Delhi High Court
Jagdish Gandhi & Another vs State & Another on 3 October, 2008
Author: S.L.Bhayana
HIGH COURT OF DELHI AT NEW DELHI
Crl. Rev. P. 383/2007 & Crl.M.A. 6405/2007
Date of Decision:- October 03, 2008
Jagdish Gandhi & Another ... Petitioners
Through: Mr. Sandeep Sethi, Sr.
Adv. with Mr. Manoj v. George,
Adv.
Versus
State & Another ... Respondents
Through: Mr. A.K. Gupta, Adv. for
State/R-1
Mr. Siddharth Luthra, Sr. Adv. with
Mr. Virender Rawat & Mohd. Faraz,
Advs. for R-2
CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local paper may be
allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be referred in
the Digest? Yes
S. L. BHAYANA, J.
This criminal revision petition is directed against the
order-dated 18.05.2007, for the issuance of appropriate orders
and to set aside the order passed by the Sub Divisional
Magistrate (hereinafter to be referred as „SDM‟). Operative part
of the order reads as under:-
"In view of the above discussion, evaluating
the matter on record, statement of witness in
the court, cross examination and arguments
made by the counsel for the both the parties, I
Vishwendra, Sub-Divisional Magistrate, Vasant
Vihar as per the powers conferred to me U/S
145 CrPC hereby decide that the suit property
i.e. shop No. 64 of Sarojini Nagar Market was
in possession of Sh. S.K. Gandhi prior to
initiation of this case and was dispossessed
partially from the suit property. Hence
possession of Sh. S.K. Gandhi, party no. 1 is
hereby restored and party no. 2 i.e. Sh.
Jagdish Gandhi and Sh. Pritam Gandhi are
evicted from the suit property."
2. Firstly, I am dealing with the primary objection of
the respondents about the maintainability of present revision
petition, as per learned counsel for the respondents Revision is
only supervisionary in nature and the revisional Court can only
set right legal errors or defects but cannot reappraise the
evidence. Once the SDM has expressed that he was satisfied
about all the aspects contemplated under Section 145 of
Cr.P.C. after considering all facts and circumstances hence
there is no scope for exercising revisionary jurisdiction in this
case.
3. Now with regard to the objection raised herein
above, this Court under revisionary jurisdiction is fully
empowered to ensure that the decision is as per the cannons of
criminal jurisprudence and there is no miscarriage of justice, as
to check the correctness, legality and impropriety of an order is
within the domain of scrutiny in revisional jurisdiction.
4. I, therefore, overrule the primary objection and hold
that present revision petition is maintainable.
5. At the outset learned counsel for the petitioners has
argued that there are only two legal points involved in this
revision petition which need decision by this Court. First is
whether one liner preliminary order dated 5.5.2004 passed by
SDM directing to register a case under Section 145 Cr.P.C. is
against the mandate of Sub-section (1) of Section 145 of Cr.P.C.
as in the same there is no whisper of any apprehension of
breach of peace and about his personal satisfaction of the
same. SDM has failed to record the reasons for his satisfaction
to act under Section 145 Cr.P.C. and second point, which needs
decision according to, learned counsel for the petitioners is that
the learned SDM while passing the final order has over-stepped
the jurisdiction vested in him. As the scope of Section 145
Cr.P.C. is limited to the extent of ascertaining the dispossession
only. Section 145 Cr.P.C. is mainly concerned with possession
of the property in dispute on the date of impugned order and
dispossession, if any, within two months prior to that date and
hence SDM had over-stepped in granting exclusive possession
of the Shop No. 64 to the respondent No.2 alone and, therefore,
order dated 18.5.2007 deserves to be set aside.
6. It will be seen from the facts as to whether the
mandate of Section 145 Cr.P.C. has been followed or not. It is
a common case that Shop No. 64, Sarojini Nagar Market was in
the name of late Smt. Rukmini Devi, mother of the parties and
late Shri Gulshan Gandhi, brother of the parties was running a
business from this shop as a sole proprietor of M/s. Gulshan
Fabrics, Sarojini Nagar till his death on 6.9.2003.
7. Now as per the petitioners‟ submissions aforesaid
Shop remained closed for few days after the death of Gulshan
Gandhi. On 18.11.2003, all the three brothers moved into the
said property together as late Gulshan Gandhi died intestate
and being unmarried had left no heirs and as per family
arrangement Shop No. 64 (58 ft long and 13.5 ft. width) was
partitioned into three portions. All the three brothers were
carrying on their business from the same premises from their
respective portions.
8. Learned counsel for the petitioners submitted that
on 21.3.2004 in order to grab the whole shop in question, the
respondent No.2 had picked up a fight with the petitioners who
were in a peaceful possession of their respective portions and
as a result a complaint was lodged at PS Sarojini Nagar vide
DD Entry No. 30 dated 21.3.2004 but which was ultimately
compromised between the parties on the same day as is clear
from DD Entry No. 3A, annexed as Annexure P-4 with Rejoinder
of the petitioner‟s that the matter is regarding the division of
the Shop No. 64 between the parties and after intervention of
the relatives both the parties do not want any further
intervention of the Police.
9. On the other hand, learned counsel for the
respondents urged that although the shop is in the name of
their mother but they were carrying on their business under
the name and style of Gulshan fabrics since 1958 and they were
in exclusive possession of the shop. Again learned counsel
contended that on 14.11.2003 respondent No. 2 lodged a
complaint against the petitioners regarding the dispute.
10. On this, learned counsel for the petitioners averred
that there was no complaint made by the respondent No.2 on
14.11.2003, which is why the said complaint has not been filed
by the respondent No.2 in any of the proceedings in this matter
before any Court.
11. I have heard learned counsel for the parties at
considerable length. After consideration of the aforesaid
arguments and after going through the order -dated 18.5.2007
in which I do not find any mention of complaint dated
14.11.2003. This Court finds that the SDM has over-stepped
the jurisdiction vested in him in a proceedings under Section
145 Cr.P.C. He should have remained confined to the limits of
Section 145 Cr.P.C. The object of Section 145 Cr.P.C. is to
provide a speedy remedy for the prevention of breach of peace
arising out of disputes relating to immovable property. The
Code contemplates a determination of this question without any
reference to the merits of the respective claims of the disputing
parties as to the „right to possess‟ the subject matter of dispute.
The question of possession, moreover, has to be determined
with reference to a specified point of time as specified in the
Section 145 of Cr. P.C, namely the date of the initial order, or
in the case of forcible dispossession, the date within two
months next preceding the date on which the report of a police
officer or other information regarding the dispute was received
by the Magistrate.
12. In this case, it will be seen from the facts stated
above as to whether the provision of Section 145 of Cr.P.C has
been properly complied with or not. The order under Section
145(1) Cr.P.C. was passed by the SDM on 5.5.2004. In order to
take preventive action under Section 145 Cr.P.C, two essential
conditions must be satisfied (i) there must be dispute relating
to land or other objects mentioned in Sub-section (1) and (ii)
the dispute is likely to cause a breach of peace. If there is no
dispute there is no obligation on the part of the SDM to pass
orders under Section 145 Cr.P.C. The SDM exercising
jurisdiction under this Section must be satisfied about these
two conditions either from a police report or from any other
information, which might include an application, by the
dispossessed person. The term „satisfied‟ is of considerable
expansiveness, which means free from anxiety, doubt,
perplexity, or uncertainty. The satisfaction of the Magistrate
must be clear and unambiguous. Nothing short of that can give
him jurisdiction under Section 145 Cr.P.C. So is held in
Laxman v. Bahim Khan, 1976 Crl.L.J. 1492 and Lala Ram v.
R.R. Bainswal 1981 Crl.J. 981 (P & H High Court).
13. Now the question is whether the SDM could have
passed any order in favour of the respondent No.2 under Sub-
Section (4) of Section 145 Cr.P.C. After going by the relevant
Sub-section (4) of Section 145 Cr.P.C. it is clear that the
Magistrate could initially decide who was in possession as on
the date when the order under Sub-section (1) of section 145
Cr.P.C. was passed i.e on 5.5.2004. In case where the proviso
to the said Sub-section (4) of 145 Cr.P.C. applied, that is, if it
appeared to the Magistrate that any party had been forcibly
and wrongfully dispossessed, within two months next before
the date on which the report of a police officer or other
information was received by the Magistrate, or after that date
and before the date of his order under Sub-Section (1) of 145
Cr.P.C, the Magistrate might treat the party so dispossessed as
if the said party had been in possession on the date of his order
under Sub-section (1) of 145 Cr.P.C. In other words, if the
conditions mentioned in the proviso to Sub-Section (4) were
satisfied, the Magistrate could deem a person to be in
possession as on the date of the order under Sub-section (1) of
145 Cr.P.C, notwithstanding the fact that he was, in fact, not in
possession on that date, but lost possession earlier, within two
months next before the order. In this case unfortunately, there
is no material to show that the Magistrate received any report
of a police officer or other information within the contemplated
period by the proviso. As the respondent No.2/ 1st party before
the SDM court, lost possession much before the period
mentioned in the provision of Sub-section (4) of Section 145
Cr.P.C. i.e. on 18.11.2003, when all the three brothers as per
the family arrangement partitioned the said shop in their
respective shares and continued their business.
14. Sub-section (1) of Section 145 Cr.P.C. requires that
while making the impugned order in writing the Magistrate
shall state „the grounds of his being so satisfied‟. This
impugned order is considered so basic that a failure to draw it
up can vitiate all the subsequent proceedings. Similar view is
taken in Mathuralal v. Bhanwarlal (1979) 4 SCC 665 [see
also Gabriol Thankayyan v. Narayanan Nadar 1977 Crl.L.J.
1870 (Kerala High Court) and Banney v. Ramesh Chandra
1983 Crl.L.J. 18 (Allahbad H.C.)].
15. It appears that SDM has misdirected himself by
concentrating on the question of „ownership‟ rather than on the
question of "actual possession". It is amply clear that under
Section 145 Cr.P.C., Executive Magistrate is required to find
out the actual possession without considering the right of a
party to remain in possession. Since the SDM had
concentrated more on the question of ownership i.e. to say the
right to possess. The Judgment is bad in law. Same is the
mandate of latest judgment of the Supreme Court in Shanti
Kumar Panda v. Shakuntala Devi (2004) 1 SCC 438, as
enunciated in para 10 of the judgment which reads as under:-
10. Possession is nine points in law. One purpose of
the enforcement of the laws is to maintain peace and
order in society. The disputes relating to property
should be settled in a civilized manner by having
recourse to law and not by taking the law in own
hands by members of society. A dispute relating to
any land etc. as defined in Sub-section (2) of Section
145 having arisen, causing a likelihood of a breach of
the peace, Section 145 of the Code authorizes the
Executive Magistrate to take cognizance of the
dispute and settle the same by holding an enquiry into
possession as distinguished from right to possession
or title. The proceedings under Sections 145/146 of
the Code have been held to be quasi-civil, quasi-
criminal in nature or an executive on police action.
The purpose of the provisions is to provide a speedy
and summary remedy so as to prevent a breach of the
peace by submitting the dispute to the Executive
Magistrate for resolution as between the parties
disputing the question of possession over the
property. The Magistrate having taken cognizance of
the dispute would confine himself to ascertaining
which of the disputing parties was in possession by
reference to the date of the preliminary order or
within two months next before the said date, as
referred to in proviso to Subsection (4) of Section
145, and maintain the status quo as to possession
until the entitlement to possession was determined by
a court, having competence to enter into adjudication
of civil rights, which an Executive Magistrate cannot.
The Executive Magistrate would not take cognizance
of the dispute if it is referable only to ownership or
right to possession and is not over possession
simpliciter; so also the Executive Magistrate would
refuse to interfere if there is no likelihood of breach of
the peace or if the likelihood of breach of peace
though existed at a previous point of time, had ceased
to exist by the time he was called upon to pronounce
the final order so far as he was concerned.
16. Prima facie, it appears to me that instead of taking
recourse to the normal procedure of civil court for lawful
possession, the respondent No.2 hereinabove, has adopted an
illegal device to dispossess his own brothers from the shop.
17. Having considered the entire conspectus of the
revision petition, I set aside the order of learned SDM dated
18/05/2007, delivering the possession of the Shop No. 64 to the
respondent No.2 alone and direct that the possession of the
respective portions of the Shop would be forthwith restored to
the petitioners temporarily unless evicted in due course of law
and directing the petitioners also that the petitioners would
deliver peaceful and vacant possession of the premises as and
when required by the civil Court in the proceedings pending
before it.
S. L. BHAYANA
October 03, 2008 (Judge)
ss
