- (1.) THIS is an application under section 482, Cr. PC against the order passed by learned Sessions Judge, Bundi, on March 10, 1989 by which he dismissed the part of the prayer of the petitioners in revision filed against the order, dated 26th August 1988 passed by the learned A. C. M. Bundi in proceedings under section 145, Cr. PC.
(2.) BRIEF facts giving rise to this petition are that non -petitioner Nos. 1 arid 2 Karnidan and Kishan Singh aged 75 years and 70 years respectively are real brothers. They filed an application under section 145 Cr. PC before learned A. C. M. Bundi on 17 August, 1988, wherein it was alleged by them that they are the Khatedars and are in cultivatory possession of 15 Bighas 15 Biswas of land in Khasra No. 75 old Khasra No. 25 in village Theekariya Charans, Tehsil in District Bundi. This land is known as Peeplihala. It was alleged by them that they had given the land for cultivation on Aadoli in erstwhile Bundi State of Rodu, father of petitioner No. 1 Kalu, for a period of two years but later on they cultivated the land themselves. It was alleged by applicants-non-petitioners that non applicants got the land entered in their name in the revenue record in connivance with the Land Settlement Officers though cultivatory possession remained with them since last 45 years. It was stated in the complaint that non-applicant-petitioners had filed a suit in respect of this land against Rodu son of Bholu wherein a receiver was appointed on 25. 5. 1987. When the applicant non petitioners learned about it they approached the Revenue Appellate Authority where from an order was passed for continuing their possession on depositing Rs. 250/- per bigha. This order was challenged by both the parties before the Board of Revenue wherein the Revenue Board gave a decision on 14. 9. 1987 that Karnidan shall continue to be in possession of the disputed Sand provided he deposits a security at the rate of Rs. 200/- per bigha per year and Karnidan non petitioner deposited Rs. 3000/- on 2. 11. 1987. The non- applicants Kalu etc. joined hands with Rodu and filed a compromise without the knowledge of the applicant-non-petitioners and the learned A. C. M. decreed the suit in favour of the non- applicant petitioners in terms of compromise, an appeal against this decree is pending. Application under section 145, Cr. PC had been filed because non-applicant-petitioners in the garb of the stay order are trying to dispossess the applicant-non-petitioners and that there is breach of peace. Notice was issued of this application and the learned Magistrate on 26. 8. 88 passed an order directing issuance of notice to the petitioners and simultaneously drew up an order u/s 146, Cr. P. C. appointing the Tehsildar, Bundi as receiver. Tehsildar was directed to take over the possession forthwith and to make necessary arrangements for cultivation of the land in dispute from year to year by auctioning the same and by seeking approval of the court. This order under. 146 Cr. PC was challenged by the petitioners before the learned Sessions Judge, Bundi. The learned Sessions Judge, Bundi modified the order of the learned Magistrate to the extent that inquiry contemplated under sec. 145 (4) Cr. PC would remain stayed and the parties were directed to await the decision of the Civil Court for the purpose. He however, upheld the order appointing the receiver on the land in dispute. It is against this part of the order that the present petition has been filed. The petitioners' case in this court is that the land is in their Khatedari and all the revenue record indicates the same. Their case is that one Rodu son of Bholu Goojar had once forcibly taken over the possession of the said land from the petitioners against whom a regular suit for this possession was filed before the Sub-Divisional Officer, Bundi under the provisions of Rajasthan Tenancy Act, 1955 by the petitioners. The defendant Rodu in that case contested the suit which was ultimately compromised between the petitioners and Rodu and a decree in terms of the Compromise was passed. In pursuance of this decree the possession was handed over to the petitioners and it was also directed that the money deposited in the court shall be returned to them. Non-petitioner Nos. 1 & 2 had filed a suit under sections 188 & 88 of Rajasthan Tenancy Act for declaration and injunction against the petitioner on the same allegations which have been levelled in this application under section 145, of Criminal Procedure Code and the prayer in that suit is that it may be declared that non petitioner Nos. 1 & 2 are the Khatedars of the said land measuring 15-15 Biswas of Khasra No. 75. The non- petitioners further prayed that they may be recorded as Khatedars and the name of the petitioners should be deleted. A permanent injunction has also sought to that effect against the petitioners. An application under section 212 of the Tenancy Act and sec. 151 read with O. 39, Rr. 1 & 2, Cr. PC was filed with this suit which did not filed favour in the trial court and was rejected against which an appeal is pending before the Revenue Appellate Authority. The petitioners case, therefore, is that non-petitioners were neither in possession nor can claim cultivatory possession of the land till their suit is decreed for which there are no chances. The petitioners' case further is that they are the recorded Khatedars of the land originally was in Khatedari of Rodu son of Nanda who had three sons petitioner No. 1 Kalu, Goga father of petitioner No. 2 and Kana father of petitioner Nos. 3,4,& 5. After the death of Rodu there was mutation in the revenue record in favour of Kalu, Kana and Gopi as Goga had pre deceased Rodu. In these circumstances it is submitted that the courts below erred in drawing an order under section 146, Cr. PC and appointing the receiver. It is submitted that the petitioners are in possession of the land in dispute by virtue of decree of the competent court and there was no question of passing any order under section 146, Cr. PC so as to defeat the decree passed by the competent court. It is submitted that the order of the learned ACM is ex-facie illegal in as much as it does not indicate that the learned ACM has applied his mind to the facts and circumstances of the case. It is submitted the learned Sessions Judge, Bundi should have quashed the entire proceedings rather than staying them during the pendency of suit and continuing the appointment of the receiver. Replying to the submissions of the learned counsel for the petitioner it is submitted on behalf of the non-petitioners that- the petitioner claims to be in possession on the basis of a collusive decree and this action is calculated to harm the non-petitioners. Such a plea based on fraud cannot be taken note of and considered as one of the circumstance against the non petitioners, particularly because they were not party to the suit compromised. Besides this, a suit has already been filed which is sub judice before the Competent Court where all the rights will be adjudicated. It is submitted that there is absolutely no illegality in the order passed by the re-visional court and interference cannot be done under the provisions of sec. 482 Cr. PC. It is then submitted that the scope of sec. 482 Cr. PC is very limited and besides that order of criminal court is always coterminus with the order of civil or revenue court and as such the learned courts were justified in appointing a receiver pending disposal of these proceedings. It is submitted that it is open to the petitioner to get an order from the competent civil/revenue court and then move the criminal court to pass an order which may not be inconsistent with that order. Learned counsel for the petitioner has relied on Ram Sumer Puri Mahant v. State of U. P. and others: (1), Mani Ram and others v. The State of Raj. anr. (2), Arvind Singh & Others v. State of Raj. and others (3), Megh Raj and others v. State of Rajasthan and others (4), Harvinder Singh v. Jaswant Singh & Ors. (5); and Jhunamal alias Devandas v. State of M. P. & others : AIR 1988 SC 1973 (6), while learned counsel for the, non petitioners has relied on Mathuralal v. Bhanwarlal & Anr (7) and Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. (8 ). In Ram Sumer Puri Mahant v. State of U. P. and other (supra) their Lordships held as under :- "when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding under section 145 of the Code would not be justified. The parallel proceedings should not be permitted to continue and in the event of a decree of a decree of the civil court the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. " In Mani Ram and others v. State of Rajasthan & another (Supra) this court held that when the non-petitioners have already approached the Revenue Court for a declaration of the right and failed to obtain a receiver while the petitioner obtains a temporary injunction in his favour, recourse to the proceedings under section 145 Cr. PC are not appropriate. In Arvind Singh and others v. State of Rajasthan & others (supra) this court has reiterated that right, title and interest have to be finally adjudicated upon by the Civil Court and such an adjudication would be binding on the parties and civil court is equally competent to pass an interim order in connection with the protection for alleged right, title and interest of the parties and also in connection with the protection of the properties in question. If by any interim order passed by the civil court, and party feels aggrieved then a regular remedy is available to the party in law and the parties should not be allowed to invoke the criminal jurisdiction. In Meg Raj & Others v. State of Raj. & others (supra) this court followed Mani Ram's case quoted above. In Harvinder Singh v. Jaswant Singh & others (supra) a Civil Suit had been filed where a temporary injunction had been granted and when the proceedings under s. 145 Cr. PC were drawn this court held that there was no propriety but in view of the fact that the undertaking was given by the petitioner to hand over the possession of the premises in case injunction order is vacated or the Civil Court does not accepted the prima facie case of possession. The non- petitioners apprehension was that once the proceedings are dropped, the party is likely to withdraw the suit so as to defeat the rights of the non petitioners giving an undertaking not to withdraw the suit, the court directed the quashing of the proceedins under s. 145.
(3.) IN Mathuralal's case it has been held that Magistrate's jurisdiction does not come to any end as soon as an attachment is made on the ground of emergency and further that there is no express stipulation in S. 146 that jurisdiction of the Magistrate ends with the attachment nor it is implied, from it. The obligation to proceed with the enquiry as prescribed by S. 145 (4) is against any such implication. The only provision for stopping the proceeding and cancel lings the preliminary order is to be found in S. 145 (5) and it can be on the ground that there is no longer any dispute likely, to cause a breach of the peace. An emergency is the basis of attachment under the first limb of Sec. 146 (1) and if there is an emergency, no one can say that there is no dispute likely to cause a breach of the peace. Their Lordships further compared the provisions of Code of Criminal Procedure before 1955 under the old Act and as they now stand under the 1973 Code. After discussing their Lordships came to the conclusion that the provisions of secs. 145 and 146 of the 1973 Code are substantially the same as the corresponding provisions before the 1955 amendment. The only noticeable change is that the second proviso to Sec. 145 (4) (as it stood before the 1955 amendment) has now been transposed to sec. 146 but without the words "pending his decision under this Section" and with the words "at any time after making the order under sec. 145 (1)" super added. The change clearly, is in the interests of convenient draftsmanship. All situations in which ah attachment may be made are now mentioned together in S. 146. The words, pending his decision under this section' have apparently been omitted as unnecessary since S. 145 provides how the proceedings initiated by a preliminary order must proceed an end and therefore an attachment made at any time after making the order under S. 145 (1)' can only continue until the termination of the proceeding. At the termination of the proceeding, if he finds one of the parties was in possession as stipulated, the Magistrate must make an order as provided in S. 145 (6) and withdraw the attachment as provided in S. 146 (1) since there can be no dispute likely to cause a breach of the peace an order in terms of S. 145 (6) is made. IN this case their Lordships were considering the question as to whether Magistrate as soon as he passes an order of attachment whether he has to do anything also except awaiting the decision or direction of the Civil Court. The position in that case was little different than the one in the instant case. In Municipal Corporation of Delhi's case their Lordships held that powers under section 482 Cr. PC should be exercised very sparingly and only if compelling reasons excepting for taking cognizance against other persons against whom action has not been taken. This case was in respect of taking cognizance of the offence against him and other accused persons and at latter stage has no bearing on the facts of this case. I have carefully gone through the aforesaid case law and the circumstances leading to filing this petition I have also gone through the record which was summoned by this court. ;