Sukhwinder Singh And Anr vs State Of Punjab And Ors
2023 Latest Caselaw 5734 P&H

                                                    Neutral Citation No:=2023:PHHC:061373




                                                           2023:PHHC:061373


       IN THE HIGH COURT OF PUNJAB & HARYANA
                   AT CHANDIGARH

                                                  CRM-M-9466-2021
                                               Reserved on 27.04.2023
                                            Pronounced on: 29.04.2023

Sukhwinder Singh and another                                   .....Petitioners

                                 Versus

State of Punjab and others                                   .....Respondents

CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL

Argued by : Mr. M.L. Saggar, Senior Advocate with
            Ms. Armaan Saggar, Advocate
            for the petitioners.

            Mr. Amit Rana, Sr. DAG, Punjab
            for respondents No.1 to 4/State.

            Mr. D.S. Walia, Advocate
            for respondent No.5.

                                  ****

MANJARI NEHRU KAUL, J.

1. The petitioners are seeking quashing of proceedings under

Section 145 of the Cr.P.C. which were initiated vide report No.11 dated

03.11.2017 (Annexure P-7) with respect to the land measuring 39K-

4M. Besides this, a challenge has also been made to order dated

22.11.2017 (Annexure P-8) passed by respondent No.2-Sub Divisional

Magistrate, Jagraon, District Ludhiana whereby respondent No.3-Naib

Tehsildar, Sindhwan Bet, Tehsil Jagraon was appointed as Receiver.

The petitioners have further laid a challenge to order dated 07.12.2019

(Annexure P-9) passed by learned Additional Sessions Judge,

Ludhiana.

2. Learned senior counsel for the petitioners has inter alia

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made the following submissions:-

(i) that respondent No.5 is the registered owner of the land in

dispute measuring 39K-4M, however, it was petitioner No.1 who was

in cultivating possession of the said land. Petitioner No.1 had entered

into an agreement to sell dated 12.01.2004 with respondent No.5 for the

purchase of the land in question. It was agreed upon between the parties

that after harvesting the wheat crop, petitioner No.1 would retain the

possession of the land. The target date for execution and registration of

the sale deed was fixed for 16.11.2004. However, respondent No.5

failed to get the sale deed executed and registered in favour of

petitioner No.1. Resultantly, a suit for specific performance of the

agreement to sell dated 12.01.2004 was instituted by petitioner No.1

against respondent No.5. The said suit for specific performance was

decreed by the learned Trial Court. The Lower Appellate Court allowed

the appeal preferred by respondent No.5 against the judgment and

decree passed by the learned Trial Court and reversed the findings

recorded by the learned Trial Court. A Regular Second Appeal which

has since been preferred by petitioner No.1 is pending adjudication

before this Court, wherein stay of alienation, has been ordered.

(ii) that the petitioner had been in cultivating possession of the

land in question even prior to the agreement to sell dated 12.01.2004,

which fact had also been admitted by respondent No.5 in his statement

dated 15.06.2014 made before one ASI Gulzar Singh, PS Sindhwan Bet

(Annexure P-6), pursuant to a complaint bearing No.677 made by him

on 14.06.2014. Subsequent to the inquiry carried out on the said

complaint, the police had submitted a report to SSP, Jagraon wherein

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also it was reported that petitioner No.1 was in possession of the land.

(iii) that due to change of Government in the State, respondent

No.5 who is an influential person, started interfering in the peaceful

possession of petitioner No.1 as a result of which the petitioners filed a

complaint dated 20.06.2017, before the local police authorities.

Respondent No.5 had also filed a complaint to police dated 19.06.2017

but the same was with a malicious intent to defeat the rights of the

petitioners. Pursuant to the aforesaid complaints, respondent No.4-

SHO, Police Station Sindhwan Bet, erred in preparing Report No.11

dated 03.11.2017, seeking initiation of proceedings under Section 145

of the Cr.P.C. The application dated 21.11.2017 for appointing a

Receiver for the standing paddy crops was thus clearly misconceived in

the above facts and circumstances.

(iv) that the proceedings under Sections 145/146 of the Cr.P.C.

could not have been initiated once respondent No.5 had himself

admitted to the possession of the petitioners in his statement given to

police. Still further, once a civil suit for specific performance had been

instituted qua the land in question and a Regular Second Appeal was

also pending before this Court, there was no occasion for respondent

No.2 to have initiated proceedings under Sections 145/146 of the

Cr.P.C. as the question of possession could be decided only in said civil

proceedings.

3. Per contra, learned counsel appearing for respondent No.5

has vehemently controverted the submissions made by learned senior

counsel for the petitioners by making the following submissions:

(i) that the petitioner had never been in cultivating possession

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of the land in question. Apart from bald assertions there was no

evidence at all to support the factum of the petitioners being in

cultivating possession of the land. In support, learned counsel has

referred to the revenue records which stand annexed with his reply, by

urging that nowhere had the petitioners been recorded as being in

cultivating possession of the land in dispute. Rather it was evident from

the records that it was respondent No.5, who was owner in possession

of the land.

(ii) that the petitioners had been continuously extending

threats with respect to peaceful possession of respondent No.5 as a

result of which a civil suit for permanent injunction was instituted by

respondent No.5 against the petitioners in the year 2006 wherein relief

of temporary injunction was granted in his favour, and subsequently

even the suit was decreed in his favour. The said decree for permanent

injunction had since attained finality, as the appeal preferred by the

petitioners before the Lower Appellate Court stood dismissed and

thereafter the petitioners had not preferred any appeal against the same.

(iii) that statement (Annexure P-6) on which the learned senior

counsel has placed a great deal of reliance would have no relevance as

any statement made before the police has no evidentiary value. He

submits that mere pendency of a Regular Second Appeal, cannot be a

ground for quashing proceedings under Sections 145/146 of the Cr.P.C.

as in a suit for specific performance of agreement to sell, the petitioners

had not prayed for possession of the land, therefore, in the

circumstances, the Magistrate was well within his jurisdiction to

proceed under Section 145 of the Cr.P.C.

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4. I have heard learned counsel for the parties and perused the

relevant material on record.

5. The sole question which arises for consideration of this

Court is as to whether or not proceedings under Section 145 of the

Cr.P.C. could have been initiated by a Magistrate with respect to the

property during the pendency of a civil suit qua the same. The law in

the said regard has been well settled by the Hon'ble Supreme Court in

Ram Sumer Puri Mahant Vs. State of U.P. : (1985) 1 SCC 427,

wherein it was held as under:-

"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue......"

6. The Hon'ble Supreme Court in Amresh Tiwari Vs. Lalta

Prasad Dubey and another : (2000) 4 Supreme Court Cases 440 while

relying upon its decision in Ram Sumer Puri Mahant's case (supra)

also went on to hold that when possession of a property is being

examined by a Civil Court and the parties are in a position to approach

the Civil Court for adequate protection during the pendency of a

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dispute between them, parallel proceedings under Section 145 of the

Cr.P.C. should not be allowed. The Hon'ble Supreme Court in Amresh

Tiwari's case (supra) further held as under-

"14. Reliance has been placed on the case of Jhummamal alias Devandas versus State of Madhya Pradesh & Ors., reported in 1988 (4) S.C.C. 452. It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145 Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145 Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded Order under Section 145 Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An Order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumers case (supra) fully applies. We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings under Section 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil Court would be binding on the Magistrate."

7. Coming to the case in hand, it is a matter of record that

respondent No.5 had filed a suit for permanent injunction against the

petitioners in the year 2006 wherein temporary injunction was granted

by the Civil Court. Thereafter, the petitioners impugned the said order

of temporary injunction before the Lower Appellate Court and it was

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during the pendency of that appeal, proceedings under Section 145 of

the Cr.P.C. were initiated at the behest of respondent No.4-SHO Police

Station, Sindhwan Bet on 22.11.2017. In these circumstances, since the

suit for permanent injunction was still pending, there was nothing

which prevented the petitioners and respondent No.5 to approach the

Civil Court seeking protection of possession over the disputed land.

8. Since the question of possession of the parties over the

disputed land was sub judice before the Civil Court in a suit for

permanent injunction, the Magistrate could not have initiated parallel

proceedings under Section 145 of the Cr.P.C. qua the said property, and

between the same parties.

9. In the facts and circumstances as enumerated hereinabove,

when appreciated in the light of the law laid down by the Hon'ble

Supreme Court, the proceedings under Section 145 of the Cr.P.C.

pending before respondent No.2-Sub Divisional Magistrate, Jagraon,

District Ludhiana, and the order dated 22.11.2017 appointing a

Receiver under Section 146 of the Cr.P.C. deserves to be and are

accordingly quashed.

10. Accordingly, the instant petition stands allowed.

11. It is clarified here that anything observed hereinabove shall

not be construed to be an expression of opinion on the merits of any

other proceedings which may be pending between the parties.

29.04.2023                                  (MANJARI NEHRU KAUL)
Vinay                                              JUDGE

              Whether speaking/reasoned        :      Yes/No
              Whether reportable               :      Yes/No
                                                      Neutral Citation No:=2023:PHHC:061373

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