NIRANJAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) - The petition under Section 482, Code of-Criminal Procedure, 1973, has been placed before me as an aftermath of my order dated August 20, 1982 passed in Cr1. Misc. No. 1366-M of 1982, which I had decided in favour of the petitioners. I had observed in that order as follows: Challenge has been made to the preliminary order passed under Section 145 (1), Criminal Procedure Code, and the pursuant notice on the basis thereof. The said notice read with the impugned order reveals that the Sub- Divisional Magistrate had taken the view that the Panchayat land had been leased out from time to time by the Sarpanch, the B. D. 0. and the District Development and Panchayat Officer to some lessees who were continuing in possession and were not delivering possession to the present lessees. It is on that score that he recorded the satisfaction that it requires determination as to who was the real owner or the lessee, and that who was in possession of the land as that fact was not being known. He also took the view that more than a hundred people were claiming respective rights on the land and on this score he apprehended breach of peace with regard to possession of land. The composite order under Sections 145 and 146, Criminal Procedure Code, passed by the learned Magistrate on 6-5-1982 is in the following translated words: This Kalendra was produced by the police today under Section 145 of the Criminal Procedure Code. After issuing notice to the parties, they be called to file written reply and documents. The disputed land is attached and Tehsildar Kapurthala, is being appointed its Receiver. The report regarding attachment be taken from Tehsildar, Kapurthala. The file be then put up on 20th May, 1982. This order read with the contents of the notice afore-noted indicates one patent fact that the dispute relates to land between the old lessees and the new lessees. It is nowhere clear as to how Section 145 of the Code of Criminal Procedure was attracted to such a situation. The learned Magistrate does not seem to have applied his mind towards that direction and. passed a cryptic order for initiating proceedings under Section 145 (1) of the Code of Criminal Procedure in routine as a sequal to the initiation of proceedings under Section 145 of the Code of Criminal Procedure. Nowhere has he recorded the satisfaction that the case was of emergent nature requiring him to take that exceptional step. On both the grounds, the order is cryptic and reveals non-application of mind. Accordingly, this petition is allowed and the impugned orders are set aside. It would be open to the learned Sub-Divisional Magistrate, Kapurthala to pass fresh orders. If so advised, in accordance with law.

(2.) I had left it open to the Sub-Divisional Magistrate, Kapurthala to pass fresh orders, if so advised. Purporting to take action afresh, he has passed the following orders: Whereas I had a fresh look upon the Calendra by the Police and I am satisfied, in view of the reasons mentioned therein that the dispute with regard to possession of various persons over various Khasra Nos. mentioned there in (as reproduced in the annexure) is likely to cause breach of peace between them. Now, therefore, in exercise the powers conferred upon me under Section 145 (1), Cr. P.C And again is a sequel order with regard to the attachment of the property in dispute under Section 146 (1) of the Criminal Procedure Code, 1973 appointing the Tehsildar, Kapurthala as Receiver thereof.

(3.) As is plain, the learned Sub-Divisional Magistrate avowedly having applied his mind has not done so at all. Now what is the aim of the dispute raised under Section 145, Code of Criminal Procedure 1973. Obviously the fact of actual possession of the subject of dispute is to be determined with reference to the date of the preliminary order. Sub-section (4) of Section 154, Code of Criminal Procedure, 1973, specifically provides that the Magistrate shall, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute. The learned Sub-Divisional Magistrate is of the view that whenever there is any dispute likely to cause breach of peace pertaining to land, then automatically Section 145 of the Code of Criminal Procedure, 1973 is attracted. That is a wrong way of reading the Section. The actual possession of the subject must be disputed. When one party is in possession of the land and the other wants to get into it, there obviously arises a dispute, but not a dispute which is to be settled in proceedings under Section 145, Code of Criminal Procedure. In that situation, it is the duty of officers to protect the interests of the person in possession till he is dispossessed by due process of law. However in view of the specific averment of the police that the old lessees were in possession of the land and the new lessees were wanting to get into it and the situation had given rise to the bear of breach of peace, action under Section 145, Criminal Procedure Code, was wholly without justification. The situation only wanted a preventive measure of the kind of proceedings under Section 107, Code of Criminal Procedure, 1973. The lead and the cue was not taken by the Sub-Divisional Magistrate in that regard. Thus there is nothing left to be sent back to him for reconsideration. To me it appears that the entire proceedings are the abuse of the process of Court. For the view I have taken, they deserve to be quashed and I hereby do it. The learned Sub-Divisional Magistrate, if so advised, may proceed against parties under Section 107 of the Code of Criminal Procedure, 1974 towards the prevention of breach of pen. Paltlon allowed.