Baljor Singh & others vs State of Haryana & others

V.K. Bali, J.

Baljor Singh and others through present petition filed by them under Section 482 of the Code of Criminal Procedure seek quashing of the proceedings initiated against them under Section 145 of the Code of Criminal Procedure by the Sub Divisional Magistrate, Panipat as also order, Annexure P4, vide which the land, subject matter of dispute, was put under attachment.

In consequence of notice issued by this Court, respondents were served. On the last date of hearing, on the request of learned counsel for the respondents, one last opportunity was granted to file reply. However, no reply has been filed till date.

It is so pleaded and argued by learned counsel for the petitioners that the land, subject matter of dispute, was in possession of Jogi Ram, father of petitioners, and way back in 1989 a decree was passed with regard to this land by the Addl. Senior Sub Judge holding that Jogi Ram was in possession. The decree, of course, was for permanent injunction restraining the respondents in the said case so as not to interfere in the possession of Jogi Ram. In face of this decree, it is strenuously argued by learned counsel for the petitioners that the proceedings under Section 145 Cr.P.C. are wholly incompetent.

I have heard learned counsel for the parties and gone through the records of the case. Petitioners do have an alternative remedy under Subsection (5) of Section 145 Cr.P.C. Concededly, so far the magistrate dealing with the matter has passed an order under Subsection (1) of Section 145 Cr.P.C. and thereafter attached the property in dispute on the same day. There was, thus exparte representation before the Magistrate concerned. It was open to the petitioners to have availed an alternative remedy available to them under Section 145(5) Cr.P.C. which reads thus :

"Nothing in this Section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation the order of the Magistrate under subsection (1) shall be final."

However, the fact that the decree has been granted in the manner detailed above could not be disputed by learned counsel for the respondents and even though there is an alternative remedy available to the petitioners, in the peculiar facts and circumstances of this case, it is ordered that the impugned orders shall not be implemented and if the same have been implemented, possession of land measuring 18 kanals 12 marlas, reference of which has been given in the judgment and decree, Annexure P.1, should be restored to the petitioners. The proceedings may continue but it shall be open to the petitioners to invoke the provisions of Section 145(5) Cr.P.C. and the Magistrate concerned would order attachment of the land only when the application so filed by the petitioners is disposed of and that too by a speaking order.

Parties through their counsel are directed to appear before the Sub Divisional Magistrate, Panipat, on 11.5.1995.

JUDGMENTed accordingly.