justified in making that order. He accordingly quashed the order to that extent however retaining the order as regard, the making of the inventory of the goods by the police.

(3.) THE matter came up for consideration by a learned Single Judge of this Court. M.K. Chawla, J. in Indu Bhai Patel and Other v. State and Others, 1987(1) Recent Criminal Reports 587 : 1987 CC. Cases 393, after referring to a number of judgments of some High Courts on the point at issue held that in view of the decision of the Supreme Court in the said case there was no scope for taking the view different from the one that if civil litigation is pending at the time of initiation of proceeding under Section 145 there is no question of the parties, continuing the proceedings under Sections 145 and 146 of the Code or of any order being passed by the Magistrate under those provisions thereafter. Not only that the Supreme Court itself recently had the occasion to consider its judgment in the case of Ram Sumer Puri Mahant (Supra) in the case of Jhunamal alias Devandas v. State of Madhya Pradesh and ors. JT 1988(3) SC 479. After stating the facts of the case of Ram Sumer Puri Mahant (supra), the Supreme Court observed as below :-