Judgment:
Mohd. Shamim, J.
1. This is a petition under Section 482 Cr.P.C. for quashment of the proceedings under Section 145 Cr.P.C. pending before the Sub Divisional Magistrate (South) and for setting aside the order passed under Section 145(1) Cr.P.C. and attachment order under Section 146(1) Cr.P.C. both dated July 31, 1992 in respect of premises bearing No. D-28, Kalkaji, New Delhi.
2. Brief facts which led to the present petition are as under : that the petitioner are a company registered under the Companies Act with their registered office at 17-18, Punj Lloyd House, Nehru Place, New Delhi. Shri G.V. Sharma is the Deputy General Manager (P&A;) of the petitioner company. He is duly authorised and competent to sign and verify the present petition and to present the same. The petitioner have been in possession over the premises No. D-28, Kalkaji, New Delhi (hereinafter referred to as the 'disputed property' for the sake of brevity) from April 1991 onwards by virtue of a tenancy agreement in between the petitioner and respondent No. 2. There were certain disputes with regard to the ownership of the disputed property in between respondents No. 2 and 3 and their other brothers co-owners regarding which several cases arc pending decision before different courts of law. Consequently, respondent No. 2 and his other associates made attempts to forcibly occupy the disputed property on May 26, 1992 and May 29, 1992. Respondent No. 2 and his associates have failed in their attempts. Having seen no alternative the petitioner filed a civil suit, No. 2143 of 1992, against respondent No. 2 and 3 and others for an injunction restraining them from dispossessing or interfering with the peaceful possession of the petitioner over the said property before the High Court of Delhi. The aforesaid court vide order dated June 3, 1992 passed an order directing the above-mentioned parties to maintain status quo in respect of the disputed property. The said order was duly served on the respondents. The petitioner also lodged reports with Police Station Kalkaji. The police were also duly informed with regard to the injunction order, alluded to above. The petitioner continued in actual physical possession over the disputed property till August 1, 1992. The police of PS Kalkaji visited the disputed property on August 1, 1992 in great number and directed the petitioner and their staff to vacate the disputed property and asserted that the disputed property had been ordered to be sealed and attached by the court of S.D.M. (South). After having taken control over the disputed property they served on the petitioner two orders dated July 31, 1992 purported to have been passed in proceedings under Section 145 Cr.P.C. The disputed property was being used by the petitioner for purposes of go down-cum-residence for guards of the petitioner. The petitioner were never a party to the above said proceedings under Section 145 Cr.P.C. The order adverted to above is a result of collusion in between the police and respondent No. 2. The above order was obtained by deliberately concealing the factum of possession of the petitioner over the disputed property and also by concealing the fact that the civil court had passed an injunction order for maintenance of status quo. The impugned orders under Sections 145(1) and 146(1) Cr.P.C. dated My 31, 1992 are illegal, without jurisdiction and void ab initio as the same were passed in utter disregard and disobedience of the order dated June 3, 1992 passed by the High Court of Delhi in Suit No. 2143|92. It has thus been prayed that the proceedings under Section 145 Cr.P.C. pending before the S.D.M. (South) in case State v. Shri V.P. Punj and Shri N. P. Punj be quashed and the orders dated July 31, 1992 passed under Sections 145(1) and 146(1) Cr.P.C. be set aside and the respondent No. 1 be directed to de-seal and restore the possession of the disputed property to the petitioner.
3. Respondent No. 2 has put in contest, inter alia, on the following grounds : that the present petition is wholly misconceived and not maintainable. The petitioner should have applied under Sub-section (5) of Section 145 Cr.P.C. for being imp leaded as a party to the proceedings under Section 145 Cr.P.C. and for cancellation of the impugned order passed by the learned S.D.M. The alleged tenancy agreement executed by respondent No. 3 in favor of the petitioner company dated March 15, 1991 is a forged and fictitious document. The aforementioned civil suit was filed by the petitioner with ulterior motive to provide cover to the illegal actions, and to pre-empt and forestall the initiation of the proceedings under Section 145 Cr.P.C. The court did not pass any restraint order and simply passed an order to maintain status quo with regard to possession. Shri S.N.P. Punj was never given authority to let out the plot in dispute by the other co-owners. Shri S.N.P. Punj as per the arbitration award was only entitled to 1/4th portion of the plot as a co-owner which was contingent on Shri S. P. Punj executing the necessary document in respect of Group II, comprising of V.P. Punj, N.P. Punj, R.P. Punj and S.N.P. Punj executing the necessary document in a posh locality. Its area is 2,000 sq. yards. Hence, it could not have been let out for a partly amount of rent i.e. Rs. 1,250 per month. The same has been le; out by Shri S.N.P. Punj i.e. respondent No. 3 to the petitioner company i.e. M/s. Punj Lloyd Pvt. Ltd., constituted of his two sons namely, Udai Prakash and Atul Prakash. The petitioner was never in possession of the disputed plot since April 1991 in any capacity whatsoever, much less as a tenant. Attempts were made by the petitioner, their hirelings and associates including Shri S.N.P. Punj, father of Atul Punj, Managing Director of the petitioner company to forcibly occupy the disputed property during the intervening night of 2nd/3rd June, 1992. They failed in their attempt and thereafter filed a civil suit with a view to forestalling the proceedings under Section 145 Cr.P.C. The mere pendency of a civil suit or the granting of an order of maintenance of status quo is not sufficient enough the oust the jurisdiction of the police or the Magistrate to initiate proceedings under Section 145 Cr.P.C. in case there is apprehension of breach of peace. The police authorities on account of innumerable reports to them with regard to the apprehension of breach of peace with regard to the possession over the disputed property presented a calendar before the Magistrate for initiating proceedings under Section 145 Cr.P.C. after taking legal opinion. The petition is false and frivolous and is thus liable to be dismissed.
4. It has been urged for and on behalf of the petitioner that there was no apprehension of the breach of the peace to warrant the initiation of proceedings under Section 145 Cr.P.C. by the magistrate. The present case is a case of a dispute in between the co-owners. Hence, the proceedings under Section 145 Cr.P.C. are not maintainable and are thus liable to be quashed. The next limb of the argument of the learned counsel for the petitioner Mr. J.P. Singh is that a competent civil court i.e. the High Court of Delhi was already in seizing of the matter when the learned magistrate passed the impugned orders dated July 31, 1992 under Sections 145(1) and 146(1) Cr.P.C; hence the impugned orders are liable to be set aside on this ground as well.
5. Counsel for the respondent No. 2, Mr. K.K. Sud, has urged to the contrary.
6. Learned counsel for the State Mr. R.K. Bahri has supported the impugned orders passed by the learned Magistrate and has thus strengthened the case of respondent No. 2.
7. Since we are concerned with the construction of Section 145(1) Cr.P.C. and Section 146(1) Cr.P.C., it would be in the fitness of things to examine the provisions of the said sections before proceeding any further in the matter as they are likely to help in resolving the controversy. Section 145(1) is in the following words :---
8. 'Whenever an Excusive Magistrate is satisfied from a report of a police officer or upon other information that a dispute is likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, staling the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute.'
9. A close scrutiny of the relevant provisions of law cited above would reveal that whenever a Magistrate comes to the conclusion either on the basis of a police report or on any other information that there exists a dispute which is likely to cause the breach of the peace it lays the foundation of his jurisdiction to initiate the proceedings under Section 145 Cr.P.C.
10. For an action under Section 146 Cr.P.C. the conditions precedent are :
(a) When the Magistrate is of the view that the case is of an emergent nature.
(b) When he is unable to decide as to which one of the parties was in possession of the subject matter of dispute.
(c) If he is of the opinion that none of the parties is in possession of the disputed property.
11. With the above background let us now see as to whether there was an immediate apprehension of the branch of pace Whether the situation was so explosive which would have grown into a conflagration had the magistrate not initiated the proceedings under Section 145 Cr.P.C. and not attacked the disputed property under Section 146 Cr.P.C.
12. The petitioner have themselves placed on record quite a good number of documents which go a long way to show and prove that there was an imminent danger of breach of the peace. In this connection I would first of all like to refer to an application dated May 30, 1992 addressed to the S.H.O., Kalkaji by the petitioner. I am tempted here to cite a few lines from the said application in order to substantiate my point. 'You may kindly note that the representative of Mr. V.P. Punj want to forcibly throw out security guards and dispossess us from the premises. We are apprehending danger to the lives of security guards and material. There is every likelihood of breach of peace'. In the second application dated June 3, 1992 the petitioner again request the police to protect their possession over property. Then there is the third application dated June 6, 1992 addressed to SHO, Kalkaji from the petitioner. There the petitioner herein talk in unequivocal terms of a scuffle in between their security guards and the persons belonging to the respondent. They have further admitted therein that one of their guards known as Gulab Singh sustained injuries at the hands of the opposite party.
13. The above documents, to cite only a few, go a long way to show and prove that there existed an apprehension of breach of peace. All the above documents are ante litem mortem the proceedings under Section 145 Cr.P.C. which were initiated on July 31, 1992. All the aforementioned are letters from the petitioner to the police. Thus, they are very much bound by them. They cannot wriggle out of the same.
14. Besides the above, there was a Calendar from the police dated July 21, 1992 presented before the magistrate where through he was requested to proceed under Section 145 Cr.P.C. and to attach the property in dispute under Section 146 Cr.P.C. failing which there was an imminent apprehension of breach of peace.
15. In addition to above, there is sufficient material on record placed by the respondent which is also a pointer to the fact that there was an apprehension of breach of peace and heads being broken, had the magistrate Hot acted in the manner he did. I need not go into them in view of the sufficient material placed on record by the petitioner themselves.
16. The next point raised by the learned counsel for the petitioner is that the present property in dispute is a joint property of the four brothers, namely V.P. Punj, S.N.P. Punj, R.P. Punj and N.P. Punj, vide award dated November 15, 1989 rendered by Shri S.C. Mathur. Hence, any dispute amongst co-owners cannot give a handle to the magistrate to initiate the proceedings under Section 145 Cr.P.C. A dispute between the co-owners cannot be the subject-matter of a proceeding under Section, 145 Cr.P.C. The contention of learned counsel at the first blush appears to be a specious one but if we go deeper into the matter we can safely conclude that it has got no legs to stand upon.
17. A close scrutiny of the material on record reveals that the present dispute in hand cannot be said to be simply a dispute between the co-owners. The petitioner herein are M/s. Punj Lloyd Private Ltd. They claim themselves to be the tenant of the disputed property under the respondent No. 3 vide tenancy agreement dated March 15, 1991 and rent receipt dated April 2, 1991; Thus the petitioner by no stretch of imagination can be said to be the co-owner's. Their own case is that they are the tenant under the respondent No. 3 on a monthly rental of Rs. 1,250.
18. The learned counsel for the petitioner in support of his contention has led this Court through the observation of a Single Judge of this. Court as reported in : 22(1982)DLT443 , Maya Devi and Ors. v. Bhagat Singh Bedi (1) (para 30) wherein it was observed..... 'Therefore, the case of Bhagat Singh Bedi at best can be a case of joint possession not exclusive possession. Where the parties are in joint possession of the property in dispute the magistrate has no jurisdiction to initiate proceedings under Section 145(1) Cr.P.C.'.
19. According to the facts of the said case the lock of the respondent was also found on the property in dispute Along with the lock of the petitioner as per the report of the local commissioner. Admittedly, this is not the case of the petitioner in the present case. For the best reasons known to them they did not get any commissioner appointed in order to show and prove that they are in possession over the property in dispute Along with the respondent.
20. However, they have tried to draw sustenance from the rent deed dated March 15, 1991 and April 2, 1992 which have been placed on record by the respondent. I am not prepared to place much reliance on the said documents since they are of no help to the petitioner. It is a rent deed executed by father Shri S.N.P. Punj, respondent No. 3, in favor of the petitioner in respect of plot of land D-28, Kalkaji measuring 2,000 sq. yards for a partly amount of rent i.e. Rs. 1,250 per months. Shri Atul Prakash Punj and Udai Prakash Punj are the Managing Director and Director of the said company. They are admittedly the sons of Shri S.N.P. Punj. Thus, the present case is a case of a father executing a rent agreement in favor of his son in respect of a plot of land which is situated in posh locality of South Delhi for a meagre amount of rent i.e. Rs. 1,250 per mensem. Thus, prima facie it appears to be a murky and shady dealing. It does not inspire confidence. Had the said plot of land been genuinely let out it could have fetched fabulous rent. It thus does not inspire confidence.
21. There is another facet of this many cornered maze. Admittedly, Shri S.N.P. Punj is one of the co-owners of the disputed property as per the arbitration award alluded to above which has been accepted by him. . Thus, he is entitled to one-fourth share in the said plot. Thus, how he could have let out the same without the consent of the other co-owners is a mystery which has not been unravelled by the petitioner. Thus, the respondent No. 3 was not competent to let out the disputed property. As a corollary whereof he cannot be said to be rightful claimant of the said plot under the said agreement.
22. The respondent No. 2 in his reply to the present petition has states that the alleged rent deed adverted to above is a sham and bogus transaction brought into existence with ulterior motives to cover the illegal actions of the petitioner and respondent No. 3. Attempts were made under the said rent deed to grab the disputed property during the intervening night of 2nd and 3rd June, 1992. No rejoinder/replication was filed to the said reply. Hence, the petitioner would be deemed to have admitted and acquiesced in the facts stated therein.
23. It has next been contended by the learned counsel for the petitioner that the impugned orders were passed on July 31, 1992 in respect of the disputed property. On the said date an injunction order dated June 3, 1992 passed by a Civil Court with regard to the disputed property was in operation. The parties through the said order were directed to maintain status quo with respect to the disputed property. Hence, according to the learned counsel, the learned magistrate was not empowered to pass the impugned orders. They are as such void ab initio and are thus liable to be quashed on this short ground alone. The learned counsel in support of his contention has relied upon the observations of a Single Judge of this Court as reported in 1985 C.C. 393 Indu Bhai Patel and Ors. v. State and Ors. (2). It was observed by the learned Judge in the said case..... 'The existence of an order of injunction of a civil court creates a complete bar to the passing of an order under Section 145/146 Cr.P.C. subsequently. Thus finality is attached if the order is just, proper and legal in the circumstances of a particular case. The S.D.M. cannot be allowed to travel beyond the narrow compass of his powers under Cr.P.C. vis-a-vis the orders of a competent Civil Court'. According to the observations of the said authority the magistrate should cover at the sight of an order passed by a competent. Civil Court, in respect of the disputed property, and should slink away, and not interfere therewith.
24. The learned counsel for the respondent on the other hand has argued to the contrary. It has been urged on behalf of the respondent that the ratio decidendi of the said case is based on the observations of their Lordships of the Supreme Court in. : AIR1985SC472 Ram Sumer Puri Mahant v. State of U.P.(3) as cited in para 15 of the said judgment. The learned counsel further contends that the learned Judge while holding so (as extracted above) construed, amiss the observations of the Hon'ble Supreme Court. I find myself in perfect agreement with the learned counsel for the respondent. After going through Ram Sumer Puri's case (supra) I find that according to the facts of the said case a decree in the title suit No. 87/75 in respect of the property in dispute had already been passed by Civil Judge, Ballia wherein the question of title had already been gone into vide judgment dated February 28, 1981 and the suit was dismissed. It was in the above said circumstances that their Lordships held'. 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 was no scope to doubt or dispute the position that the decree of the Civil Court is bind on the Criminal Court in a matter like the one before us'.
25. The facts thus before the Supreme Court were altogether different from the facts of the case of Indu Bhai Patel and the law as laid down by the Supreme Court, in my humble opinion, should not have been made applicable to the aforesaid case.
26. In the circumstances stated above, I am of the view that the facts of the present case are dis-similar to the facts of the case in Ram Sumer Puri's case (supra) which were before the Hon'ble Supreme Court. Hence, the observations made in the said judgment are not at all attracted to the case in hand and the petitioner as such cannot base their claim on the said authority.
27. What I have stated above is fully substantiated from the observations of their Lordships of the Supreme Court as reported in : 1989CriLJ82 , Jhunamal alias Devandas v. Madhya Pradesh and Ors.,(4) I am tempted here to reproduce a few lines from the above said authority in order substantiate my point. 'It will be obvious from the order of the High Court that the decision of this Court in Ram Sumer's case : AIR1985SC472 has been totally misunderstood. In that case, a title suit for possession and injunction in respect of certain property was instituted before the Civil Court. The suit was dismissed on February 28, 1981. The matter was taken up in appeal. When the appeal was pending for disposal, proceedings under Section 145 Cr.P.C. were initiated with regard to the same property. In that proceedings the Magistrate passed a preliminary order under Section 145(1) of the Cr.P.C. and also attached the property. The aggrieved party challenged that order in a revision petition before the Allahabad High Court. The High Court refused to interfere with that order. But this Court quashed the proceedings under Section 145 Cr.P.C. observing :....'
28. Learned counsel for the petitioner has then drawn my attention to the observations of their Lordships of the Supreme Court as reported in : 1993CriLJ1049 , Dharampal and Ors. v. Smt. Ramshri and Ors. (5) in support of his contention that the moment an injunction is passed by a competent Civil Court the Criminal Court is to fold, its hand and can no more continue with the proceedings under Section 145 Cr.P.C. and the said proceedings come to an end automatically by virtue of the said order passed by the Civil Court. I am sorry I am unable to agree with the contention of the learned counsel. A perusal of the facts of the authority adverted to above reveal (vide para 2) that the appellants in the said case filed a suit for permanent injunction against the first respondent and her husband and claimed an interim injunction against them. The trial court dismissed the application for interim application. Against the order of the dismissal the appellant filed an appeal to the District Court and the appellate court vide its order dated May 18, 1978 allowed the appeal and issued an interim injunction against the respondent and her husband.
29. It is thus manifest from above facts that the rights of the parties in the said case had already been decided by an interim order passed by the appellate court against the order of dismissal of the injunction application passed by the lower court. It was in the above said circumstances that their Lordships of the Supreme Court held (vide para 9)'.... . .It is obvious from Sub-section (1) of Section 146, that the Magistrate is given power to attach the subject of dispute 'until the competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof'. The determination by a competent Court of the rights of the parties spoken of there has not necessarily to be a final determination. The determination may be even tentative at the interim stage When the competent Court passes an order of interim injunction or appoints a receiver in respect of the subject-matter of the dispute pending the final decision in the suit......'.'
30. The facts of the case in hand are not similar to the facts of the above case inasmuch as there has not been determination, even tentative, at aft interim stage with regard to the rights of the parties. What the Civil Court had granted is simply an order with regard to the status quo to be maintained by the parties. It implies thereby that the parties have been directed to remain there where they are and there is no interim decision with regard to the rights of the parties, even by an interlocutory order.
31. Chapter X of the Code of Criminal Procedure deals with. the maintenance of public order and tranquillity. Thus, a duty has been cast on the shoulders of the Magistrate to take preventive measures as and when he apprehends that there is an apprehension of the breach of the peace in the areas situated within his jurisdiction. Thus, he would be failing in his duly in case he does not proceed under Sections 145/146 of the Cr. P.C. in case he apprehends that there is imminent danger to the peace and tranquillity in the area. If he is required to fold his hands at the mere passing of a status quo order or an ex parte injunction order then it may lead to dire consequences. More often than not it has been observed that the parties try to violate the said orders and the said orders are observed in their breach which lead to violence and breaking of heads and loss of precious lives in case mischief is not nipped in the bud. This he can do so only by having a recourse to the provisions of Section 145/146 Cr.P.C. I am supported in my above view by quite a good number of authorities cited at the bar by learned counsel for the respondent. The above view was given vent, to by their Lordships of the Supreme Court as reported in UJ (SC) 1970 75, Sajjan Singh v. Sajjan Singh(6). Their Lordships opined... 'The High Court held that both the order of attachment of the house and the appointment of receiver were valid and that the Civil Court's temporary injunction had no effect upon the proceedings before the Sub Divisional Magistrate. In this appeal the order of the High Court is questioned.
32. In our opinion, this case must go back to the Sub Divisional Magistrate for decision of the proceedings before him. Those proceedings commenced as far back as 1967 and the question whether there is or there not any apprehension of breach of peace will certainly have to be decided in the light of the happenings in the Civil Court. In the meantime, we do not see any reason to order the setting aside the order of the High Court. It will be open to the Sub Divisional Magistrate to consider whether the receiver should be continued or not, but in any event, he shall not disturb the possession of Sajjan Singh sen of Jagannath Singh so long as the temporary injunction is outstanding and pending the decision of the proceedings under Section 145 of the Code of Criminal Procedure with a view to handing over the possession to the other side.... '.
33. It is fully manifest from above that A mere grant of the temporary injunction by the Civil Court will not ipso facto operate as a bar to the proceedings under Section 145 of the Cr.P.C. by the Magistrate. The above polemical issue as to what is the effect of the injunction order on the proceedings under Section 145 Cr.P.C. came up for consideration before a Division Bench of the Punjab & Haryana High Court as reported in 1977 Crl. L.J. 1029, Mohinder Singh v. Dilgabh Rai (7). It was observed (vide paras 13 and 18).... 'The pendency of the same matter between the same parties in Civil Court does not mean the ouster of the jurisdiction of the Executive Magistrate under Section 145, Criminal Procedure Code in spite of the stay orders....'. It was further observed (vide para 11) 'The third type of cases, that is, maintenance of status quo during the pendency of the civil suit is a situation in which a Civil Court does not prima facie feel satisfied about any party being in possession of the subject-matter of the suit. In such cases when both parties claim possession, dangerous situation can develop with the anxiety of both or any of them to get into actual possession, if the situation deteriorates then the police or the Magistrate cannot act as silent spectators to witness the breach of the peace. If they act in such circumstances and the Magistrate attaches the subject-matter of the dispute under Section 145, Criminal Procedure Code then he would be acting to defend the maintenance of the status quo as ordered by the Civil Court'.
34. Such situations are not apparently hypothetical or conjectural but do occasionally arise in the Courts. The position, that the Magistrate under Section 145, Criminal Procedure Code cannot continue with the proceedings when the Civil Court is seized of the case or pass injunction orders referred to above, if accepted, can lead not only to breach of the peace but also to disrespect to the orders and the process of the Civil Courts....'.
35. The above view was also upheld by the following authorities :--
(1) 1988 91 C.C. 437 Man Singh v. State of Haryana and Ors.(8).
(2) 1987 C.C. 75 Jagdish v. Sub Divisional Magistrate and Ors.(9).
(3) 1987 C.C 273 Ram Phal v. Harish Chand and Anr.(10).
: 19(1981)DLT450 Ashrafi Lal v. Lal Singh and Ors.(11).
1972(1) CRIMES 309 Major Singh & Ors. v. Angrez Kaur and Ors. (12).
36. In view of the above I do not see any justification to interfere with the impugned judgment and order passed by the learned lower court. I do not sec any force in the present petition. It is hereby dismissed.