Allahabad High Court
Rajkeshwar vs State Of U.P. And 2 Others on 19 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 53 Case :- CRIMINAL REVISION No. - 1738 of 2013 Revisionist :- Rajkeshwar Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Ashok Kumar Srivastava,Ganesh Counsel for Opposite Party :- Govt. Advocate,N.D. Upadhyay,Vinay Bhushan Hon'ble Umesh Chandra Sharma,J.
1. Heard Mr. Ganesh, learned counsel for the revisionist and learned Additional Government Advocate. None appeared from the side of opposite party no.2 to argue the case. Perused the material available on record.
2. This criminal revision has been preferred against the order passed by opposite party no.2/Sub-Divisional Magistrate, Robertsganj, District Sonbhadra dated 02.05.2013 in Case No.39 of 2013 (Smt. Prema Devi Vs. Rajkeshwar Yadav), under Section 145 CrPC, Police Station Kone, District Sonbhadra whereby the land being Araji nos.4, 5, 11, 15, 313, 721 722, 749, 767/1 and 267/202 total 11 gata area 1.0.912 hectare had been attached under section 146 (1) CrPC.
3. The facts in brief of the case are that on the report of Station House Officer, Police Station Kone that there was breach of peace with regard to the aforesaid plot numbers and there was essentiality of attachment of the aforesaid plots under Section 146(1) CrPC the Sub-divisional Magistrate convinced with the report of the concerned SHO attached the aforesaid plots under Section 146(1) CrPC vide order dated 02.05.2013. Before passing the impugned order, a preliminary order under Section 145(1) CrPC had also been passed by the concerned SDM. Being aggrieved from the order of the SDM, this revision petition has been preferred.
4. Facts of the case are that Prema Devi opposite party no.3 moved an application under Section 145 CrPC before the concerned SDM stating that respondent no.7, Jag Narayan (now deceased) son of Tulsi had 1/5th share in property in question which was also in his use and occupation, was, later on, purchased by Prema Devi and her name had also been mutated in the revenue records. Opposite party nos.2 to 5, 7 & 8 are the real tenure holder and respondent no.1 - Rajkeshwar is also recorded co-tenure holder after execution of sale deed from Satya Narayan and Raj Narayan son of Tulsi. Respondent nos.6 and 9 purchased the shares through sale deed from Shiv Prasad father of respondent no.8 and respondent nos.2 to 5 respectively and have become co-tenure holder. Gata no.773(ka) is a valuable property on the main pitch road of Kone to Telgudwa Road in which all the brothers and the purchasers have the share and title.
5. On the basis of money and muscle power opposite party no.1 tried to occupy the part of land adjoining to the road since month of June, 2011 after purchasing the land from two sons of Tulsi. A case for partition had also been filed by Prema Devi in which an interim stay order has also been passed but opposite party no.1 is adamant to change the nature of property in question in any manner and on the request, not to do so, he is adamant to commit offence and cause injury to her and her family members, hence if the property in question is not attached, an untoward incident might be occurred at any time.
6. The application was considered by the Sub-Divisional Magistrate and SHO, Kone, Sonbhadra was directed to send a report for attachment of the property in question under Sections 145/146 CrPC. The report was submitted by concerned SHO and thereafter, the impugned order had been passed by the SDM, which is under challenge before this Court.
7. In this revision, the Revisionist has taken ground that the police report clearly indicates that the revisionist is in possession of the property in question, hence no order for its attachment could be passed. The order under Section 145(1) CrPC and the order under Section 146(1) CrPC have been passed on the same day i.e. 02.05.2013 thus the order under Section 145(1) is wholly illegal and without jurisdiction. The impugned order is an ex parte order without awaiting the written statement. In Suit No.235 of 20211, under Section 176 of the UPZA & LR Act, order to maintain status quo has also been passed on 26.04.2011. Actually, there was no circumstance existing in which aforesaid order could be passed concluding any emergency. Both the orders are bad in law as there was also an order to maintain status quo passed by the Revenue Court in respect of the same land in between the same parties, hence the impugned order is liable to be quashed and the same be quashed.
8. Learned counsel for the applicant relied upon the judgement Ashok Kumar Vs. State of Uttarakhand and others reported in 2013 (3) SCC 366 in which it has been laid down that the Magistrate can act under Sections 145 and 146 CrPC, only when he is unable to decide as to which of the party was in possession. The property can be attached only in case of emergency as contemplated under Section 146 CrPC and mere apprehension of breach of peace cannot be ground to pass an order under Section 146 CrPC, if a suit is pending. It is for the Civil Court to decide as to who was in possession on the date of filing of the suit.
9. On behalf of the opposite party nos.1 and 2, a counter affidavit has been filed in which it has been stated that before passing of impugned order since Rajkeshwar was already in possession and the property in question had been sold to Prema Devi, therefore, a marpeet took place between the parties and for the same, two criminal cases being Case Crime No.210 of 2012, under Sections 523, 504, 506 & 325 IPC and Case Crime No.210A of 2012, under Sections 323, 504, 506 & 308 IPC were lodged by both the parties against each other in which after investigation, charge-sheet had been submitted, however a Suit No.235 of 2011, under Section 176 of the UPZA & LR Act was also pending in which parties were directed to maintain status quo over the land in question but the revisionist tried to obtain forcible possession over the same, due to which, there was apprehension of breach of peace between the parties, therefore, SHO, Kone had submitted a report before opposite party no.2 regarding apprehension of breach of peace between the parties and search proceeding under Section 146(1) CrPC was required to be undertaken.
10. Opposite party no.2 after considering the report, concluded that any untoward incident will take place between the parties, hence by order dated 02.05.2013 attached the property in question and directed the SHO to give the aforesaid property in custody of any supurdgar with condition that till date the property in question will remain under the supervision of Police Station Kone. The order passed by opposite party no.2 is just, appropriate and legal order which does not suffer from any illegality or infirmity. Hence, the application be rejected.
11. A rejoinder affidavit has been filed by the applicant denying the allegations of the counter affidavit that a Suit No.235 of 2011, under Section 176 of UPZA & LR Act about the disputed land is pending in which an order to maintain status quo has been passed by SDM, Robertsganj on 24.06.2011 and the same is still effective. The name of the revisionist has been shown as Bhumidhar, with transferable right in the revenue record of fasli year 1427-1431. On the basis of the contention of the applicant and the rejoinder affidavit, the order dated 02.05.2013 is liable to be vacated.
12. From the above discussion, it is very much clear that about the property in question, a partition suit is pending in Revenue Court in which interim stay order to maintain status quo is also passed and is still in operation. From the records, it also transpires that no report had been transmitted by SHO, Police Station Kone to the learned SDM that there was any apprehension of breach of peace but rather the learned SDM himself directed SO, Kone after getting the report from opposite party no.3 for sending the report for taking action under Sections 145 and 146 CrPC, which is against the provisions of law. Thus, it transpires that since the superior officer had directed the SHO to send a positive report, hence the concerned report had been sent by SHO, Kone upon which SDM passed the impugned order.
13. This Court is also unable to understand that when the Revenue Court had taken cognizance of the property in question and had passed stay order, it was not open for the SDM to proceed with the matter under Sections 145 and 146 CrPC. When a Court's interim stay order was already into existence, the same could be complied with in due course of law by the Revenue Court and there was no occasion for the SDM to exercise the duty under the Code of Criminal Procedure. Though it has also come to knowledge that both the parties had lodged FIR against each other and the parties would have been enlarged on bail on certain conditions, hence it does not look any possibility of breach of peace again in the near future. It is also noteworthy that both the orders under Sections 145 & 146 CrPC have been passed simultaneously and on the same day i.e. 02.05.2013, which is against the provisions of law. It appears that the SDM had already made up the mind to pass the impugned order, hence both the orders were passed together by the learned SDM without affording opportunity to the revisionists.
14. The above findings also find support from the following judicial precedents which are as under:
(a) In Manika Shahu Vs. Dandapani Shahu, 1986 CrLJ 287, it has been held that when between the parties no partition by metes and bounds has taken place, then even when one is in possession over a land for convenience it is a possession of all co-sharers.
(b) In Suresh Kumar Vs. Vijay Kumar, 1988 CrLJ 977 Delhi, it has been held that a property which in joint possession is outside the ambit of Section 145 Cr.P.C. Magistrate can not decide the question of joint possession.
(c) In Ram Sumer Puri Vs. State of U.P., AIR 1985 SC 472, it has been held that where a civil litigation is pending for the property where the question of possession is involved, parallel proceeding in criminal Court is not justified. In such a situation the Apex Court quashed the proceeding before the Magistrate living it open to the parties to approach the Civil Court for injunction or Receiver or the like.
(d) In Iqbal Singh Vs. State of Haryana, 1985 CrLJ 1757 (P& H), it has been held that when Civil Court directs maintenance of status quo, it postulates that the Civil Court is not sure as to which party is in possession. It virtually directs that if the contention of either one of them supposedly was right then that position should be continued. In this backdrop the Magistrate can initiate proceeding to decide which party was in possession. For breach of peace he can invoke Section 107, Cr.P.C. Although he can not attach the property.
(e) In Anand Ram Vs. State of Delhi, 1986 CrLJ 2008, it has been held that when a civil suit is pending and the parties have been directed to maintain status quo, initiation of proceeding under Section 145 Cr.P.C. is improper.
(f) In Mohinder Singh Vs. Dilbagh Rai, 1977 CrLJ 1029, it has been held that in cases of dispute of possession civil court can pass three types of orders- (a) appointment of receiver; (b) granting injunction against a party; and (c) direction to maintain status quo. In first type of cases there can not be any dispute giving rise to proceeding under Section 145 Cr.P.C. In second type of cases jurisdiction of criminal court can not be restricted and if so required Magistrate may have to start a parallel proceeding but only to defend the order of civil court by not allowing the aggressor to come in violating the command of civil court. In third type of cases Magistrate may intervene but only to defend the civil court's order by maintaining status quo.
15. In view of the above discussion, this Court is of the considered conclusion that the impugned order is not liable to be sustained.
Order
16. This criminal revision is accordingly allowed and the impugned order dated 02.05.2013 passed by Sub-Divisional Magistrate, Robertsganj, District Sonbhadra in Case No.39 of 2013 (Smt. Prema Devi Vs. Rajkeshwar Yadav), under Section 146(1) CrPC is hereby quashed.
Order Date :- 19.4.2023 Shahroz/S.Verma/P.Mishra