Allahabad High Court
Naval Kishore And 2 Others vs State Of U.P. And 3 Others on 16 August, 2022
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 67 Case :- CRIMINAL REVISION No. - 2610 of 2022 Revisionist :- Naval Kishore And 2 Others Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Bala Nath Mishra,Ram Vishal Mishra,Sachin Mishra Counsel for Opposite Party :- G.A.,Indra Jit Singh,Rakesh Chandra Upadhyay,Sharad Tripathi Hon'ble Rahul Chaturvedi,J.
1. Pursuant to my earlier orders of this Court dated 08.08.2022, the Court was compelled to call Sri Prabhakar Chaudhary, S.S.P.,Agra and Sri Bhupendra Singh, S.H.O., Tajganj, Agra before the Court. On the earlier occasion dated 19.07.2022, the S.H.O., Tajganj, Agra was summoned but his conspicuous absence in the defiance of this Court's earlier order has compelled the Court to summon the S.S.P, Agra. Both the police officials are present before this Court today.
2. Heard S/Shri Bala Nath Mishra, Sri Sachin Mishra, learned counsel for the revisionists, Sri O.P.Singh, Senior Advocate assisted by Rakesh Chandra Upadhyay, learned counsel for the opposite party and learned AGA for the State and perused the record.
3. This is an interesting case, whereby, the S.H.O. of P.S. Tajganj assuming the powers of civil court have decided the title and the ownership over property in dispute in the proceeding under Section 145 and 146 Cr.P.C. and have handed over the property to the person of his choice i.e. opposite party nos. 3 and 4. The concerned City Magistrate, Agra blindly toeing the lines of S.H.O., Tajganj, vide impugned order dated 31.05.2022 have dropped the proceeding under Section 145(5) Cr.P.C. and have consciously passed the ambiguous order dated 31.05.2022 giving full opportunity to the concerned S.H.O. to interpret the order in his own way and hand over the keys & possession to opposite party nos. 3 and 4.
It is pertinent to mention here that property in question is still subject matter of civil suit in which interim injunction order is in favour of the revisionists but ignoring the parallel proceedings before the civil court, concerned City Magistrate, Agra and S.H.O., Tajganj, Agra have committed a judicial blunder by keeping the injunction order at bay, just to benefit his own person (opposite party nos. 3 and 4) have committed all these illegalities & irregularities, ignoring the settled principles and norms in this regard.
4. This is the crux of the revision, which has to be adjudicated by this Court.
5. By means of the instant revision, the revisionists are jointly assailing the legality and validity of the order passed by the then S.I.-Sri Amar Malik, P.S. Tajganj, District Agra dated 26.04.2022 and present impugned order passed by IVth Additional City Magistrate Agra (respondent no.2) dated 31.05.2022, whereby the concerned City Magistrate have passed an ambiguous order, giving long rope to the S.H.O., Tajganj interpret the same in his own way, and thus has handed over the possession & keys to the opposite party nos. 3 and 4, under the teeth of injunction order about the same shop, by the learned Civil Judge(S.D.), Agra.
6. The perusal of the order impugned gives a bird's eye view of the entire controversy involved, which is spelled here-in-below:-
7. At the outset, it is submitted that the entire controversy revolves around Shop No. 15/77A, M.P. Pura, Fatehabad Road, Tajganj, Agra, where the revisionists were running Sweet Mart Shop under the name and style of "Shree Ji Mishtan Bhandar". The shop in question was initially owned by one Brijendra Kushwaha @ Brijendra Singh who was recorded as tenure holder of concerned Khasra as per the records of Nagar Nigam, Agra. The said khasra owing as many as ten shops over the place, out of which shop no. 15/77A, M.P.Pura, Fatehabad Road, Tajganj, Agra was given to the revisionists as his tenants. The revisionists remained in the said shop from 22.06.2006 to 2016 after executing an annual rental agreements on various successive years signed by Brijendra Kushwaha and the revisionists. There was no dispute between the revisionists and Brijendra Kushwaha up to the year 2013. It seems that dispute was cropped up between collaterals of Brijendra Kushwaha and qua him, who filed a civil suit as Original Suit No. 1271 of 2013, Inre: Sri Amar Singh and others Vs. Sri Vivek Gupta and others making Shree Ji Mishtan Bhandar as well as Brijendra Kushwaha as its defendants.
8. It is also surfaced from the records of the case, that some dispute were also cropped up between the revisionists and Brijendra Kushwaha, (the owner of the property) and thus the revisionists has filed civil suit bearing Original Suit No. 1240 of 2014 Inre: Sri Nawal Kishore and others Vs. Sri Brijendra Singh and others with the prayer to issue a decree of permanent prohibitory injunction in favour of the plaintiffs(revisionists) against the defendants, restraining the defendants or his agents/successors/associates not to interfere in plaintiff's peaceful possession over the property (shop in dispute).
9. Initially, learned Civil Judge (S.D.), Agra vide order dated 09.09.2014 keeping in view the plaintiffs(revisionists) are in the actual physical possession and doing their business from the aforesaid property/shop in question, have directed to parties to maintain status quo over the site and after exchange of pleadings have eventually allowed the plaintiffs(revisionists) ''8C' application vide order dated 13.10.2021 granting temporary injunction in favour of the plaintiffs(revisionists) during pendency of suit and as such on the strength of status quo, thereafter injunction order the revisionists/plaintiffs,who are in the actual physical possession of shop in question, were doing their business work uninterruptedly & peacefully.
10. During the pendency of the aforesaid suit the defendant no.1 Brijendra Kushwaha died on 19.03.2015 thereafter descendant of late Brijendra Kushwaha, who were impleaded as defendants in place of Brijendra Kushwaha who have executed a sale deed in 2016 of the entire property in favour of Devendra Singh Chauhan and Sanjeev Singh Chauhan (opposite party nos. 3 and 4) by executing a sale deed dated 02.09.2016.
11. Interesting part of the issue is that there opposite party nos. 3 and 4 have consciously purchased the property, which is subject matter of litigation. Still they have decided to purchase it. It means they have purchased a litigation as well as the shop. Consequently, after purchasing the property under the litigation, they ave stepped into the shoes of the descendants of late Brijendra Kushwaha through the registered sale deed dated 02.09.2016.
12. Learned counsel for the revisionists submits, that as soon as they came to know that opposite party nos. 3 and 4 have purchased the property in question of the suit, they have moved an application under Order VI Rule 17 read with Section 151 of CPC, impleading Devendra Singh Chauhan and Sanjeev Singh Chauhan as defendant nos. 13 and 14 respectively with a suitable prayer to get them impleaded in the prayer part. This application was moved for impleading the aforesaid person as defendant nos.13 and 14 by making an application on 30.11.2021 which is remained undecided till date though pending since November 2021.
13. It is further contended that as soon as the opposite party nos. 3 and 4 have stepped into the shoes of erstwhile owner, they have tailored a fabricated story and lodged an FIR on 10.08.2021 as case crime no. 0546 of 2021 under Sections 406, 420, 384, 447, 120B, 323 and 504 IPC, P.S. Tajganj, District Agra and further in order to exert undue pressure upon the revisionists, the opposite party nos. 3 and 4 approached the S.I., Tajganj by cooking up an imaginary story regarding law & order situation and have managed to have police report under Section 145 Cr.P.C. addressed to IVth A.C.J.M., Agra on which the then, S.I. Tajganj without any proceeding on its own have given a "स्वप्रेरणा आख्या" requesting the authorities proceed under Section 145 Cr.P.C.. It is contended by the learned counsel for the revisionists, that this is a million dollar question that under how and what circumstances S.I., P.S.Tajganj, Agra has given this report to the City Magistrate with regard to the shop in question? The answer is quite obvious, which needs no elaboration, this report dated 11.09.2021 itself is a tainted and motivated one, just to oblige one of the contesting parties by the then S.I. Mr. Neeraj Kumar, P.S. Tajganj, Agra, a overzealous Sub-Inspector. It is further argued that till 11.09.2021, there was no proceedings pending for consideration by concerned City Magistrate, Agra under Section 145(1) Cr.P.C. namely, Neeraj Kumar.
14. After the aforesaid report, was submitted by Mr. Neeraj Kumar, S.I., Tajganj, Agra, thereafter, the opposite party nos. 3 and 4 moved an application under Section 145 Cr.P.C. as Computer Case No. D-2021101010008326/2021, Inre: Devendra Singh Chauhan and another Vs. Nawal Kishore and anothers, on which learned Additional City Magistrate-IVth , Agra issued notices under Section 145(1) Cr.P.C. to the revisionists relying upon the aforesaid reports of S.I.
15. It is contended by the counsel for the revisionists, that on one hand learned Civil Judge (S.D.), Agra, after hearing both the parties i.e. plaintiffs(revisionists)and the defendants nos. 1/1 to 1/6 and defendant no. 2 while deciding the Application 8C in O.S. No. 1240 of 2014 have confirmed the earlier order of maintaining the status quo over the site and this time has granted temporary injunction in favour of the plaintiffs(revisionists) on 13.10.2021. On the other hand, the concerned City Magistrate, Agra, despite of the fact, was full in knowledge of above temporary injunction on 30.11.2021, ignoring the same on 30.11.2021 passed an earlier order under Section 146(1) Cr.P.C. directing the Incharge Inspector, P.S. Tajganj, Agra to seal the property (shop) in dispute after taking its physical possession from the revisionist. The only ground spelled out in the order impugned, is that since opposite party nos. 3 and 4 are not parties as deficiencies in O.S. No. 1240 of 2014, thus the said temporary injunction would not be operational against them.
It is urged by the counsel for the revisionist that this is the bogus reasoning by the City Magistrate while passing the impugned order of seizure dated 30.11.2021. The property in question/subject matter of both the proceedings are the same i.e. 15/77A, M.P.Pura Fatehabad Road, Tajganj, Agra & opposite party nos. 3 and 4 came into picture in the year 2016. The temporary injunction was granted in favour of the plaintiffs(revisionists) on 13.10.2021 after hearing the rival parties at that time and if opposite party nos. 3 and 4 consciously stepped into the shoes of erstwhile defendants, then by implication of law, the said temporary injunction would also deemed to be applicable to them, the impleadment application for impleading the opposite party nos. 3 and 4 pending before concerned civil court for consideration and appropriate orders.
16. It is contended by the learned counsel for the revisionists that all these castle has been raised on an imaginary story and created a sham and frivolous threat to the peace and tranquillity to the society. It is further contended that where the police has played a partisan role in favour of the opposite party nos. 3 and 4 for the obvious reasons, who had given a report prior to the application of opposite party nos. 3 and 4 under Section 145(1) Cr.P.C.. On this application rapid action was ensured by the local police and the IVth Additional City Magistrate, Agra, while passing the order under Section 146(1) Cr.P.C..
Excercise of the powers of Section 145 & 146 Cr.P.C., is to maintain the peace, tranquillity & the order in the society. Though it is grey issue but in order to justifying its order under Sections 145/146 Cr.P.C, the concerned police as well as City Magistrate must spell out some confidence generating material on record justifying their objective satisfaction with regard to invoking its powers under Section 145/146 Cr.P.C. mere using of hyperbolic expressions would not going to justify the orders of City Magistrate or Sub-Inspector.
17. Meanwhile, the revisionists approached this Court by filing the Crl. Revision No. 1104 of 2021, in which this Court on 08.04.2022 passed the following order, the relevant extract is quoted herein below:-
"Order on Criminal Revision By means of the present criminal revision, the revisionist is assailing the legality and validity of the two orders under section 145(1) dated 30.11.2021 and its seizure under section 146(1) dated 02.12.2021.
Submission made by learned counsel for the revisionist is that despite of the clear cut interim injunction order, while allowing 8-C application on 13.10.2021, a parallel proceeding under section 145(1) and 146(1) has been initiated by respondent nos.3 and 4. Learned City Magistrate, without taking into account the interim order, has passed the aforesaid impugned orders. Learned counsel for the revisionist also submitted that it is settled principal of law that when the court of civil proceeding is already seized with the matter, the proceeding of 145 and 146 which are summary in nature, cannot be invoked.
Under the circumstances, let notice be issued to opposite party no.3 and 4 through the Chief Judicial Magistrate, Agra to file their detailed counter affidavit within next two weeks.
Learned A.G.A. who is representing opposite party nos.1 and 2 are also required to take suitable instructions in the matter and file relevant counter affidavit within the same period.
Learned counsel for the revisionist may also file rejoinder affidavit within three days thereafter.
Put up this matter as fresh on 28.04.2022."
18. From the order sheet of the criminal revision, it is clear that time was granted to learned AGA to file counter affidavit and the notices were issued to opposite party nos. 3 and 4 through CJM, Agra to file detailed counter affidavit but ignoring the directions of the Court to file detailed counter affidavit the opposite party nos. 3 and 4 on their own, surreptitiously on 20.04.2022, moved an application by concerned City Magistrate, Agra, in which they themselves certified that, there is no threat to the peace & tranquillity to the society & thus opposite party nos. 3 and 4 moved an application for dropping the proceedings under Sections 145(5) Cr.P.C. with additional prayer that property in question may be released in their (opposite party nos. 3 and 4) favour. This by itself is a strange prayer and perfect clever example to dupe and play jugglery with legal procedure. As observed above, the local police was dancing on the tune of opposite party nos. 3 and 4. This time Mr. Amar Malik, S.I. Tajganj, Agra came to rescue of opposite party nos. 3 and 4, who, after responding to the above application for dropping the proceedings under Section 145(5) Cr.P.C. have reported to letter to concerned City Magistrate, Agra on 26.04.2022, which reads thus:-
" महोदय, सादर अवगत करना है कि उपरोक्त प्रा०पत्र की जाँच मुझ उ०नि० द्वारा की गयी तो वाक्यात इस प्रकार पाये कि आवेदक-श्री देवेन्द्र सिंह चौहान पुत्र श्री इन्दल सिंह चौहान निवासी-15/77एम०पी०पुरा, गुम्मट थाना-ताजगंज जनपद-आगरा द्वारा बास्ते अन्तर्गत धारा-145(5) सी०आर०पी०सी० मे विवादित सम्पत्ति सख्या-15/77ए को अवमुक्त किये जाने के सम्बन्ध मे आवेदन किया गया है। उपरोक्त विवादित सम्पत्ति के सम्बन्ध मे बाद सख्या- 8326/2021 अन्तर्गत धारा-145 सी०आर०पी०सी० के अनुपालन मे दोनो पक्षो की मौजूदगी मे कुर्की की कार्यवाही-दिनाँक-02/12/2021 को की जा चुकी है उसी दिन से विपक्षी-नवलकिशोर, सुषमा देवी, कैलादेवी द्वारा श्री०जी० मिष्ठान भण्डार की दुकान को विवादित सम्पत्ति के सामने सड़क पार सम्पत्ति सख्या-18/162/एच-1 मे दुकान खोलकर सुचारु रुप से चलायी जा रही है। उपरोक्त कार्यवाही के वाद दोनो पक्षो मे किसी प्रकार की कोई शान्ती-व्यवस्था भंग नही की गयी है और कोई विवाद नही है अतः उक्त सम्पत्ति को नियमानुसार जायज मालिक के हक मे अवमुक्त किये जाने के सम्बन्ध मे थाना-हाजा को कोई आपत्ति नही है।"
The expression "जायज मालिक" is very much significant expression used by concern Sub-Inspector here, of which the concerned police officer of Tajganj deliberately used this expression, to keep these blanks open, to be used by him in future.
19. The aforesaid application was remained pending. From the order sheet it is culled out that the aforesaid application was filed on 20.04.2022 but on 23.05.2022 behind the back of the revisionists, the matter was heard ex-parte and eventually the impugned order, whereby the proceeding of Section 145 Cr.P.C. was dropped and all the previous orders were stand quashed in the light of the unilateral declaration by the opposite party nos. 3 and 4, that there is no dispute over the property in question, directing the S.H.O., P.S. Tajganj, Agra to release the property in question bearing no. 15/77A, M.P.Pura, Fatehabad Road,Tajganj, Agra from the alleged seizure within a week. The concerned S.H.O. readily obeyed and released the property in question in favour of opposite party nos. 3 and 4.
The order impugned dated 31.05.2022 records thus :-
"आदेश सम्पत्ति संख्या 15/77ए एम०पी०पुरा के सम्बन्ध में वाद संख्या डी 202101010008326 अन्तर्गत धारा-145 द०प्र०स० की समस्त कार्यवाही को उक्त धारा की उपधारा 145(5) के अन्तर्गत रोका जाता है एवं समस्त आदेश रद्द किये जाते है। धारा 146(1) के अन्तर्गत विवादित सम्पत्ति के सम्बन्ध में पक्षकारों के मध्य कब्जे का विवाद न रह जाने के कारण परिशान्ति भंग की सम्भावना नहीं होने के आधार पर उक्त सम्पत्ति की कुर्की वापस ली जाती है। प्रभारी निरीक्षक ताजगंज आगरा को निर्देशित किया जाता है कि सम्पत्ति संख्या 15/77ए एम०पी०पुरा को कुर्की से अवमुक्त कर अनुपालन आख्या एक सप्ताह में न्यायालय को प्रस्तुत करें। पत्रावली वाद आवश्यक कार्यवाही दाखिल दफ्तर की जाए।"
Suffice to say the order of City Magistrate, Agra on his own has passed an ambiguous order without specifying to whom the property in question be handed over. It is no where specifies that, after the seizure would lifted, to whom the property would be handed over. Taking the advantage of these blanks, the concerned S.I. Tajganj, Agra dishonestly released the shops in question in favour of opposite party nos. 3 and 4, though the same were taken from the revisionists. It is aruged, that in all fairness, the concerned S.I. should have return back the property in question from whom he has taken.
20. Per contra Sri O.P.Singh, learned Senior Counsel filed a detailed counter affidavit mentioning that revisionists have never paid any rent and were illegally occupied the property in question, neither he had deposited any agreed rent to the erstwhile owner Brijendra Kushwaha nor to his legal heirs or to his representatives and occupying the property in question. All these arguments are tangent to the primary issue, But he could not dispute the fact that there is temporary injunction in favour of plaintiffs(revsionists) of Original Suit No. 1240 of 2014. It is further contended by the counsel that the said interim order would not be operative against the opposite party nos. 3 and 4 as they are not the party in the aforesaid proceeding.
21. Sri O.P.Singh, learned Senior Counsel was completely at the loss to justify the conduct of concerned police officer of Tajganj, Agra, who after playing gimmick with the procedure of the law and have assured the powers of civil court, have decided the ownership and possession of the property on his own under the teeth of temporary injunction which is still operational in favour of revisionists have delivered the keys & possession to opposite party nos. 3 and 4.
This is basic crux, long and short of the entire controversy.
22. After hearing the learned counsel of both the parties and putting the aforesaid facts in the linear way, it is abundantly clear that property in question is 15/77A, M.P.Pura, Fatehabad Road, Tajganj, Agra which is under actual physical possession of the revsionists and prior to initiate the proceeding and pursuant to the orders of Section 146(1) Cr.P.C., the concerned S.H.O. vide order dated 02.12.2021 has taken the possession of the property in question from the revisionists itself, then in all fairness, the concerned SHO ought to have handed over the keys to the person from whom he has taken the possession and should not have decided the title or the question of possession on his own. The concerned S.H.O. has clearly transgress his limits by handing over the property in dispute i.e. shop no. 15/77A, M.P.Pura, Fatehabad Road, Tajganj, Agra to the opposite party no.3 and 4.
23. After coming to know this development behind the back, the plaintiffs(revsionists) immediately on 03.06.2022 moved an application to recall the exparte order dated 31.05.2022 before the Additional City Magistrate-IVth, Agra but it is alleged by learned counsel for the revisionist, that City Magistrate and the local police of P.S. Tajganj, Agra are hand in gloves with each other and as such the said application was rejected by the concerned Additional City Magistrate-IVth, Agra by making a mention that after passing the order under Section 145(5)Cr.P.C., the court cannot recall its own order and become ''functus officio' and thus rejected the said recall application.
24. The City Magistrate has passed palpably vague and ambiguous order without making any mention or clarifying to whom the property in question should be handed over. The Magistrate ought to have clearly specified with the property in question should be handed over to the revisionists but these ambiguity was kept purposely by the Additional City Magistrate in its order to extend benefits to the opposite party nos. 3 and 4. Taking the advantage of this void the partisan S.H.O. of P.S. Tajganj had played fraud upon the procedure of the Court and has clearly played partisan role while handing over the property to his own person i.e. opposite party nos. 3 and 4, by making the entire civil proceeding to a BIG ZERO. The SHO concerned is not permitted to hold a court of decide the title or possession of the property in question under Chapter X Part ''D' of the Code of Criminal Procedure.
25. It is settled principle of law that the proceeding under Section 145 Cr.P.C. and 146 Cr.P.C. are summary in nature and the power is conferred upon the executive Magistrate. The object of this part is merely to maintain law and order and to prevent to breach of peace by maintaining one or other parties of the possession, which the court finds that they had immediately before the dispute and until the actual right of one of the parties has been determined by the civil court. The Magistrate should careful enough to see that the criminal court are not being used by the parties for the settlement of civil dispute or for manoeuvring of possession for the previous and subsequent civil litigation or easy way of keeping the possession of the property in dispute without going to the civil court or for driving the other side of the civil court to prove his title. The action which may ultimately be taken is not of punitive but preventive one and for that purposes of is provisional only, until such time, a formal adjudication over the rights affected may be obtained and carried into effect by the competent court to deal with the matter in due course of law. The action to be taken is quasi executive action, and having for its object and justification. The prevention of breach of public peace, the existence of dispute is likely ot cause breach of peace is a condition laying at the root of the power conferred.
26. Putting all these orders in the line, this Court has regrettably deprecate the conduct of the concerned Additional City Magistrate,Agra and warns to act fairly in future, and quashed his order dated 31.05.2022 and expunge the orders of S.H.O., dated 26.04.2022 and 04.06.2022 (rejecting the application to recall his order dated 31.05.2022).
27. I.G., Agra Range/ SSP, Agra is directed that
(i) to hold indepth inquiry into the matter within 15 days from the date of production of certified copy of this order before them and take a suitable disciplinary action against the present S.H.O., P.S. Tajganj, Agra, and all other concerned Sub-Inspectors who involve in this scam, who have illegally handed over the keys of the shop in question to the opposite party nos. 3 and 4 after playing partisan role.
(ii) After quashing all the three orders as mentioned above, S.S.P., Agra is directed to ensure that the shop in question no. 15/77A M.P.Pura, Fatehabad Road, Tajganj, Agra should be immediately taken a vacant actual physical possession from the opposite party nos. 3 and 4 and shall put a lock and key after sealing the property latest by 10.09.2022 positively.
(iii) Circle Officer, Tajganj, Agra shall give a recent report after assessing the peace and tranquillity, the justification and the exigency of imposing Section 145/146 Cr.P.C.in the nearby area on account of seizure of the property and furnish the aforesaid report to the new City Magistrate dealing with the issue.
(iv) District Magistrate, Agra is requested to confer the records of the case to some other City Magistrate to re-visit and re-decide the entire issue after taking into account the settled principles of law in this regard within next two months after hearing both the parties, in the light of settled principles of law laid down by Hon'ble Apex Court and this Court.
28. With this observation, the present criminal revision stands ALLOWED with the aforesaid conditions.
Order Date :- 16.8.2022 Abhishek Sri.