LAWS(P&H)-1989-11-79

GURMEL SINGH Vs. SUB DIVISIONAL MAGISTRATE, PHUL

Decided On November 20, 1989
GURMEL SINGH Appellant
V/S
Sub Divisional Magistrate, Phul Respondents

JUDGEMENT

(1.) THIS is a petition under section 482 of the Code of Criminal procedure for quashing proceedings under section 145 and order under section 146 of the Code of Criminal Procedure (hereinafter referred to as the Code) passed by the learned Sub Divisional Magistrate, Phul. The material facts are as follows :

(2.) ONE Niranjan Singh died on 29-1-1988. He left behind landed property. He was survived by Sham Kaur widow and adopted son Gurmail Singh, adopted son's wife and son Gurmail Singh is the real nephew i.e. real brother's son of Niranjan Singh. Niranjan Singh's real brother i.e. real father of Gurmail Singh, namely. Bhagwan Singh his three other sons namely Gurdev Singh, Balwinder Singh and Ruldu Singh. They are respondent Nos. 2 to 4 The widow, adopted son and adopted son's wife and son are the petitioners. After the death of Niranjan Singh, the petitioners pro pounded a registered will dated 9-9-1982 while private respondents propounded an unregistered will dated 16-6-1987. The learned Collector rejected both the wills and entered mutation of the estate of Niranjan Singh in favour of his widow Sham Kaur, one of the petitioners herein. The private respondents filed a civil suit and on an application for temporary injunction filed by them the civil Court by order dated 25.8.1988 directed the parties to maintain status quo with regard to possession till decision of the suit. Later on the police submitted a report to the Sub Divisional Magistrate that the parties i e the petitioners and the private respondents were likely to use force and commit a breach of peace with regard to possession of land and, therefore, preventive action be taken under section 145 of the Code. The learned Sub-Divisional Magistrate passed order Annexure P. I on 17-11-1988. The parties appeared, filed a statement of their claim and after about six months by order dated 25-5-1999 the learned Sub Divisional Magistrate passed an order under section 146 (1) of the Code, Annexure P. 2, appointing receiver of the land till finalisation of the proceedings under section 145 of the Code. The petitioners have challenged both the orders under section 145 as well as under section 146 of the Code on the ground of being abuse of the process of the Court and they seek quashment of said orders.

(3.) THE first contention urged by Shri T.S. Sangha, learned counsel for the petitioners, is that the impugned order Annexure P I purporting to be under section 145 (1) does not amount to a valid preliminary order as required by law and therefore, the proceedings carried on before the Sub Divisional Magistrate including the subsequent order passed under Section 146(1) of the Code were without jurisdiction. In order to appreciate this contention, it may be stated that the police made a report to the Sub Divisional Magistrate stating that there was a dispute between party No. 1 (respondent herein) and party No. 2 (petitioners herein) over the possession of the land which was described in detail and there was apprehension of breach of peace on that account. The learned Executive Magistrate was requested to initiate proceedings under under Section 145 of the Code. On receipt of the above report, the learned Sub Divisional Magistrate after making reference to the above report in necessary detail stated that before proceeding further he would call upon on both the parties to the put in their claim on a specified date. The contention of learned counsel is that as that the learned Sub Divisional Magistrate had done was to reproduce the apprehension mentioned in the police report. In his order he nowhere indicated (a) his own satisfaction about the apprehended breach of peace; and (b) ground of his being so satisfied.