Allahabad High Court
Vinod Mittal vs State Of U.P. And 3 Others on 25 October, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 53 A.F.R. Case :- CRIMINAL REVISION No. - 2198 of 2018 Revisionist :- Vinod Mittal Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Dhiraj Srivastava, Sri B.K. Srivastava, Sr. Adv. Counsel for Opposite Party:-G.A.,Manish Dev,Sri Satish Trivedi,Sr. Adv. Hon'ble J.J. Munir,J.
1. This Criminal Revision is directed against an order of the Sub-Divisional Magistrate, Saharanpur, dated 11.06.2018 passed under Section 146(1) Cr.P.C. in Case no.4927 of 2016, Rakesh Goesl vs. Sunil Gaba, under Section 145 Cr.P.C. ordering, pending determination of proceedings under Section 145 Cr.P.C. between parties, attachment of land hereinafter detailed, to be effected by the Station Officer, Police Station Rampur Maniharan, Saharanpur with a direction to keep the same under attachment till such time that the question of title or possession is decided by a decree or order of a court of competent jurisdiction.
2. Heard Sri B.K. Srivastava, Sr. Advocate assisted by Sri Dhiraj Srivastava, learned counsel appearing on behalf of the revisionist, Sri Satish Trivedi, Senior Advocate assisted by Sri Manish Dev Srivastava, learned counsel appearing on behalf of respondent no.4. and Sri Indrajeet Singh Yadav, learned AGA along with Sri Avaneesh Shukla appearing on behalf of the State.
3. The dispute giving rise to the instant revision involves lands comprising Khasra nos.592, 593, 599, 601, 602 and 614 of Village Chidhbana, Pargana, Tehsil and District Saharanpur and Khasra nos.86 and 87, of Village Chunehati Gada, Pargana, Tehsil and District Saharanpur, that are hereinafter referred to as the 'property in dispute'.
4. The revisionist along with six others, to wit, Sushil Kumar Gaba, Praveen Kumar Gaba, Smt. Kavita Mittal, Pradeep Mittal, Shiv Kumar Mittal and Arun Mittal are the second party to the proceedings under Section 145 Cr.P.C., wherein the order dated 11.06.2018 under Section 146(1) Cr.P.C. has been passed, that is hereinafter referred to as the impugned order.
5. The first party to the proceedings, who has invoked jurisdiction of the Magistrate under Section 145 Cr.P.C., is opposite party no.4 to this revision. The six others, constituting the second party to the proceedings under reference, are non-parties to this revision, as they appear to have not challenged the impugned order.
6. Looking to the scope of these proceedings, this Court does not propose to dilate on facts much. For the purpose of these proceedings, it would suffice that the property in dispute is owned by different private limited companies, that are all represented by the revisionist as Director/ Managing Director, in effective control of each of them, numbering six. These companies are: Consmos Infra Engineering (India) Ltd. having it's registered at 4, Battery Lane, Rajpur Road, Civil Lines, Delhi - 110054; Chavan Rishi Buildwell Pvt. Ltd. it's registered office at 4, Battery Lane, Rajpur Road, Civil Lines, Delhi - 110054; Ankur Infratech at 4, Battery Lane, Rajpur Road, Civil Lines, Delhi - 110054; Sunlighat Buildtech Pvt. Ltd. it's registered office at 4, Battery Lane, Rajpur Road, Civil Lines, Delhi - 110054; Sunview Realcon Pvt. Ltd. it's registered office at 4, Battery Lane, Rajpur Road, Civil Lines, Delhi - 110054; and, Silvercity Infratech Pvt. Ltd. it's registered office at 4, Battery Lane, Rajpur Road, Civil Lines, Delhi - 110054.
7. The said companies, between the years 2006 to 2008, purchased a total of 37.52 acres of land, bearing Khasra nos.600, 601, 602, 592, 593, 599, 647, 648, 599, 602, 624, 615, 616, 619, 2, 3, 5, 6, 7, 32, 33, 86 & 87 situate at Villages Chuneti Gada and Chidhbana, Pargana, Tehsil and District Saharanpur, acquiring valid title through lawful conveyances, about which there is no quarrel. The total land, thus, acquired by the six companies, is hereinafter to as the 'holding of the companies'. The property in dispute is a part of the holding of the companies aforesaid, held and controlled by the revisionist.
8. The six companies represented by the revisionist, or so to speak the revisionist, who is in effective control of the same in his directorial capacity, intended to develop the holding of the companies, including the property in dispute, as a residential township. In furtherance of the plan to develop a residential township, various steps were taken, like deposit of development charges with the Saharanpur Development Authority, Saharanpur, on 09.03.2011 in the sum of Rs.1.50 crores by the revisionist, who is one of the second opposite party to the proceedings before the Magistrate. The development plan was submitted to the said Development Authority by the revisionist that was forwarded to the State Government for their approval on 07.04.2011. At this juncture the revisionist's companies, decided to transfer for a valuable sale consideration of Rs.36,33,00,000/-, the property in dispute, out of the holding of the companies, being an area of 173 Bighas, in favour of Ajay Channa son of Sh. Jugul Kishor Channa, R/o 41-B Mission Compound, Saharanpur; Global Metalex Ltd. Rakesh Goel s/o Sh. Late Nand Kishore Goel, R/o 12/B, Mission Compound, Saharanpur; Parveen Gaba s/o late Lal Chand Gaba, R/o A-70, Prem Vatika Mission Compound, Saharanpur; Vinod Sharma son of late Sh. Mahendar Singh, R/o Basant Vihar, Saharanpur; and, Sushil Gaba son of Sh. Late Lal Chand Gaba, R/o A-70, Prem Vatika Mission Compound, Saharanpur.
9. In order to give effect to this contemplated sale a memorandum of understanding dated 11.11.2013 was executed between the six companies, owned and controlled by the revisionist, on the one hand, described in the MOU as 'owners', and, on the other, the six intending buyers, to wit, Ajay Channa, Global Metalex Ltd. Rakesh Goel, Parveen Gaba; Vinod Sharma, and, Sushil Gaba, described in MOU as 'purchasers'. It was covenanted in the MOU that a sum of Rs.1 crore is being paid at the time of execution of that document in the manner described in paragraph 1(a). It is also embodied in paragraph 1(a), (b) and (c), as to how the agreed consideration would be paid.
10. Amongst the purchasers, as it appears, they have formed themselves into a firm in the name and style of Krishna Associates with a equal share in it. By the MOU the purchasers had contracted to develop the property in dispute according to lay out and other plans to be secured sanction of by the revisionist, but the purchasers failed to pay anything beyond the sum of Rs.20 lakhs out of the agreed earnest of Rs.5 crores; not even Rs.1 crore covenanted to be paid contemporaneously with the execution of the MOU, was made good. The revisionist claims, that he invoked Clause 6 of the MOU to forfeit the eyewash of a sum of Rs.20 lakhs, paid towards earnest, and, treated the rights of the purchasers lapsed. Thereafter, the revisionist, who is the owner of the property in dispute in unqualified terms, and, wherein not even an interest attached to ownership of property has been created by means of a registered agreement to sell, enforceable at the suit of the purchasers, either for specific performance or damages, proceeded to submit his own lay out plan, to the Development Authority for the sanction of a township. It is claimed that the revisionist representing his six companies, that are owners of the property in dispute, have an untrammeled right in proesenti to develop the same the way he chooses.
11. Upon the revisionist acting to treat the obligations under the MOU avoided, opposite party no.4 lodged a First Information Report against the revisionist and others, under Sections 420, 467, 471 IPC on 17.09.2016, that came to be registered as Case Crime no.362 of 2016 at Police Station Sadar Bazar, District Saharanpur. The revisionist, along with two other co-accused, that includes persons from amongst the purchasers, who too were indicted, filed Criminal Misc. Writ Petition no.20946 of 2016, seeking to challenge the FIR aforesaid. This Court put the revisionist to terms, requiring refund of the sum of Rs.20 lakhs paid by opposite party no.4, together with interest @ 8%, through bank draft, that was ordered to be handed over to opposite party no.4, arrayed as respondent no.3, to the writ petition under reference. The revisionist delivered a demand draft worth Rs.20 lakhs, and, another worth Rs.4,65,975/- towards interest to opposite party no.4, in compliance.
12. It is urged that opposite party no.4, who is a businessman, was inclined to become a partner in the project of the revisionist, which is clearly stipulated in the MOU. However, having failed to abide by the terms and conditions of the said MOU, the rights of opposite party no.4, and, corresponding obligations of the revisionist stood dissolved. It is further pointed out that in order to blackmail the revisionist, and, in order to coerce him into settling the matter on disadvantageous terms, the fourth opposite party filed Original Suit no.419 of 2016, in the name of his company Globus Metlex Limited represented by its authorized signatory, Rakesh Goel (opposite party no.4 here) against the Saharanpur Development Authority through its Vice Chairman, and, the revisionist, arrayed as defendant nos.1 and 2 to the suit. The suit is one alleging breach of the MOU, and, claims the following material relief:
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13. It is submitted by the learned Senior Counsel appearing for the revisionist, that the suit as framed was not maintainable, much less sustainable, to the knowledge of opposite party no.4. He, accordingly, did not appear on 16.11.2017, resulting in dismissal of the suit aforesaid, in default of the plaintiff's appearance. It is urged on the foot of assertions in paragraph 14 of the affidavit here, that no restoration application has been filed, seeking restoration of the suit aforesaid to its original file and number. It is submitted by Sri Srivastava, learned Senior Advocate, that when nothing worked for the fourth opposite party, he took resort to proceedings under Section 145 Cr.P.C., claiming to be in actual physical possession of the property in dispute, and, its disturbance by the revisionist, by moving the police with allegations that the revisionist along with Sushil Gaba and some others, who are amongst the purchasers, are attempting to dissipate the property in dispute, whereof opposite party no.4 is in possession, with rights under the MOU. The police submitted a misconceived report to the Sub-Divisional Magistrate, Sadar, Saharanpur, saying that opposite party no.4, along with Sushil Gaba and others, had purchased the property in dispute, which Sushil Gaba and the revisionist, and, others, by committing forgery are attempting to transfer and dissipate, regarding which Case Crime no.362/2016, under Sections 420, 467, 478, 471 IPC has been registered, and, a charge sheet filed. It is said no more in the report than this, that till decision of the said criminal case, the property in dispute should be proceeded with under Section 145(1) Cr.P.C., and, attached under Section 146(1) Cr.P.C. It is the said report of the police/ Challani report, on the basis of which proceedings under Section 145 Cr.P.C. have been drawn, and, the impugned order passed.
14. It is submitted by learned Senior Counsel for the revisionist that the challani report aforesaid which is a report dated 27.10.2016, a copy of which is annexed as Annexure 6 to affidavit in support of the revision, does not speak about any apprehension of breach of peace, at all. Rather, it speaks about a title dispute, which has led to registration of a criminal case that is pending between parties, and, asks for initiation of proceedings under Section 145 Cr.P.C., together with an attachment order under Section 146(1) Cr.P.C. pending decision of the criminal case between parties. He submits that on the basis of such a report no proceedings under Section 145 Cr.P.C. could ever be initiated. There is no doubt a report from the Tehsil, dated 19.11.2016, signed by the rank and file of no less than six functionaries of the Tehsil, from the Lekhpal to the Tehsildar, who have endorsed the dispute about title to the property in dispute, and, apprehension of breach of peace, based on the police report.
15. It is pointed out that acting on the challani report of the SHO, the Circle Officer, Sadar, Saharanpur has recommended initiation of proceedings under Section 145 Cr.P.C. by his recommendation dated 28.10.2016, referred to by the SDM in his order under Section 145(1) Cr.P.C., initiating proceedings. The learned Senior Counsel, appearing for the revisionist, has taken the Court through the preliminary order dated 19.11.2016, under Section 145(1) Cr.P.C., which is based on the police challani report dated 27.10.2016, as endorsed by the CO on 28.10.2016. It refers to the dispute between parties and then the case crime registered alleging forgery, and, making of false documents, that is pending between parties. It takes notice of the fact that the property in dispute is lying vacant, as reported by the Tehsil authorities, where no agriculture is being done. It records the fact, what the Tehsil authorities have reported, in words that: "Vartman mein ukt samppatti mein krishi karya nahin ho raha hai, mauke par bhoomi khaali pari hai. Sthaniya poonchh tanchh mein ukt bhoomi mein aapsi vivad hona bataya hai. Police report mein ukt bhoomi ko khurd burd kar shanti bhang ki asanka vyakt ki hai."
16. It is pointed out that a perusal of the order dated 19.11.2016 shows, that without there being any basis to demonstrate, that there is a dispute relating to possession of immoveable property on the date when the preliminary order has been issued, under Section 145(1) Cr.P.C., or within two months ante-dating that time, the same has been passed on a police report, based on irrelevant material, that speaks about a title dispute between parties involving forgery, and, a criminal case brought against the revisionist, asking for attachment pending decision of the criminal case relating to forgery etc.
17. Sri Satish Trivedi, learned Senior Advocate, has come out strongly in support of the impugned order and submits that it is passed on valid grounds and relevant material. Likewise, the learned A.G.A. has supported the impugned order, mooting it to be upheld in the terms made.
18. A perusal of the police report dated 27.10.2016 does show, that there is nothing said there about apprehension of breach of peace, on account of a dispute relating to actual possession of immoveable property. The report speaks about forgery, a title dispute, and, Case Crime no.362 of 2016, under Sections 420, 467, 467, 471 and 120-B IPC, wherein a charge sheet has been filed. The report, indeed, asks for initiation of proceedings under Section 145(1) Cr.P.C., and, attachment under Section 146(1) Cr.P.C., pending decision of the criminal case. To the understanding of this Court on the basis of a title dispute, and, forgery involving pendency of a criminal case between parties, proceedings under Section 145 Cr.P.C. could not be recommended by the police to be initiated by the Magistrate, and, the property in dispute, attached. However, since proceedings have been initiated under Section 145 Cr.P.C., this Court does not wish to pull curtains down on those proceedings, which this Court thinks should reach their logical conclusion before the Magistrate. However, the Magistrate would bear in mind, what this Court has noticed about the contents of the police report, whereon the proceedings are founded.
19. Now, turning to the order impugned, there again appears to be a glaring infirmity, ex facie. The impugned order, though, purports to exercise powers under Section 146(1) Cr.P.C. on grounds of emergency, yet the direction is that attachment would continue until the rights and possession of parties are decided, by a decree or order, of a court of competent jurisdiction. It is, by now well settled, that the provisions of Section 145 and 146 Cr.P.C. form an integrated scheme, and, the two cannot be read in isolation, which is the precise folly that the Magistrate appears to have committed in issuing a direction to the above effect. The provisions of Sections 145 and 146(1) Cr.P.C., work together to authorize attachment in three kinds of situations, viz., the first, where there is not only apprehension of breach of peace over dispute relating to immoveable property, but the apprehension is such that the Magistrate considers it to be an emergency; the second, where the Magistrate, at the end of a full course of proceedings under Section 145 Cr.P.C., is unable to decide as to which of the two rival parties claiming actual possession on the date of the preliminary order or two months prior to, is in possession; and, the third, where the Magistrate decides that none of the parties were in possession on the date of preliminary order, or within the two months ante-dating it. It is only in the second and the third of the contingencies that the Magistrate, under the integrated scheme of Sections 145(1) and 146(1) Cr.P.C., is entitled to pass an order that attachment made shall continue until a decision about right, title and possession by a decree or order of a court of competent jurisdiction. However, in the first contingency, the Magistrate can direct attachment to continue, until decision by him of proceedings, initiated under the preliminary order under Section 145(1) Cr.P.C. on the basis of written statements of parties, and, the evidence led. Attachment made in the contingency of an emergency is not determinative of proceedings under Section 145(1) Cr.P.C., that must run their full course and reach logical conclusion, in the hands of the Magistrate. It is not that, an attachment made in view of an emergency, contemporaneously with an order under Section 146(1) Cr.P.C. can be the end of the matter, with the Magistrate leaving the attachment intact until decision about title or possession by a court of competent jurisdiction. That contingency can arise once the proceedings under Section 145(1)/ 146(1) Cr.P.C. have run their full course, and the Magistrate reaches conclusions enumerated hereinabove, as the second and the third possibility.
20. The law on this issue has been laid down by the Hon'ble Supreme Court in Mathuralal vs. Bhawarlal and others, (1979) 4 SCC 665. It has been held by their Lordships thus:
"4. Quite obviously, Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries. If Section 146 is torn out of its setting and read independently of Section 145, it is capable of being construed to mean that once an attachment is effected in any of the three situations mentioned therein, the dispute can only be resolved by a competent court and not by the Magistrate effecting the attachment. But Section 146 cannot be so separated from Section 145. It can only be read in the context of Section 145. Contextual construction must surely prevail over isolationist construction. Otherwise, it may mislead. That is one of the first principles of construction. Let us therefore look at Section 145 and consider Section 146 in that context. Section 145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of an order, known to lawyers practising in the criminal courts as a preliminary order, stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. A preliminary order is considered so basic to a proceeding under Section 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Sections 145 and 146. In fact, the first of the situations in which an attachment may be effected under Section 146 of the 1973 Code has to be "at any time after making the order under sub-section (1) of Section 145" while the other two situations have, necessarily, to be at the final stage of the proceeding initiated by the preliminary order. Now, the preliminary order is required to enjoin the parties not only to appear before the Magistrate on a specified date but also to put in their written statements. Sub-section (3) of Section t45 prescribes the mode of service of the preliminary order on the parties. Sub-section (4) casts a duty on the Magistrate to peruse the written statements of the parties, to receive the evidence adduced by them, to take further evidence if necessary and, if possible, to decide which of the parties was in possession on the date of the preliminary order. If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by sub-section (6). Provision for the two situations where the Magistrate is unable to decide which of the parties was in possession or where he is of the view that neither of them was in possession is made in Section 146 under which he may attach the subject of dispute until the determination of the rights of parties by a competent court. The scheme of Sections 145 and 146 is that the Magistrate, on being satisfied about the existence of a dispute likely to cause a breach of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements. Then he proceeds to peruse the statements, to receive and to take evidence and to decide which of the parties was in possession on the date of the preliminary order. On the other hand if he is unable to decide who was in such possession or if he is of the view that none of the parties was in such possession he may say so. If he decides that one of the parties was in possession, he declares the possession of such party. In the other two situations he attaches the property. Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders. There is no half way house, there is no question of stopping in the middle and leaving the parties to go to the civil court. Proceeding may however be stopped at any time if one or other of the parties satisfies the Magistrate that there has never been or there is no longer any dispute likely to cause a breach of the peace. If there is no dispute likely to cause a breach of the peace, the foundation for the jurisdiction of the Magistrate disappears. The Magistrate then cancels the preliminary order. This is provided by Section 145 sub-section (5). Except for the reason that there is no dispute likely to cause a breach of the peace and as provided by Section 145(5), a proceeding initiated by a preliminary order under Section 145(1) must run its full course. Now, in a case of emergency, a Magistrate may attach the property, at any time after making the preliminary order. This is the first of the situations provided in Section 146(1) in which an attachment may be effected. There is no express stipulation in Section 146 that the jurisdiction of the Magistrate ends with the attachment. Nor is it implied. Far from it. The obligation to proceed with the enquiry as prescribed by Section 145 sub-section (4) is against any such implication. Suppose a Magistrate draws up a preliminary order under Section 145(1) and immediately follows it up with an attachment under Section 146(1), the whole exercise of stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements becomes futile if he is to have no further jurisdiction in the matter. And yet he cannot make an order of attachment under Section 146(1) on the ground of emergency without first making a preliminary order in the manner prescribed by Section 145(1). There is no reason why we should adopt a construction which will lead to such inevitable contradictions. We mentioned a little earlier that the only provision for stopping the proceeding and cancelling the preliminary order is to be found in Section 145(5) and it can only be on the ground that there is no longer any dispute likely to cause a breach of the peace. An emergency is the basis of attachment under the first limb of Section 146(1) and if there is an emergency, none can say that there is no dispute likely to cause a breach of the peace.
6. In our view, it is wrong to hold that the Magistrate's jurisdiction ends as soon as an attachment is made on the ground of emergency. A large number of cases decided by several High Courts some taking one view and the others a different view were read to us. We do not consider it necessary to refer to them except to acknowledge that we derived considerable assistance from the judgment of Lahiri, J, in Kshetra Mohan Sarkar v. Paran Chandra Mandal [1978 Cri LJ 936 (Gauhati HC)], in arriving at our conclusion."
21. Thus, in the considered opinion of this Court, the impugned order passed by the Magistrate in terms that the attachment shall continue till the issue of title and possession of parties is decided by a decree, or an order by a court of competent jurisdiction, without the Magistrate himself taking proceedings, initiated on the basis of the preliminary order under Section 145(1) Cr.P.C. dated 19.11.2016 to their logical conclusion, is manifestly illegal and liable to be set aside. The proceedings under Section 145(1) Cr.P.C. are pending since the year 2016 and are almost two years old, going by the date of issue of the preliminary order. The impugned order was passed on the basis of an application, made by opposite party no.4, much later on 28.09.2017, alleging an emergency on account of imminent breach of peace. The police submitted their report on the said application, on 25.10.2017, and, the impugned order was passed on 11.06.2018. The aforesaid calendar of events ex facie does not disclose that an emergency, which is the sine qua non for exercise of power to attach under Section 146(1), exists at all. Apparently, between 28.09.2017 and 11.06.2018, it all remained eventless, excluding the contingency of an emergency contemplated by the statute.
22. In the considered opinion of this Court, therefore, it would serve the interest of justice, and, well accord with the law, if the Magistrate is directed to dispose of the pending proceedings, initiated in terms of the preliminary order under Section 145(1) Cr.P.C. dated 19.11.2016, within a period of six weeks next positively, from the date of receipt of certified copy of this order, in accordance with law, and, after hearing parties.
23. In the result, this revision succeeds and is allowed. The impugned order dated 11.06.2018 passed in Case no.4927/2016, Rakesh Goel vs. Sushil Gaba, passed by the Sub-Divisional Magistrate, Sadar, Saharanpur is hereby set aside. The Magistrate shall proceed to decide the pending proceedings under Section 145(1) Cr.P.C., as directed hereinabove.
Order Date :- 25.10.2018 Anoop