- (1.) THE petitioners, who are party No. 2, in the proceedings under Section 145 Cr. P. C. , have approached this Court under Section 482 Cr. P. C. with a prayer to quash the pending proceedings under Section 145 Cr. P. C. before the Additional District Magistrate (City-Magistrate), Jaipur in Crime No. 397/87. A prayer has also been made to set aside the order dated July 25, 1992 pa- ssed by the aforesaid Court.
(2.) IN order to appreciate the controversy involved in the matter and the circumstances leading to the present petition, necessary facts may be given in brief, as under :- The dispute between the parties relate to Shop No. 48 situated in Gangori Bazar, Jaipur. From the material on record, it is borne out that dispute concerning the property, basically is a family dispute between members of one family. Late Shri Ratan Lal Jaipuria, the husband of petitioner No. 1 and grand father of petitioner Nos. 2 and 3 as well as father of petitioner No. 4 and late Shri Gokul Chand Jaipuria, father of non-petitioners No. 2 to 9 were real brothers. It also appears the before 1956 there was a Joint Hindu Family business and in 1956 there was a family settlement whereby partition of the properties and Joint Hindu Family business was partitioned. After partition, the two brothers namely, Gokul Chand Jaipuria and Ratan Lal Jaipuria continued joint business in partnership in the name and style of `m/s. Satyna Vyavaharic & Co. ' From the pleadings of the parties in Civil Suit No. 894/85 it transpires that shops bearing No. 48 & 50 situated at Gangori Bazar, Jaipur were partitioned in the year 1948 by way of a family settlement between six brothers including Gokul Chand Jaipuria and Ratan Lal Jaipuria and as per the partition, Shop No. 48 alognwith varandah fell in share of Gokul Chand Jaipuria, while Shop No. 50 came in share of Ratan Lal Jaipuria. However, un-disputed fact is that Gokul Chand Jaipuria and Ratan lal Jaipuria continued to carry on business jointly on Shop No. 48 both having half share in the partnership business. After death of Ratan Lal Jaipuria in January, 1981, his wife Smt. Bhuri Devi became partner in the aforesaid business and the partnership business continued in the name and style of `satya Vyavaharic & Co. ' and it further appears that petitioners Ajay Kumar and Anuj Ku- mar, who were partners (sic) (minors? Ed.) at that time, were admitted as partners in benefit of the business of the firm, which was re-constituted on January 24, 1981. Gokul Chand Jaipuria died on August 3, 1985 and dispute arose between the parties in relation to partnership business and it appears that members of both the parties tried to occupy shop No. 48 to the exclusion of the other. Petitioner Om Prakash Jaipuria made a report to the S. P. , Jaipur wherein he prayed to provide him security as non-petitioners Arjun Lal and Sushil Kumar forcibly took-away the account books of the firm `m/s. Satya Vyavaharic & Co. ' and there was apprehension of breach of peace at their hands. Non-petitioner Rama Kant also made a written report to the Incharge, Police Station Kotwali, Jaipur. The SHO concerned after ma- king an inquiry on the report submitted by petitioner Om Prakash, filed a complaint in the Court of A. D. M. Jaipur City under Section 145 Cr. P. C. , in which petitioners were impleaded as party No. 2, while non-petitioners No. 2 to 9 were impleaded as party No. 1. It was stated in the complaint that on making inquiry on the report of Om Prakash, it was revealed that on the shop in question partnership business was being carried on by the firm consisting of 4 partners namely Gokul Chand having 50% share, Smt. Bhuri Devi having 20% share, Shri Ajay Kumar having 15% share and Anuj Kumar having 15% share. That Gokul Chand died on 3. 8. 85 and after his death, his sons became entitled to get movable and immovable properties of Gokul Chand and that the shop in question had come in share of Gokul Chand Jaipuria in family settlement between the parties, while Om Prakash and his sons Ajay Kumar and Anuj Kumar were claiming their ownership on the goods lying in the shop. It was also stated in the report that on 26. 8. 85 after closing the shop its key was given to Om Prakash as per the previous practice, but on next day, the shop was not open- ed by Om Prakash and both the parties put their locks on the shop. Thus, according to the report there was apprehension of breach of peace on account of a dispute with regard to shop in question bearing No. 48 situated at Gangori Bazar, Jaipur. On this report, the learned A. D. M. dropped preliminary order under Section 145 (1) Cr. P. C. and directed to issue notice to the parties requiring them to attend his Court in person or through pleader and put their written statement on their respective plaints and in respect of actual possession of the subject of dispute. Thereafter, on 2nd September, 1985 on an application of the SHO, Police Station Kotwali, the shop in question was attached under Section 146 (1) Cr. P. C. and Tehsildar was appointed as the receiver with a direction to take possession over the shop and the goods ly- ing therein. On December 20, 1985 all the concerned parties appeared before the A. D. M. and sought time to file reply. Since then, no progress in the proceedings has been made, except that parties have filed the replies and documents and the application filed by party No. 2 on 17. 8. 88 has been decided o n 25. 7. 92. In the aforesaid application dated August 17, 1988 party No. 2 had prayed to drop the pro- ceedings as civil suit filed by party No. 2 stood dismissed in default on 20. 5. 88. At the outset it may be stated that the inquiry in the proceedings before Additional District Magistrate has proceeded in a most un-satisfactory and casual manner. The proceedings under Section 145 Cr. P. C. are of preventive nature as the purpose of such proceedings is to prevent a breach of peace. In a proceeding under Section 145 Cr. P. C. the right or title of the parties in relation to the subject of dispute is not decided and the inquiry is limited as to who was in actual physical possession of the subject of dispute on the date of preliminary order or whether a party was dispossessed within two months next before the date of report of the police officer or other information received by the concerned Magistrate. The various order sheets of the case file show that the concerned Magistrate was not at all worried to see that the proceedings are decided expeditiously and the case has been adjourned from time to time in a most casual manner. The way in which the proceedings have been taken in a casual and leisurely manner needs to be deprecated. Be that as it may, the question which calls for consideration in this petition is whether the pending proceedings under Section 145 Cr. P. C. should be quashed and if so, what orders should be passed about the possession of the shop. From the written statement filed by the parties and other documents on record one thing is clear that immediately before the dispute arose between the parties a joint par- tnership business was being carried on between the parties in the name and style of M/s. Satya Vyavaharic & Co. In the partnership business Gokul Chand Jaipuria. Father of Non-petitioner Nos. 2 to 9 was having 50% share, while petitioners Smt. Bhuri Devi, Ajay Kumar and Anuj Kumar were having 50% share in all. The dispute arose on death of Gokul Chand on 3. 8. 85 when both the parties tried to exclude the other party from the joint business. Thus, this fact cannot be disputed that the shop was in possession of the partners. This Court has taken a consistent view that in case of joint possession over the immovable property, proceedings under Section 145 Cr. P. C. cannot be initiated. From the police report, which was basis for initiating the proceedings under Section 145, Cr. P. C. also, it transpires that on Shop No. 48 joint business was being carried on between the partners and after death of one of the partners, namely, Shri Gokul Chand Jaipuria both the parties put their separate locks. In case of partnership each partner is deemed to be owner and in possession of partnership properties. Proceeding under Section 145 Cr. P. C. is not a proper re- medy to resolve the dispute of a partnership firm. I am of the considered view that the learned A. D. M. committed serious error in initiating proceedings u/s. 145 Cr. P. C. in relation to Shop No. 48 which was in joint possession of the partners and partnership business was being carried on in the name and style of M/s. Satya Vyavaharic & Co. It also transpires that during the pendency of the present procee- dings, non petitioners, Party No. 2, filed a civil suit on December 3, 1985 in the Court of District & Sessions Judge, Jaipur City, Jaipur and the said suit related to partnership business and also for possession of shop Nos. 48 and 50, in that suit a receiver was also appointed for which party No. 2 also did not object, vide order dated 6. 2. 87 and one Shri Krishna Behari Mathur was appointed as receiver. However, the suit stood dismissed in default. After initiation of the proceedings under Section 145 Cr. P. C. more than 10 years have passed and no substantial progress in the enquiry has been made. As stated earlier, proceedings u/s. 145 Cr. P. C. are of temporary nature and its object is to prevent an immediate breach of peace. With this object, a temporary order is passed under Section 145 Cr. P. C. irrespective of rights of the parties, which will have to be decided and disposed of the manner provided by the law. In these circumstances, I am of the confirmed view that no useful purpose shall be served by continuing the proceedings u/s. 145 Cr. P. C. when admittedly a partnership business was being carried on, on the shop in question and partners were having a joint possession over the same. More than 10 years have passed since initiation of proceedings but without any substantial progress. It may also be stated that proceedings u/s. 145 Cr. P. C. were also initiated with regard to Shop No. 50. But those proceedings were quashed by this Court on the ground of pendency of civil suit.
(3.) CONSEQUENTLY, I allow this petition and the pending proceedings under Section 145 Cr. P. C. in relation to shop No. 48, in the Court of Additional District Magistrate, Jaipur City, Jaipur are hereby quashed. Having done so, a further question arises what orders should be passed in relation to shop which is in possession of the receiver after attachment. The shop was in joint possession of the partners and after death of Gokul Chand, both the parties have put their separate locks on the shop. Though, it appears that the said shop came in share of Gokul Chand, but the question of title and right to possession cannot be decided by a criminal Court in the proceedings u/s. 145 Cr. P. C. In the facts and circumstances, I think it just and proper that the attachment in relation to shop in question shall continue and possession shall remain with the receiver until any competent Civil Court passes any order in relation to it after hearing both the parties. The petition stands disposed of as indicated above. . ;