Pratap Singh v. State Of Rajasthan & Ors.

The Judgment of the Court was delivered by

Sunil Kumar Garg, J.:— This petition under Section 482 Cr. P.C has been filed by the petitioner (party No. 2) with a prayer that the order dated 16.2.2004 passed by the learned Sub Divisional Magistrate, Jaitaran by which on a complaint filed by the SHO, Police station Sendra against the respondent No. 1 to 5 (Party No. 1) and the petitioner (Party No. 2) under Section 145 and 146 Cr. P.C, the SDO, Jaitaran exercising powers under Section 146(1) Cr. P.C appointed SHO, Police Station Sendra as receiver in respect of land bearing Araji No. 1009/281, 1010/281 and 1012/281 situated in village Ravniya and further ordered SHO, Police Station Sendra to take possession of Araji No. 1009/281, 1010/281, 1011/281 and 1012/281 and submit the report, be quashed and set aside.

2. It arises in the following circumstances:

i) That party No. 1 (respondent No. 2 to 5) filed a complaint against party No. 2 (petitioner) before the SDO, Jaitaran under Section 145 and 146 Cr. P.C on 21.10.2003 stating that they were in possession of land measuring 10 bighas each situated in Khasra No. 1009/281, 1010/281, 1011/281 and 1012/281 since 1976 and the petitioner (party No. 2) was claiming the said land as adopted son of Jasketan Singh but in fact, he was not the adopted son of Jasketan Singh and the petitioner (party No. 2) was trying forcibly to take possession of their land and therefore, there was apprehension of breach of peace on account of dispute and hence, a prayer was made that the land in question be attached.

ii) That the above complaint was sent to the SHO, Police Station, Sendra by the SDO, Jaitaran on 21.10.2003 with a direction that the matter be examined and the report be submitted and thereafter the SHO, Police Station Sendra after taking into consideration the various statement recorded during the investigation, submitted a complaint under Section 145 and 146 Cr. P.C against party No. 1 and 2 on 30.1.2004 in the court of SDO, Jaitaran admitting that there was serious dispute between party No. 1 (respondents No. 2 to 5) and party No. 2 (petitioner) over the disputed land and thus, there was apprehension of breach of peace between the parties and thus a prayer was made that receiver be appointed in respect of disputed land.

iii) The said complaint of the SHO, Police Station Sendra was registered in the court of SDO, Jaitaran on 3.2.2004 and after drawing preliminary order, show cause notices were issued to both the parties i.e party No. 1 and 2 as to why over the disputed land, the receiver be not appointed and the next date fixed was 23.2.2004

iv) It has further been alleged by party No. 2 (petitioner) that subsequently dated was changed from 23.2.2004 to 13.2.2004 In the order-sheet of 13.2.2004, there is clear mention of the fact that the counsel for the parties sought time for submitting reply and the case was fixed for 16.2.2004 and the report of Tehsildar, Raipur was also sought.

v) On 16.2.2004 the impugned order was passed by the learned SDO exercising the powers under Section 146(1) Cr. P.C in which presence of counsel for both the parties have been shown and the learned SDO, Jaitaran appointed SHO, Police Station Sendra as receiver in respect of land bearing Araji No. 1009/281, 1010/281, 1011/281 and 1012/281 and submit the report.

vi) Aggrieved from the order dated 16.2.2004, the present misc. petition has been preferred by the petitioner (party No. 2) directly before this Court.

3. In this misc. petitioner, following submission have been raised by the learned counsel for the petitioner.

i) That SDO, Jaitaran vide order dated 27.1.2001 had already granted temporary injunction in a revenue suit in favour of party No. 2 (petitioner) and restrained party No. 1 (respondents No. 2 to 5) from interfering with the possession of the petitioner and therefore, party No. 2 (petitioner) was in possession of the disputed land.

ii) That since in the order-sheet dated 3.2.2004, the date was initially fixed as 23.2.2004 and thereafter it was changed to 13.2.2004 and thus, there is manipulation and same has been made to favour the party No. (respondents No. 2 to 5) and from this point of view also, the impugned order dated 16.2.2004 deserves to be quashed and set aside.

4. It may be stated here that this Hon'ble Court vide order dated 5.4.2004 passed the following stay order in this case:

“Meanwhile, status quo with respect to the subject land shall be maintained.”

5. A reply was filed by party No. 1 (respondents No. 2 to 5) in this court stating that since the impugned order dated 16.2.2004 passed by the learned Sub Divisional Officer under Section 146(1) was revisable under the provision of law, hence revision petition should have been filed by the present petitioner (party No. 2) and, therefore, the present Misc., Petition under Section 482, Cr. P.C is not maintainable as party No. 2 (petitioner) was having equally efficacious alternative remedy and from this point of view, this misc. petition deserves to be dismissed on this ground alone and apart from this, party No. 2 (respondents No. 2 to 5) has already filed a compromise petition in the revenue suit and on the basis of compromise the suit was disposed of by the learned Revenue Court by judgment dated. 5.2.1996 and party No. 1 (respondents No. 2 to 5) were declared khatedar of disputed land and thus, from this point of view also, the present mic. Petition is not maintainable and hence, no case is made out and the present misc. petition deserves to be dismissed.

6. Heard and perused the record.

7. There is no dispute on the point that on the complaint dated 21.10.2003 of party No. 1 (respondents No. 2 to 5), SHO, Police Station, Sendra filed a complaint under Section 145 and 146 Cr. P.C against the party No. 1 and 2 stating that there is serious dispute between party No. 1 and 2 over the disputed land and there is apprehension of breach of peace and hence the disputed land be attached and the receiver be appointed.

8. There is also no dispute on the point that initially, the order dated 3.2.2004 was drawn by the SDO, Jaitaran by which notices were issued to the parties returnable on 23.2.2004, but later on the matter was preponed to 13.2.2004

9. There is also no dispute on the point that the through impugned order dated 16.2.2004, SHO, Police Station Sendra was appointed as receiver.

10. There is also no dispute on the point that as per the reply of party No. 1 (respondents No. 2 to 5), in the revenue suit, compromise took place between the parties and on the basis of that, a decree dated 5.2.1996 was passed.

11. A bare perusal of the impugned order dated 16.2.2004 reveals that in passing the impugned order dated 16.2.2004, the learned SDO, Jaitaran has not considered the case of party No. 2 (petitioner) at all because at that stage, no reply was filed by party No. 2 (petitioner) before the SDO and further so far as question as to whether the compromise took place or not is concerned, a perusal of the court file shows that the said papers were in the file, but they were not taken into consideration while passing the impugned order dated 16.2.2004 This is the factual position of the case.

12. It may be stated here that inherent powers under Section 482 Cr. P.C can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided in the statute. If a matter is covered by an express latter of law, the Court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction. Inherent powers can be exercised only when on other remedy is available to the litigant and not where any specific remedy is provided by the statute. Inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matter. When there is an express provision barring a particular remedy of revision before the Superior Court, petition under Section 482 Cr. P.C does not lie.

13. There cannot be any dispute on the point that inherent powers under Section 482 Cr. P.C are not substitute for revision. The High Court should not examine the whole evidence directly under the inherent jurisdiction under Section 482 Cr. P.C

14. The Hon'ble Supreme Court in the case of State through Special Cell, New Delhi v. Navjot Sandhu alias Afshan Guru (1), has held that powers under Section 482 Cr. P.C should not be exercised when statutory remedy is available, in other words, the inherent power is not to be resorted to if there is specific provision for redressal of grievance of aggrieved party.

15. Thus, it can be held that inherent powers should not be exercised when there is specific provision granting the relief sought for. Power cannot be used under Section 482 Cr. P.C when specific remedies are available or the matter is of doubtful or trivial nature or when there was gross failure to avail the remedies, but inherent powers of the High Court cannot be invoked overriding the express provision of revision, unless it is to prevent the abuse of process of Court or to secure the ends of justice.

WHETHER EXPARTE ATTACHMENT ORDER UNDER Section 146(1) Cr. P.C CAN BE PASSED.

16. The Magistrate exercising the power under Section 146(1) Cr. P.C can attached the disputed property in the following three conditions:

i) if he considers the case to be one of emergency; or

ii) if he decides that one of the parties was in possession; or

iii) if the cannot decide which of them was in possession.

17. In the present case the impugned order dated 16.2.2004 reveals that the learned Magistrate directed the appointment of receiver on the ground that there was apprehension of breach of peace, meaning thereby that he covered his order under condition No. (i) as mentioned above i.e the provision of emergency.

18. The power under Section 146 Cr. P.C should be exercised with due care and caution and should be limited to the cases in which the likelihood of the breach of peace is so imminent as to call for immediate action to prevent the same.

19. A mere breach of peace does not bring a case within the gamut of this section. The term “emergency” means existence of factors of conditions which emerged calling for immediate action to attach the land and take it under the control and management of the court. Where there exists no emergency, attaching of the disputed land and appointment of receiver are bad. When Civil Court has passed an order for maintenance of status quo, an order directing attachment of the property and appointing a receiver cannot be justified.

20. There is also no dispute on the point that at the time of passing an order of attachment, if Magistrate considers it to be a case of grave emergency, he can pass an order of attachment simultaneously after seeing the material brought to him and notice to opposite party is not necessary in such a case, if situation warrants the same.

21. Thus, it can be held that in the proceedings under Section 145 Cr. P.C order of attachment can be passed without hearing other party in case situation warrants the same.

22. But in the present case when the preliminary order under Section 145(1) Cr. P.C was drawn on 3.2.2004, the Magistrate did not pass the order under Section 146(1) Cr. P.C attaching the disputed property meaning thereby that on 3.2.2004 before the SDO, there was not such emergency for which he could have passed the attachment order under Section 146(1) Cr. P.C Without hearing the other party and that is why he issued show cause notice to both the parties as to why the disputed property be not attached. In other words, while drawing the preliminary order on 3.2.2004, the learned SDO did not pass order of attachment under Section 146(1) Cr. P.C simultaneously with that order.

23. When he has not passed the order of attachment on 3.2.2004, it reflects that SDO felt that he must have given opportunity to other side also before passing any order. The impugned order dated 16.2.2004 reveals that in that order he had considered only one affidavit filed by party No. 1 (respondent No. 2 to 5) and it does not reflect that submissions of party No. 2 (petitioner) were taken into consideration while passing the impugned order dated 16.2.2004 because in the impugned order. dated 16.2.2004, nowhere it is mentioned that arguments of party No. 2 were before him, meaning thereby it was nothing but an exparte order though before passing the order dated 16.2.2004, notice were issued to the parties.

24. In my considered opinion, in passing the impugned order dated 16.2.2004, the learned SDO has committed grave error which resulted in miscarriage of justice and since it has resulted in miscarriage of justice, the misc. petition under Section 482 Cr. P.C is maintainable.

25. For the reasons mentioned above, it is held that the present misc. petition under Section 482 Cr. P.C is maintainable and for the reasons mentioned above, the impugned order dated 16.2.2004 cannot be sustained and the same is liable to be quashed and set aside and the matter is liable to be remanded back to be learned SDO with some directions.

“Accordingly, the present misc. petition is allowed and the impugned order dated 16.2.2004 passed by the learned SDO, Jaitaran by which the learned SDO appointed SHO, Police Station Sendra as receiver in respect of land bearing Araji No. 1009/281, 1010/281, 1011/281 and 1012/281 situated in village Ravniya is quashed and set aside and the matter is remanded back to the SDO, Jaitaran to decide the matter a fresh after taking into consideration the reply filed by both the parties and their arguments. The parties are directed to appear before the SDO, Jaitaran on 28.5.2004 The party No. (present petitioner) is directed to submit his reply before the SDO, Jaitaran on or before 28.5.2004

It is further ordered that till the matter is decided by the SDO, Jaitaran, both the parties shall maintain status quo in respect of disputed land.