GURBAX SINGH Vs. KESRO DEVI

JUDGEMENT

(1.) THE challenge in this petition is to the order passed by the learned Sub Divisional Judicial Magistrate, Dera Bassi under sections 145 and 146 of the Cr.P.C. The petitioners have, therefore filed this petition under Section 482 Cr.P.C. for quashing order dated August 25, 1999 Annexure P-1 and all other proceedings taken on the basis of the report of the SHO.

(2.) THE proceedings under Section 145 Cr.P.C. were initiated on the report of SHO, Dera Bassi as the dispute relates to a piece of land between Kesro Devi on one side and Gurbax Singh and Mewa Singh from the other side. The learned Sub Divisional Magistrate, Dera Bassi vide his impugned order dated August 25, 1999 Annexure P-1 passed the relevant order which reads as under :-

(3.) ONCE the order was passed by the Civil Court by satisfying itself that prima facie case is made out in favour of the plaintiffs, that they are owners in possession, and restraint order was issued restraining Kesro Devi and others from interfering in their peaceful possession except in due course of law, as on 10.3.1999, then the learned Sub Divisional Magistrate could not pass an order on August 19, 1999 by appointing Smt. Inderjit Kaur Kang, Tehsildar as Receiver and directing her to take possession of the land immediately. The counsel for the respondents admitted that the suit for permanent injunction filed by Gurbax Singh and others is still pending and the fact that the said order passed by the trial court u/o 39 Rule 3 CPC has not been vacated as yet. The resort taken by the respondents through the proceedings under Section 145 Cr.P.C. appears to be a device to defeat the injunction order passed by the Civil Court. It is well settled that the finding given by the trial Court is binding on the criminal Court and the converse is not true. In other words the proceedings under Section 146 Cr.P.C. will apply only when the Magistrate decides that none of the parties was in possession and that there would be breach of peace if no action taken under Section 146 Cr.P.C. This is not the position in the case in hand, therefore, initiation of proceedings under Section 145/146 Cr.P.C. was unwarranted and abuse of the process of the Court.