Chanchal Singh vs Sujan Singh

M.L. Singhal, J.

This is criminal revision No. 3 of 1994 directed against the order of Sub Divisional MagistratecumExecutive Magistrate, Hoshiarpur dated 8.12.1993 passed under Section 145(1) of the Code of Criminal Procedure, whereby Sub Divisional MagistratecumExecutive Magistrate, Hoshiarpur ordered the possession of the property of Hoshiarpur Express Transport Company Ltd., Hoshiarpur attached and entrusted to the receiver to be restored to the second partyviz. Chairman Sujan Singh, Principal Khalsa College, Garshankar and Sucha Singh son of Jagdev Singh resident of village Tutto Majra, now village Kundla Police Station, Garshankar.

There existed dispute regarding the possession of the office buildings of the Hoshiarpur Express Transport Company Limited, Hoshiarpur between the partners and workers of the said Transport Company, giving rise to apprehension of breach of peace between the partners and workers, the bone of contention being the said property. Police of Police Station Model Town, Hoshiarpur accordingly initiated proceedings under Section 145 of the Code of Criminal Procedure between Chanchal Singh son of Sh. Hukam Singh, resident of Lehli Kalan, Police Station Sadar, Hoshiarpur and Gurmail Singh, Director s/o Bawa Singh, resident of village Jian, Police Station Sadar, Hoshiarpurfirst party and Chairman Sujan Singh, Principal, Khalsa College, Garshankar and Sucha Singh son of Jagdev Singh, resident of village Tutto Majra, now village Kundla Police Station Garshankarsecond party, upon being satisfied that there was a dispute giving rise to breach of peace regarding possession of the office buildings of the Hoshiarpur Express Transport Company Pvt. Limited between the "first party" and the "second party", and the said dispute could give rise to breach of peace between them and order under subsection (1) of Section 145 of the Code of Criminal Procedure was passed by the Executive Magistrate directing the parties to attend the court in person or through their pleaders. Notice was served on both the parties. In the meantime, proceedings under Section 146 of the Code of Criminal Procedure were initiated and Tehsildar, Hoshiarpur was appointed as receiver to take possession of the office building of the Hoshiarpur Express Transport Company and keep possession thereof and hold it under attachment until the decree or order of competent court determining the rights of the parties or claim to possession shall have been obtained by the parties. On 25.1.1993, Sh. Jaswant Singh, SI/SHO Police Station, Model Town, Hoshiarpur submitted second Kalendra relating to buses and workshop of the said transport company on being satisfied that there was likelihood of breach of peace between the partners. Executive Magistrate on being satisfied that there was a dispute existing with regard to the buses and workshop of the said transport company which could give rise to breach of peace passed an order under Section 145 of the Code of Criminal Procedure. Tehsildar, Hoshiarpur was appointed as receiver under Section 146 of the Code of Criminal Procedure. He was to take charge of the accounts and general administration in respect of the workshop and the buses of the said transport company until decree or order of competent court determining the rights of the parties or claim to possession shall have been obtained by the parties. The said receiver took over the charge, in compliance with the orders dated 25.1.1993 of the workshop and the buses of the said transport company. Vide order dated 1.2.1993 Sub Divisional MagistratecumExecutive Magistrate, Hoshiarpur fixed 2% out of the income of the company as remuneration of the receiver.

Parties were directed to produce oral or documentary evidence with regard to their respective claims to the properties of the company namely M/s. Hoshiarpur Express Transport Company Pvt. Ltd. As per impugned order first partyChanchal Singh and another was given several opportunities to produce evidence in support of their claim. Instead of producing evidence in support of their claim, first party gave one application or the other, as per the impugned order to delay the proceedings. Second party produced some documents and affidavits in support of their claim. In the meantime Sh. Mohinder Singh, Director of the Hoshiarpur Express Transport Company Private Limited moved petition in this Court under Section 482 of the Code of Criminal Procedure for setting aside the order/warrant of attachment dated 13.1.1993 and also the appointment of Tehsildar as receiver of the office buildings of the company. Vide order dated 2.11.1993 passed in criminal Misc. No. 1692M of 1993, this Court dismissed that prayer. At the same time, this Court quashed the order passed by the Sub Divisional MagistratecumExecutive Magistrate dated 1.2.1993 and directed the fixation of the remuneration of the receiver commensurating with his status. Rs. 3,000/ PM was accordingly fixed as remuneration of the Tehsildar, Hoshiarpur (receiver) from the date he took the charge of the properties of the company. As per the impugned order second party produced affidavits of 12 directors of the Hoshiarpur Express Transport Company. Out of these 12 directors, 10 directors appeared before the Sub DivisionalcumExecutive Magistrate on 8.12.1993. Sh. Sujan Singh Sahota and Sucha Singh made statements in support of their case. They stated that there are only 17 directors of the company in all. They stated that at the time of taking possession by the receiver and even earlier, i.e. 9.11.1992, they were in possession of the entire property of the company. They also stated that they were shareholders holding major share of the company.

The other 13 directors of the company supported Sujan Singh in this behalf. As per the impugned order, the first party could not lead evidence to the contrary whether oral or documentary. As per the impugned order, Sub Divisional MagistratecumExecutive Magistrate did not feel apprehension of breach of peace when 14 out of 17 directors had sworn affidavits in favour of Sujan Singh Sahota's management of the company. As per the impugned order the second party was in possession of the entire property in dispute at the time when order dated 25.1.1993 under Section 145(1) of the Code of Criminal Procedure was passed and earlier thereto also, the second party was in possession of the entire property in dispute at the time when order dated 25.1.1993 under Section 145(1) of the Code of Criminal Procedure was passed and earlier thereto also, the second party was in possession of the entire property of the company. Sub Divisional MagistratecumExecutive Magistrate, held the second party to be entitled to be restored to possession of the entire property of the Hoshiarpur Express Transport Company Pvt. Ltd. Receiver was directed to hand over possession alongwith necessary documents and record to the directors of the said company who were 14 in number. Receiver was further directed to refund the excess commission received by him to the said company. In compliance with the order of Sub Divisional MagistratecumExecutive Magistrate dated 25.1.1993, the first party was forbidden from disturbing the possession of the second party until evicted therefrom in due course of law.

M/s. Hoshiarpur Express Transport Company Pvt. Ltd. is owning fleet of 28 buses. The prayer of the petitionerChanchal Singh is that the impugned order be set aside and the matter be remitted for proper enquiry to the Executive MagistratecumSub Divisional Magistrate, Hoshiarpur with the direction to afford full opportunity to the petitioner to lead evidence to show that the petitioner was in possession of the property as chairman on the date when proceedings under Section 145 of the Code of Criminal Procedure were initiated. It is stated in this revision petition that Chanchal Singh was elected as Chairman of the company through proper election on 21.12.1991. It is stated that the finding of the Executive MagistratecumSub Divisional Magistrate that several opportunities had been given to Chanchal Singh petitioner to produce evidence is wrong. On 4.2.1993 quashing petition was filed by the other party in this Court and by that time no affidavit or evidence was produced by any of the partners. On 2.11.1993 the petition of Mohinder Singh was dismissed. On 24.11.1993 Executive Magistrate recorded the following order on file which runs as under :

"Parties present. The second party Mohinder gave an application that as per order of the Hon'ble High Court, before refixing the amount of the receiver, cash book and vouchers be called from the receiver. It is directed to Tehsildar, HoshiarpurcumReceiver, Hoshiarpur Express Transport Company to submit the record by 2.30 PM today. Now to come up on 25.11.1993."

The proceedings recorded on 25.11.1993 read as follows :

"Parties present. Counsel for the second party also present. He was heard. As per order of the High Court, the amount of the receiver refixed. He is directed to produce the concerned record by tomorrow in this Court. Now to come up for the evidence of Chanchal Singh for 8.12.1993."

It is stated that 8.12.1993 was the first date for Chanchal Singh to lead evidence. On 8.12.1993 Sh. Chanchal Singh learnt that the Presiding Officer Shri M.G. Acharya, Sub Divisional Magistrate, Hoshiarpur had come under the influence of Kabul Singh Kaloya, Secretary, Communist Party of India, District Hoshiarpur and thereafter Chanchal Singh moved an application for transfer of the case before the Sessions Judge, Hoshiarpur on 6.12.1993. The Sessions, Judge, Hoshiarpur sought comments of Sh. Acharya for 23.12.1993. Shri J.S. Parmar, counsel for the petitioner moved an application early in the morning on 8.12.1993 for personal exemption to Chanchal Singh as the fatherinlaw of the son of Chanchal Singh had died a few days ago and his Bhog ceremony was fixed for 8.12.1993. He sought short adjournment to lead evidence. It is stated that the presence of Chanchal Singh was essential on the occasion of Bhog ceremony of his Kuram when his son (whose fatherinlaw he was) was putting up abroad. Shri J.S. Parmar, counsel for the petitioner went to the court of Sub Divisional MagistratecumExecutive Magistrate at 11.00 AM, 12.30 P.M. and thereafter at 2.30 PM but no order had been passed on the said application. Sub Divisional MagistratecumExecutive Magistrate told Sh. Parmar that he would decide the application at 4.00 PM. He dismissed the application and decided the proceedings under Sections 145/146 Cr.P.C. and ordered the giving of possession of the property in dispute to respondents No. 1 and 2. It is stated that statements of Sucha Singh and Sujan Singh Sahota were not recorded in Court. The petitioner applied for the copies of the statements of Sujan Singh and Sucha Singh and that application was returned to the petitioners with the remarks dated 21.12.1993 that both these statements were unsigned; as such, copies could not be given. For 8.12.1993, case was fixed for evidence of Chanchal Singh only and not for the evidence of the respondents. It is stated that it is sad and strange how this evidence was recorded and that too without affording any opportunity for the cross examination of the witnesses. There has been violation of the provisions of subsection 4 and subsection 9 of Section 145 of the Code of Criminal Procedure on the part of the Magistrate who did not give proper opportunity to the petitioner to lead evidence and then crossexamine witnesses of the opposite party. The learned Magistrate did not give any findings as to which party was in possession on 13.1.1993 i.e. when he passed the order under Section 145 of the Code of Criminal Procedure. With regard to possession, this provision is mandatory. It is stated that perusal of the various zimini orders would suggest that 8.12.1993 was the first effective date given for leading evidence to the petitioner.

Section 145 of the Code of Criminal Procedure reads as follows :

"Procedure where dispute concerning land or water is likely to cause breach of peace

(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his jurisdiction, he shall make an order in writing, stating 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 statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(2) For the purpose of this section, the expression "land or water" includes building, markets, fisheries, crops or other produce of land and the rents or profits of any such property.

(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under subsection (1), in possession of the subject of dispute.

Provided that if it appears to the Magistrate that any party has 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), he may treat the party so dispossessed as if that party had been in possession on the date of his order under subsection (1).

(5) 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.

(6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to subsection (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed.

(b) The order made under this subsection shall be served and published in the manner laid down in subsection (3).

(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceedings is, all persons claiming to be representatives of the deceased party shall be made parties thereto.

(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the saleproceedings thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107."

It is, thus, clear from the provisions of subsection (4) of Section 145 of the Code of Criminal Procedure that the Magistrate shall peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under subsection (1), in possession of the subject of dispute. Subsection (9) of Section 145 of the Code of Criminal Procedure lays down that the Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

Learned Counsel for the petitioner submitted that in this case, learned Magistrate seems to have been overanxious to decide the matter in favour of the respondents i.e. first party. On 24.11.1993 both the parties were present. Mohinder Singhsecond party moved an application as per the High Court order before refixing commission of receiver that cash book, vouchers etc. be called from the receiver and the receiver was asked to produce the record. He was given time to produce the record till 2.30 PM on 24.11.1993. On 25.11.1993 parties were present. Counsel for the second party i.e. Chanchal Singh was present. JUDGMENT recorded on 25.11.1993 passed by the learned Magistrate indicates that counsel for the second party was heard. As per the order dated 2.11.1993 of the High Court commission of receiver was fixed. Receiver was directed to produce the relevant record till 26.11.1993 and the case was posted for the evidence of Chanchal Singh for 8.12.1993. On 8.12.1993, the order passed by the learned Magistrate indicates that the case was called. None was present for the first party. The second partySujan Singh and Sucha Singh with counsel was present. With them 10 more directors of the company were present. Case was called at 2.30 PM. At 2.30 PM none was present for the first party. Case was called at 3.30 PM. Even then none was present for the first party. Sh. J.S. Parmar, Advocate for the first party came present for the first time at 3.45 PM. He moved an application for adjournment. Both the parties were heard on the application and after hearing, he felt that the counsel for the first party wanted to prolong the case without any reason. He rejected the application. Learned Counsel for the petitioner submitted that the Sub Divisional MagistratecumExecutive Magistrate, Hoshiarpur was tilting in favour of second party and on 6.12.1993 first party had moved an application Annexure P1/A before the Sessions Judge, Hoshiarpur asking for the transfer of proceedings under Section 145 of the Code of Criminal Procedure pending before him between Chanchal Singh and anotherfirst party and Sujan Singh and another second party. In the transfer application, he had indicated that respondents No. 2 and 3 and other directors of their party namely Manjit Singh Lali etc. are facing trial regarding the murder of Surjit Singh Mann on the same occurrence on which proceedings under section 145 of the Code of Criminal Procedure had been initiated. It was further alleged that respondent No. 3 was a District Secretary of the Communist Party of India, Hoshiarpur and was heading this faction in political circle as well as in official circle. He was a member of the District Planning Board and being head of his party and member of the various political organisations, he was wielding great influence over the Sub Divisional Magistrate, Hoshiarpur and the Sub Divisional Magistrate was under his influence and he was constantly meeting the Sub Divisional Magistrate in private as well as in public. On 8.12.1993 Shri J.S. Parmar, counsel for the first party moved an application for personal exemption from personal appearance of Chanchal Singh saying that fatherinlaw of his son had died and he was to attend bhog ceremony in connection with his death fixed for 8.12.1993. He stated in that application that the presence of Chanchal Singh was highly necessary on that bhog ceremony as his son was living abroad. He also swore affidavit before this Court that he went to the Court of the Sub Divisional Magistrate at 11.00 AM, 12.30 PM and then at 2.30 PM. He also told the Executive Magistrate that Chanchal Singh had already moved an application for transfer of the case from his Court and the next date fixed in the transfer application was 23.12.1993 and till then further proceedings be not taken in proceedings under Section 145 of the Code of Criminal Procedure pending before him. He further swore in affidavit that at 2.30 PM on 8.12.1993, Executive Magistrate told him that he would decide the application for exemption at 4.00 PM. He immediately dismissed the main application and decided the case ordering possession of the property in dispute to respondents No. 1 and 2. He further swore in affidavit that no evidence of the respondents was recorded that day in the open Court and if anything was done that was done at the back, may be in the house of the Executive Magistrate.

Learned Counsel for the petitioner submitted that justice should not only be done but it should appear to have been done is a well known maxim quite well known to those who are concerned in the administration of justice. He submitted that adjournment was necessitated because of the circumstances which were beyond the control of the first party and the Executive Magistrate should have appreciated the predicament of the first party and allowed them adjournment, particularly when there was no gain to the first party and no loss to the second party because receiver was in possession of the property in dispute and he was running the business of the Hoshiarpur Express Transport Company Private Limited.

It was further submitted that on 25.11.1993 the case had been posted for evidence of the first party only. If the Executive Magistrate did not want to grant adjournment to the first party for the production of their evidence, he should have adjourned the case for the production of evidence of the second party and he should not have hurried up and considered the affidavits of the second party alone and decided the proceedings. He should not have recorded the statements of Sujan Singh and Sucha Singhsecond party and hastened to decide the proceedings. Learned Counsel for the petitioner submitted that the Executive Magistrate violated the provisions of subsection (4) of Section 145 of the Code of Criminal Procedure inasmuch as he had not given adequate opportunity to the first party to produce their evidence. He should have at least posted the case to some other date and then enabled the first party to crossexamine the witnesses of the second party. It was also submitted by him that the order passed by the Executive Magistrate is truncated inasmuch as he did not consider the other documentary evidence on record. He did not discuss the affidavits produced by the first party in support of their claim. The first party had made an application for the summoning of the witnesses and had deposited the process as is apparent from the zimini order recorded on 26.4.1993. On 20.5.1993 the counsel for the second party was not present to crossexamine the witnesses of Chanchal Singh. Witnesses of Chanchal Singh were present on 4.6.1993 as is apparent from the zimini order but counsel for the second party was not present. On 16.6.1993 adjournment was taken by the second party on the pretext that a compromise was going on. On 24.6.1993 and 2.7.1993 as is clear from the zimini orders, counsel for the second party was not present. On 23.7.1993 Presiding Officer adjourned the case due to flood condition. On 5.8.1993 and 16.8.1993, he was on leave. On 27.8.1993 officers were on strike. On 6.9.1993, none was present on behalf of the parties. On 15.9.1993 there was strike of the lawyers. On 27.9.1993 counsel for the respondents was not present. On the strength of these zimini orders, learned Counsel for the petitioner submitted that not that the first party was interested in prolonging the case, rather the second party was interested in prolonging the case.

It was observed in Lunkhothang Mangru and anotherpetitioners v. Mochom Anal Thumbol Analopposite party, AIR 1960 Manipur 43 by the learned Judicial Commissioner that in proceedings under Section 145, the Magistrate had no jurisdiction to dispose of the case on a day to which it had not been posted for hearing. It is a wellestablished principle of legal procedure and substantive law that Court should give an opportunity to both parties to place their respective cases before it on a day fixed for the hearing of the case. It is based on the maxim that no man should be condemned without a hearing. Any order passed in disregard of this principle is irregular and has to be set aside.

It was held in Murari Patel v. Purusottam Bhati, AIR 1965 Orissa 208 that when affidavits substitute evidence, it is the bounden duty of the Magistrate to examine carefully the affidavits of each deponent. He must give clear reasons for accepting or rejecting the affidavit as is done in weighing oral evidence. The order of the Magistrate must indicate that he had applied his mind to the affidavits. No hard and fast rule can be laid down as to how the affidavits are to be assessed. But all that is to be emphasised is that the affidavits cannot be dealt in a perfunctory manner by general observations. The salutary principle is that they should be weighed as oral evidence as was being done prior to the amendment.

In this case the Magistrate did not advert at all to the weighing of affidavits brought on record by Chanchal Singh and his witnesses. It was submitted by the learned Counsel for the petitioner that the learned Magistrate had posted the case to 8.12.1993 for the evidence of the first part only. On 8.12.1993 if he felt that no adjournment be given to the first party for producing evidence, learned Magistrate should have closed the evidence of the first party. He should have posted the case to some other day for the production of evidence by the second party.

It was next submitted that all that the learned Magistrate should have done was as to whether the first party or the second party was in possession of the property in dispute on the date of the preliminary order and two months preceding it. He could have directed the receiver to handover the possession to that party which according to him was in possession within two months preceding the date of preliminary order and he could not hold that this party or that party is entitled to possession. Question of title is foreign so far as proceedings under Section 145 of the Code of Criminal Procedure are concerned. In support of this submission my attention was drawn to Raghubir Singh v. Gram Samaj Kotra through Ram Asre, 1964 Allahabad 394 where it was held that in a proceeding under Section 145 the main question to be decided by the Magistrate is as to which of the parties is in actual possession of the property in dispute on the date of the preliminary order and two months preceding it, he must record a clear finding on that point, he cannot decide the question of title and on that basis decide possession.

In my opinion, there was no warrant for the learned Magistrate to have refused adjournment to the first party on 8.12.1993 for producing its evidence, particularly when learned Counsel for the first party had brought it to his notice that they did not have faith in him as regards his impartiality and they had moved an application for transfer in the Court of Session. He should have granted them adjournment for producing their evidence when adjournment had been occasioned by circumstances beyond their control. Heavens were not going to fall if adjournment had been granted. Courts of law are meant to do justice. Their duty is to demonstrate that justice is actually being done and they should demonstrate so by their conduct. So the impugned order dated 8.12.1993 is set aside and the case is remanded and this criminal revision is accepted and the learned Sub Divisional Magistratecum Executive Magistrate, Hoshiarpur other than Dr. M.G. Acharya if he is still posted there, is directed to allow the petitioner adequate opportunity to produce their evidence. After the petitioner(s) have led their evidence, he will record the evidence of the respondents i.e. second party. He will thereafter decide the case after hearing both the parties/counsel in accordance with law. If possession has been delivered to the second party by the receiver in pursuance of the order dated 8.12.1993 ibid, their possession shall not be displaced. Learned Magistrate will decide the proceedings under Section 145 of the Code of Criminal Procedure within 4 months of the receipt of copy of this order. Parties through their counsel are directed to appear before the learned Magistrate on 1.12.1998.