Gubachan Singh and anr. vs State of Punjab and ors.

A.S. Bains, J.

Petitioner No.1 is the owner in possession of the land in dispute, situated in village Gauna in Tehsil Phillaur, district Jalandhar and petitioner No.2 used to cultivate that land. It is alleged in the petition that petitioner No.1 and respondent No.2 are real brother. On 18th February, 1976, petitioner No.1 had executed a registered General Power of Attorney in favour of respondent No.2 (his brother) regarding the Management of the land in dispute, but that power of attorney was cancelled on 22nd March, 1976. On the same day petitioner No.1 executed another power of attorney in favour of respondent No.2 with regard to his limited estate of 14 kanals of land situated in village Gauna Find only. This power of attorney was also cancelled on 15 May, 1980. It is further alleged that respondent No.2 in the meantime clandestinely sold the land to respondent No.3 as attorney of the petitioner No.1, vide registered sale deed dated 5th September, 1980, after entering into a conspiracy with respondent No..3 and others. It is alleged that petitioner No. 1 remained in possession of the land in dispute, from 25th July, 1979 till 5th September, 1980, and even thereafter. When he came to know of the aforesaid deal of respondent No.2 with respondent No.3 he filed a criminal complaint under sections 406/420/120B and 109 of the Indian Penal Code, against respondent No.2 (his brother) and respondent No.3 and three others. The learned Judicial Magistrate, Ist Class, Phillaur vide his judgment dated 28the April, 1982, convicted respondents 2 & 3 and two others under section 406 and 120B, Indian Penal Code, and sentenced respondent No.2 to two years rigorous imprisonment and a fine of Rs. 2000/ under section 120B, Indian Penal Code. Respondents Nos. 409, Indian Penal Code,a nd six months, rigorous imprisonment 3 & 4 were sentenced to six months'' rigorous imprisonment each under section 120B, Indian Penal Code.

Now Mr. P.S. Sandhu, counsel for the respondents 2 and 3 says that the appeal was filed against the conviction and sentence and the case was remanded by the appellate Court for retrial. That order has also been challenged by way of Cr.R. No. 1655 of 1983 and the matter is pending in the High Court. He further says that in the meantime, the petitioners also field a civil suit in the Court of SubJudge, Phillaur and that Court issued a temporary injunction in favour of the petitioner on 6the May, 1983. Copy of that order is attached with the petition as Annexure P3. It is stated at the Bar that the civil suit has been decreed in favour of petitioner No.1 on Ist October, 1983.

The proceeding under section 145, Criminal Procedure Code, were initiated against petitioner No.1 respondent No.2 and others, on the basis of the Calendar submitted by the S.H.O., Phillaur on 7the May, 1983, on which the following order was passed by the SubDivisional Magistrate, Phillaur, on 11th May, 1983 (copy Annexure P2):

"Today Police Calander is produced. From this case under section 145, Cr.P.C. is found. Therefore, a notice be issued and both the parties summoned for 25.5.83 and a copy of the notice be pasted at the place of dispute or at a thoroughfare. Parties should put their case on that day."

IT is against this order initiating proceedings under section 145, Criminal Procedure Code, that the present petition under section 482, Criminal procedure Code, has been made.

The proceedings under section 145, Criminal Procedure Code, cannot continue as the impugned order does not show that a dispute likely to cause a breach of the peace concerning the land in dispute existed between the parties. It is a cryptic order and it is evident that the Magistrate did not apply his mind to the facts of the case and he blindly initiated the proceedings under section 145, Criminal Procedure code against the petitioners. The Magistrate is to apply his mind whenever any calander under section 145 or section 107/151 of the Code of Criminal Procedure is produced by the police. He is not to pass orders in casual manner. Proceedings under section 145, Criminal Procedure Code, are quite serious and can be only initiated when the statutory ingredients mentioned in section 145, Criminal Procedure Code, are satisfied. In the Calender it is mentioned that there is apprehension of Danga Fasad on account of harvesting between the parties and that partly No.2 (i.e. the petitioner) sowed the wheat crop. But, as observed earlier, the Magistrate has not to pass orders on the police report on a casual manner and he has to satisfy himself regarding the existence of the dispute likely to cause a breach of the peace between the parties. Thus, in this situation, the Magistrate could not initiate the proceedings under section 145, Criminal Procedure Code.

For the reasons recorded, I am of the view that the proceedings under section 145, Criminal Procedure Code, cannot be continued and the same are hereby quashed.