Allahabad High Court
Indramohan Gautam vs State Of U.P. & Another on 25 August, 2017
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 19.07.2017 Delivered on 25.08.2017 AFR Case :- CRIMINAL REVISION No. - 1003 of 2012 Revisionist :- Indramohan Gautam Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Hemendra Pratap Singh Counsel for Opposite Party :- Govt. Advocate,Rajiv Gupta Hon'ble Harsh Kumar,J.
Heard Sri Hemendra Pratap Singh, learned counsel for the revisionist, learned A.G.A for the State and perused the record. None appeared for opposite party no. 2.
The revision has been filed by Indramohan Gautam the second party to the proceedings under Section 145 Cr.P.C. against the order dated 09.03.2012 passed by City Magistrate, Mathura in Case No. 24 of 2011 under Sections 145(1) Cr.P.C. issuing notice & under Section 146(1) Cr.P.C. issuing order of attachment of the house in question.
Learned counsel for the revisionist contended that the learned Magistrate acted wrongly in passing the impugned order of attachment of the house in question under Section 146(1) Cr.P.C. on the same day when he had issued notices to second party under Section 145(1) Cr.P.C., fixing 23.03.2012 for objections and disposal, and so the same is wrong on facts & law; that the learned Magistrate had no jurisdiction to pass impugned order of attachment under Section 146(1) Cr.P.C. simultaneously with the passing of order under Section 145(1) Cr.P.C. inviting objections; that the house in question is being occupied by the revisionist being tenant since the times of his father; that Smt. Jamuna Devi the owner of the house in question had executed an agreement for sale in favour of father of revisionist on 20.02.1992 for a sum of Rs. 3,60,000/- after accepting Rs. 2 lakhs as advance sale consideration and the sale deed was agreed to be executed within three years; that despite laps of three years Smt. Jamuna Devi the owner did not execute sale deed of the house in favour of revisionist or his father, rather sold the house to Pradeep Kumar, Brijwasi Agarwal and Shyam Sunder through registered sale deed dated 03.06.2011; that the opposite party no. 2 lodged a false FIR against the revisionist at case crime no. 266 of 2012 under Sections 384, 420, 406, 323, 504, 506 I.P.C. in which vide order dated 23.03.2012 of this Court passed in Criminal Misc. Writ Petition No. 3295 of 2012, the arrest of revisionist was stayed till submission of charge sheet; that since Smt. Jamuna Devi refused to accept the rent of the house in question so the revisionist deposited the same in Court in her favour, under Section 30(1) of U.P. Act No. XIII of 1972; that previously one Harish Kumar moved an application for allotment of the house in question in which the Rent Control Inspector submitted report with regard to the possession of revisionist's father Basudev on the basis of his type written statement submitted to the Rent Control Inspector, stating his 20 years long possession over the house with the consent of owner of the house; that the revisionist is in actual physical possession over the house in question as tenant; that there was no urgency or apprehension of breach of peace and so also the impugned order of attachment is wrong and incorrect and is liable to be set aside; that the civil suit in respect of the property in question is also pending and so the proceedings under Section 145 Cr.P.C. are not maintainable, in view of the law laid down by the Apex Court in the case of Ram Sumer Puri Mahant Vs. State of U.P. AIR (1985)1 SCC 427.
Per contra, learned A.G.A. supported the impugned orders passed by the Magistrate under Sections 145(1) and 146(1) Cr.P.C. and contended that by way of order under Section 145 (1) Cr.P.C., objections from IInd party revisionists were invited by the Magistrate and the Magistrate was fully justified in passing the impugned order of attachment of the house in question under Section 146(1) Cr.P.C. as there was urgency and apprehension of breach of peace; that it is wrong to say that any civil suit is pending in respect of the premises/house in question; that the alleged agreement for sale dated 20.02.1992 between Smt. Jamuna Devi and Basudev the father of revisionist, is forged illegal and incorrect and is not admissible in evidence for want of registration; that after 01.01.1976 any such agreement for sale in respect of the property above the value of Rs. 100/- may be executed only by way of a registered agreement and not otherwise; that moreover after lapse of 25 years from the execution of alleged agreement for sale the father of revisionist is neither alleged to have made payment of the agreed balance sale consideration nor filed any civil suit for specific performance of contract; that the revisionist is not tenant over the house in question and deposit of rent under Section 30(1) of U.P. Act XIII of 1972 is wrong and illegal on the basis of which he may not be considered to be tenant in possession over the property in suit; that the alleged report on the allotment application of Harish Kumar is false and incorrect and is not admissible in evidence; that in view of the impugned order, objections have been filed by the revisionist before the Magistrate on 23.03.2012 and matter is sub-judice before the Magistrate; that the Magistrate if finds sufficient ground has every right to recall the impugned order of attachment; that the impugned order is an interim order and revision against the same is not legally maintainable, in view of law laid down by Rajasthan High Court in the case of Yaqub Ali vs. State of Rajasthan 1995 CriLJ 1376.
Upon hearing the learned counsel for the revisionist and State and perusal of record before proceeding further I deem it fit to re-produce the relevant provisions of Sections 145(1) & 146(1) of the Code of Criminal Procedure.
"145. Procedure where dispute concerning land or water is likely to cause breach of peace-(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
146. Power to attach subject of dispute and to appoint receiver-(1) If the Magistrate at any time after making the order under sub-Section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof."
It is settled principle of law that title of a property may only be decided by the competent Civil Courts and under the provisions of Sections 145 and 146 Cr.P.C., the Executive Magistrate may take action in respect of a dispute only about actual possession over the property, where there is apprehension breach of peace due to above dispute. Prior to 2011 in a number of cases, it was held that an order of attachment under Section 146(1) Cr.P.C. is an interlocutory order against which revision is not maintainable under the provisions of Section 397 Cr.P.C. However, in due course of time, the matter of maintainability of revision was referred to full Bench and the full Bench of this Court in the case of Munna Singh @ Shivji Singh and others Vs. State of U.P. 2011 (9) ADJ 1998 held that "An order of attachment under Section 146(1) Cr.P.C. is an order of movement which has effect on the right of party in possession-cannot therefore, be said to be mere interlocutory order so as to bar revisional jurisdiction of High Court.
Invoking of the emergency powers under Section 146(1) Cr.P.C. is dependent on satisfaction of Magistrate-When none of parties are in possession, or Magistrate is unable to decide as to which of the parties was in possession, exercise of emergency power can be resorted to.
Where rights of parties affected, that is not an interlocutory order of attachment and depends upon facts of each particular case.
Order under Sections 145(1) & 146(1) Cr.P.C. are not in every circumstance, orders simplicitor-therefore a revision would be maintainable depending on facts involved in each case."
In view of the law laid down by the full Bench of this Court, the contention of learned A.G.A that impugned order is an interlocutory order and revision against the same is not maintainable may not be accepted and the revision may not be dismissed as not maintainable. In view of above case law by Full Bench, the judgment passed in the case of Yaqub Ali (supra) by a single judge of Rajashthan High Court has no force.
The learned counsel for the revisionist has contended that the civil suit is pending in respect of the property in question and in the case of Ram Sumer Puri Mahant Vs. State of U.P. AIR 1985 SCC 472 the Apex Court has held that initiation of a parallel proceedings under Section 145 Cr.P.C., during pendency of a civil litigation involving the question of the possession of same property, is not justified. On this point, learned counsel has referred to the copy of order dated 29.03.2010 passed by Civil Judge (Jr. Div.) Mathura in Misc. Case No. 109 of 2008 permitting the revisionist to deposit rent in favour of Smt. Jamuna Devi under Section 30(1) of U.P. Act No. XIII of 1972 at his own risk, without prejudice to the rights of parties. Learned counsel for the revisionist has failed to give particulars of pendency any civil suit in respect of the property in question before the Civil Courts between the parties and has not referred to any paper or particulars. There is nothing on record to show the pendency of any civil suit between the parties in respect of the title or possession of the property in question. The order dated 29.03.2010 passed by Civil Judge (Jr. Div.) Mathura in disposal of miscellaneous proceedings of Misc. Case No. 109 of 2008 under Section 30(1) of U.P. Act No. XIII of 1972, may not be considered as a pending civil suit and the same has been passed in misc. proceedings which do not determine the right, title or possession of the parties. In view of above, the contention of learned counsel for the revisionist that the proceeding under Section 145 Cr.P.C. are not maintainable on account of pendency of civil suit, in view of law laid down by the Apex Court in the case of Ram Sumer Puri Mahant (Supra), has no force and is liable to be rejected.
From the perusal of provisions of Sections 145 and 146 Cr.P.C. it is crystal clear that the proceedings under Sections 145 and 146 Cr.P.C. can only be in respect of the possession over the immovable property and the criminal court has no jurisdiction to decide the title, which jurisdiction vests only in Civil Courts. The perusal of impugned orders under Sections 145(1) and 146(1) Cr.P.C. shows that the learned Magistrate in the impugned orders has mentioned that Inspector Kotwali Mathura, in his report dated 13.03.2012 has mentioned that the property in question is a double storied house in an area of 480 sq. yards bearing Water Rate No. 202/103, which has been sold by Smt. Jamuna Devi to Pradeep Kumar, Brijwasi Agarwal and Shyam Sunder on 03.06.2011 for a consideration of Rs. 37 lakhs. It has also been mentioned that in the portion of Ist party Shyam Sunder, (opposite party no. 2) Indramohan Gautam the IInd party (revisionist) is residing and claims to be a tenant and also claims to be depositing rent in Court, while the other two portions which are in occupation of Pradeep Kumar and Brijwasi Agarwal and that Ist party Shyam Sunder asked IInd party Indramohan Gautam to vacate the house for which he made a demand of Rs. 5,50,000/- for vacating the house and the same was paid by Ist party Shyam Sunder, IInd party Indramohan Gautam despite which he did not vacate the house, so there is tension and apprehension of breach of peace. He has mentioned in the impugned order that "प्रभारी निरीक्षक कोतवाली मथुरा की आख्या से यह भी स्पष्ट होता है कि शान्ति व्यवस्था भंग होने से इंकार नहीं किया जा सकता l अतः दंड प्रक्रिया संहिता कि धारा- 145(1) के अन्तर्गत कि गयी कार्यवाही पूर्ण होने तक मौके पर शान्ति व्यवस्था बनाये रखने के दृष्टिकोण से मै विनोद सिंह चौधरी नगर मजिस्ट्रेट मथुरा अन्तर्गत धारा 146(1) दंड प्रक्रिया संहिता में दिए गये अधिकारों का प्रयोग करते हुए विवादित मकान को कुर्क करता हूँ l" in his order under Section 145(1) the Magistrate has mentioned that "प्रभारी निरीक्षक कोतवाली मथुरा की आख्या दिनांक 13.02.2012 से संतुष्ट होकर आदेश देता हूँ कि उभय पक्ष विवादित मकान के मालिकाना हक के संबंध में नियत दिनांक 23.03.2012 को प्रातः 10:00 बजे अधोहस्ताक्षरी के न्यायलय में उपस्थित होकर अपना अपना लिखित व मौखिक साक्ष्य प्रस्तुत करें यदि ऐसा न करने में कोई भी पक्ष असमर्थ होता है तो यह माना जायेगा कि उन्हें कुछ नहीं कहना है l"
The perusal of impugned order under Section 145(1) Cr.P.C. shows that the City Magistrate, Mathura at the time of passing of the impugned order, has not taken care of going through the provisions of Sections 145 and 146 Cr.P.C. The Section 145 Cr.P.C., clearly provides that the Magistrate can only decide the dispute between the parties about their respective claims as respect to actual possession of the subject of dispute but by the impugned order dated 09.03.2012 under Section 145(1) Cr.P.C. the Magistrate has issued notice for filing written statements in respect of the right and title over the disputed house, instead of actual possession.
Similarly, Section 146(1) Cr.P.C. provides that, the Magistrate at any time after making order under Section 145(1) Cr.P.C., if considers the case to be of emergency or if he decides that none of the parties was in possession or he is unable to satisfy himself as to which of them was there in such possession of the subject of dispute, he may attach the subject of dispute, until a competent court has determined the rights of parties thereto with regard to person entitled to the possession thereof. In the impugned order dated 09.03.2012 under Section 146(1) Cr.P.C. the Magistrate has now here mentioned that there is a case of emergency for issuance of order of attachment else there will be breach of peace and in absence of any emergency, the mere contention of one party about the apprehension of breach of peace may not be sufficient for issuance of order of attachment under Section 146(1) Cr.P.C. In the case of Ashok Kumar Vs. State of Uttrakhand (2013)3 SCC 366, the Apex Court is held that "Mere apprehension of breach of peace does not constitute the case of emergency before passing of order of attachment, the Magistrate must be satisfied from material on record, about the existence of situation of emergency and must explain circumstances on the date considered it to be a case of emergency.
If after inquiry under Section 145 Cr.P.C. Magistrate is of opinion that none of the parties was in actual possession of the subject of dispute at the time of passing an order under Section 145(1) Cr.P.C. or is unable to decide which of the party was in such possession, only then he may attach subject of dispute, until a competent court is determined the rights of parties thereto with regard to person entitled to possession thereof.
But when the reports indicate that one of the parties is in possession, rightly or wrongly, Magistrate cannot be passed an order of attachment on ground of emergency."
In view of discussions made above, I find that since the Magistrate in the impugned order under Section 145(1) Cr.P.C. has called upon the second party to file written statement in respect of rights and title instead of actual possession of subject of dispute, the impugned order may not be considered to be in accordance with the provisions of Section 145(1) Cr.P.C. and may not be considered to be a legal order. The learned Magistrate has committed glaring mistake which makes the impugned order under Section 145(1) Cr.P.C. wrong and illegal. Similarly, in the impugned order under Section 146(1) Cr.P.C. the Magistrate has no - where found the case to be one of emergency regarding the apprehension of breach of peace and since it is clear from the police report that the IInd party/revisionist was in actual physical possession over the property in question, irrespective of the rights and title of parties and the alleged deal of vacating the house for a sum of Rs. 5,50,000/- and alleged payment thereof, as mentioned in the impugned order, the impugned order may not be considered to be legal and valid. The Magistrate has committed grave mistake in passing the impugned order of attachment without there being any state of emergency, despite the fact that the IInd party/revisionist is said to be in actual physical possession over the house in question and the Ist party/opposite party no. 2 does not claim himself to be in actual physical possession over the house in question. It is also pertinent to mention that Ist party/opposite party no. 2, who has not appeared at the time of hearing of the revision has filed counter affidavit on 29.04.2013, in para 3 for which he has specifically mentioned that revisionist Indramohan Gautam is in illegal possession of the disputed property in question on the basis of forged and unregistered document dated 20.02.1992.
As laid down by the Apex Court in the case of Ashok Kumar (supra) the nature of possession may not be taken into account at the time of issuance of order under Section 146(1) Cr.P.C.
In view of the discussions made above, I have come to the conclusion that the impugned order dated 09.03.2012 passed by City Magistrate, Mathura in Case No. 24 of 2011 under Sections 145(1) and 146(1) Cr.P.C. are wrong and illegal and are liable to be set aside and the revision is liable to be allowed.
The revision is allowed and the impugned order dated 09.03.2012 passed by City Magistrate, Mathura in Case No. 24 of 2011 under Sections 145(1) and 146(1) Cr.P.C. are set aside.
Interim order, if any, stands vacated.
Let a copy of order be sent to court below for expeditious disposal of application under Section 145 Cr.P.C. of opposite party no. 2, in accordance with law.
Order Date :- 25.08.2017 Sanjeet