Surain Singh and others vs State of Haryana

V.K. Bali, J.

Surain Singh and others through present petition filed by them under Section 482 of the Code of Criminal Procedure seek quashing of orders, Annexures P2 and P3, passed under Sections 145 and 146 Cr.P.C. by the Sub Divisional Magistrate, Hisar.

Brief facts of the case reveal that petitioners are owners in possession of fields comprised in Khasra Nos. 1382 (25, 24, 23, 22, 21), 1384 (2521) and 1385 (2521) situated in the revenue estate of village Peeranwali, District Hisar. It is pleaded and so argued by learned counsel appearing for the petitioners that as per the revenue record i.e. AK sajra, Jamabandi and other relevant documents, there exists no path on the said fields which might lead towards the fields of the respondents. However, with a view to establish such a right, as has been mentioned above, respondents filed a civil suit, during the currency of which they also maintained an application under order 39 rules 1 and 2 read with Section 151 C.P.C. for grant of interim injunction. The matter came up for hearing before the Subordinate Judge, Hissar and vide his order dated 21.9.1994 injunction was specifically declined. It is thereafter that the respondents approached the police of the area which referred the matter to the S.D.M., Hissar for initiating proceedings under Section 145/146 Cr.P.C. on 9.11.1994 and it is on the same day that order under Section 145/146 Cr.P.C. was passed.

Learned counsel for the petitioners vehemently contends that the respondents had prior in point of time approached the Civil Court for the same relief as sought to be made out by them in the proceedings launched under Section 145/146 Cr.P.C. Having lost the matter there, even though by way of an interim order, learned S.D.M., Hisar was wholly unjustified in attaching the land. Insofar as the order of Subordinate Judge, referred to above, is concerned, that has assumed finality, even though this facility is only till the lis lasts as concededly, order aforesaid was not challenged by way of appeal or revision by the respondents. It is conceded position that for grant of interim relief the Civil Court can be approached and even if there is change of circumstance it is well within the rights of the parties to ask for modification of earlier order. Once a party has approached the Civil Court by which in a suit instituted by it stay was specifically declined after taking into account rival contentions of the parties, in view of this Court, there was no occasion for the SDM to have proceeded in the matter under Section 145/146 Cr.P.C. The proceedings initiated by the SDM, Hisar are, thus, an abuse of process of the Court and deserve to be quashed. So ordered.

Before I part with this order, I would like to mention that learned counsel for the respondents has brought to my notice that there is no path provided to the fields of the respondents during consolidation proceedings and the Deputy Commissioner being appraised of the situation is looking into the matter. She further states that no paths were provided during consolidation proceedings and the landowners/proprietors were going to their fields through the path of each other by consent and brotherhood. No such point was ever raised before the Civil Court. If, however, there be some substantial evidence available to the respondents on the point, referred to above, it shall be open for the respondents to make an application under order 39 rule 4 C.P.C. before the Civil Court.

The present petition is allowed in the manner indicated above.