Proceedings To Attach Property U/S 146 CrPC Can't Be Initiated Once Right To Possession Has Been Decided By Court: Punjab & Haryana HC

The Punjab & Haryana High Court has made it clear that the proceedings under Section 145, 146 CrPC cannot be initiated once the right to possession of the property has been decided by the Court.

Section 145 CrPC prescribes the procedure to be followed by the Magistrate in case there is a dispute concerning land and Section 146 gives the power to attach the subject of dispute and to appoint a receiver.

Justice Jasjit Bedi said, "Once the factum of possession and right to possess both have been adjudicated upon by the appropriate Civil Court, the question of initiation of proceedings under Sections 145/146 Cr.P.C. does not arise. It may be reiterated here that proceedings under Sections 145/146 Cr.P.C. pertain to the factum of possession of a party and not the right to possess which is to be determined by the Civil Court."

The Court was hearing a plea under Section 482 Cr.P.C. for quashing of the order passed by the Sub Divisional Magistrate, Hodal registered under Sections 145/146 Cr.P.C.

Facts in Brief

One Salim filed a suit in 2009 for a mandatory and permanent injunction against the petitioners and others wherein he admitted the possession of the defendant (therein) upon the suit land.

The Civil Court, Hodal by judgment and decree in 2014 dismissed the suit on the grounds of maintainability and further gave a finding that Kishna and others (present petitioner party) were already in possession of the suit land before he had come into the picture and therefore, there was no encroachment upon the suit land. The judgement was also challenged and the Appellate Court dismissed it.

Meanwhile, while the civil litigation was pending, Salim initiated proceedings under Sections 145/146 Cr.P.C. against the petitioner and others and vide impugned order dated in 2015 the SDJM, Hodal allowed the application erroneously on the grounds of the alleged ownership without determining the issue of possession. Interestingly, the Civil Court had already found that the petitioner and others were in possession of the suit land. 

Counsel for the petitioner contended that proceedings under Sections 145/146 Cr.P.C. were not maintainable when the parties were in the midst of civil litigation. 

The impugned orders were liable to be set aside because they were based on the purported adjudication of the possessory and ownership rights whereas the Executive Magistrate was to ascertain the issue/factum of possession as on the date of the application or two months prior thereto.

After hearing the submissions, the Court noted, "A perusal of the material on record would show that a civil suit had been filed for mandatory and permanent injunction against the petitioners and others by respondent No.2 (Salim)."

"The said suit was dismissed with a finding that it was the petitioners' side (defendants in the civil suit) that were in possession. The said finding was upheld by the Appellate Court," it noted further.

Justice Bedi highlighted that in this case, both the right to possess and the factum of possession have been held to be in favour of the petitioners and once the factum of possession and right to possess both have been adjudicated upon by the appropriate Civil Court, the question of initiation of proceedings under Sections 145/146 Cr.P.C. 

Consequently, the orders challenged by the petitioner were set aside.

Mr. Abhilaksh Grover, Advocate for the petitioners.

Mr. Deepak Grewal, DAG, Haryana for respondent No.1.

Mr. Keshav Pratap Singh, Advocate for respondent No.2.

Title: KISHNA & ANOTHER v. SUB DIVISIONAL MAGISTRATE HODAL & ANOTHER

Citation: 2024 LiveLaw (PH) 207

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