In CRL.M.C. 2611/2021-DEL HC- Under Sec.145 CrPC, Magistrate can only make inquiry for limited purpose of determination of possession of property in dispute without entering into determination of title where apprehension of breach of peace and property exists: Delhi HC Justice Asha Menon [02-06-2022]

Read Order: MURARI MIRCHANDANI v. STATE & ORS

Tulip Kanth

New Delhi, June 28, 2022: While referring to Section 145 of the Code of Criminal Procedure, the Delhi High Court has elucidated that the SDM must abide by the determination of the inter se rights of parties, whether interim or final, by the civil court.

Expounding the law relating to this provision, the Bench of Justice Asha Menon asserted, “When a report is received by the Magistrate that there is an apprehension of breach of peace and property is involved, the Magistrate only makes an inquiry for the limited purpose of the determination of possession of the property in dispute, in no way entering into the question of determination of the title of the property.”

The facts of this case revolved around the petitioner who was engaged in the business of real estate and the property in New Delhi was leased by the Delhi Development Authority (DDA) to late Sh. Surender Kumar Sardana, who died leaving behind his siblings as his legal heirs. 

The third respondent entered into a Memorandum of Understanding on behalf of himself and his siblings with the petitioner for sale of the property for a total sale consideration of Rs.19 crores. The petitioner filed a suit for specific performance, declaration and permanent injunction against the third respondent after coming to know that the second respondent had filed an Interlocutory application for impleadment in the said suit as the rightful owner of the property.

The second respondent had also made a complaint upon which a Kalandara was prepared under Section 145 Cr.P.C. and the property in question was sealed. Later, the SDM passed an order of status quo, after which the second respondent filed a petition for quashing these proceedings. In the said petition, this court directed the SDM to dispose of the proceedings within a period of six months from the date of the order . The SDM then closed the proceedings under Section 145 Cr.P.C.

The grievance of the petitioner was that after the dismissal of the revision petition against the said order of the SDM by the District and Sessions Judge,  the second respondent filed a fresh application and the SDM passed issued a Notice to the third respondent to appear before her, also intimating the petitioner of the filing of the application for desealing and handing over of the possession, by the second respondent.

According to the Bench, the Notice was thus ex facie perverse.The SDM had closed the proceedings under Section 145 Cr.P.C., as there was no emergent ground for disruption of public peace, and the question regarding the title and the right of possession to the suit property was under consideration of the competent courts i.e., the High Court and the District Court. The Revision Petition preferred by the second respondent was also dismissed. 

Also, the SDM had not observed the existence of an emergent ground of disruption of public peace, which may have justified the re-opening of the issue, though, once again, the provision to be invoked in that event was under Section 107 Cr.P.C.It was noted by the Bench that the SDM committed an error by issuing the impugned notice even without the production of any order of the civil court determining the rights either by an interim order or the final order.

Thus, the SDM’s notice was quashed on the ground that the action taken by the SDM was completely in violation of the law.The Bench held that it would be open to the parties to seek appropriate reliefs from the civil courts in seisin of the civil suits and produce such orders before the SDM, if the civil court finds one of them entitled to seek the desealing/possession.