Allahabad High Court
Mrityunjay Singh vs State Of U.P. And 2 Others on 26 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 737
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 78 Case :- CRIMINAL REVISION No. - 1339 of 2017 Revisionist :- Mrityunjay Singh Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Subhash Chandra Yadav,Hemendra Pratap Singh Counsel for Opposite Party :- G.A.,Sunil Kumar Tiwari AND Case :- APPLICATION U/S 482 No. - 8070 of 2017 Applicant :- Mritunjay Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Subhash Chandra Yadav,Hemendra Pratap Singh Counsel for Opposite Party :- G.A.,Sunil Kumar Tiwari Hon'ble Om Prakash-VII,J.
Present Criminal Revision has been filed with the prayer to allow the revision and to set aside the order dated 28.02.2017 by the court of Additional City Magistrate-III, Agra in case no. 1 of 2016 (Computer Case No. 201601108415) (State Vs. Bhupendra Singh and another), under Sections 145, 146 Cr.P.C., Police Station Jagdishpura, district Agra and subsequent seizure memo dated 12.04.2017 of Station House Officer Police Station Jagdishpura, Agra. Further prayer has been made to direct the opposite party no. 2 to open the seal of the residential house of the revisionist and permit him to live therein peacefully.
Application U/S 482 Cr.P.C. has been filed with the prayer to quash the impugned order dated 28.02.2017 passed by the court of Additional City Magistrate-III, Agra in case no. 1 of 2016 (Computer Case No. 201601108415) State Vs. Bhupendra Singh and another, under Section 145 Cr.P.C., Police Station Jagdishpura, district Agra. Further prayer has been made to stay the effect and operation of the impugned order passed in the aforesaid case with the direction to the appropriate authority not to dispossess the applicant from his dwelling/disputed property and allow him to stay peacefully.
Although both the matters are listed under the heading "For orders" but on the request of learned counsel appearing for the parties matters are being decided finally at this stage itself.
Heard Sri Subhash Chandra Yadav, learned counsel appearing for the revisionist/applicant, Sri Sunil Kumar Tiwari, learned counsel appearing for the opposite party no. 3 and learned A.G.A.
Submission of learned counsel for the revisionist/applicant is that revisionist purchased the disputed property from its owner and was in continuous possession over it by constructing house. There was no dispute regarding possession over the disputed land. When prices of the plot excalated, opposite party no. 3 moved applications before several authorities on the basis of false facts. Initially enquiry was made on the direction of the Superintendent of Police concerned but entire allegations levelled against the revisionist/applicant was found false and specific observation was given in that report that opposite party no. 3 is trying to extract money from the revisionist with dishonest intention and due to that reason he is moving applications. It is also argued that no suit for cancellation of the said sale deed has been filed. Revisionist has obtained loan on the said sale deed. Until and unless the sale deed in question is cancelled, revisionist/applicant cannot be deprived from the fruits of the sale deed. It is also argued that specific report has also been given in the seizure memo prepared by the local police in compliance of the order passed under Section 146 (1) Cr.P.C. showing the rooms constructed over the disputed plot belonging to the revisionist. Referring to the documents annexed with the revision it is also argued that house in question was constructed by the revisionist and was in possession over it. This fact has not been considered by the concerned Magistrate while passing the order under Section 146 (1) Cr.P.C. There was no emergency (urgency) and possession over the disputed plot was also clear in favour of the revisionist/applicant. Thus, none of the ingredients to exercise the power given under Section 146 (1) Cr.P.C. were available in the present matter. It is further argued that earlier application under Section 482 Cr.P.C. challenging the order under challenge in the Criminal Revision had been filed but present Criminal Revision was filed challenging the attachment order as well as seizure order made by the police in compliance thereof. It is also argued that Application U/S 482 Cr.P.C. be dismissed as not pressed.
To substantiate the submissions, learned counsel appearing for the revisionist/applicant placed reliance on the following case laws :
1. Ashok Kumar Vs. State Uttarakhand reported in (2013) 3 SCC 366.
2. Badri Prakash Soni Vs. Prahalad Soni reported in 1994 (Supp 3) SCC 469.
3. Banney Vs. Ramesh Chandra reported in 1983 Cr.L.J. 18.
4. Ramani Mohan Mandal Vs. Santosh Kumar Mandal reported in 1991 (3) Crimes (HC) 549.
Learned counsel appearing for the opposite party no. 3 argued that mother of the opposite party no. 3 had died on 23.06.2005 itself. Thereafter preparing a forged power of attorney sale deed was executed on the basis of said power of attorney in favour of one Vijay Singh and another. Subsequently said property was sold to the revisionist/applicant and one another. Referring to the application moved before the Superintendent of Police concerned as well as S.D.M. concerned, it is also argued that house in question over the disputed plot was found constructed by the opposite party no. 3 and he was in continuous possession, therefore, submissions raised on behalf of the revisionist is false. It is also argued that in the civil suit pending between the parties one Amin Commissioner was appointed, who has given specific report showing the possession of the opposite party no. 3 over the disputed house. It is also argued that since sale deed in question is void, there is no need to file a suit for cancellation. It was also argued that civil suit was filed earlier to the execution of sale deed in favour of the revisionist. No interim protection has been granted in the civil suit in favour of either of the parties. Therefore, proceedings under Section 145 Cr.P.C. is well maintainable. Learned Magistrate while passing the impugned order has considered the entire evidence available on record at that time. There is no illegality, infirmity or perversity in the impugned order.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record.
In this matter, as is clear from the record, aforesaid application under Section 482 Cr.P.C. had been filed for the same cause of action which is under challenge in the Criminal Revision. No interim relief was granted in the aforesaid application. Thereafter present revision has been filed challenging the same order as was challenged in the aforesaid Application U/S 482 Cr.P.C. Keeping in view the prayer made by the learned counsel appearing for the applicant, aforesaid application moved under Section 482 Cr.P.C. is hereby dismissed as not pressed.
As far as submissions raised in Criminal Revision is concerned, there is no dispute that a civil suit is pending between the parties for the same subject matter for which proceedings under Section 145 Cr.P.C. is also pending. It is also clear from the record that no interim order has been granted in the civil suit. Opposite party no. 3 moved application before the competent authority to invoke the jurisdiction under Section 145 Cr.P.C. as there is dispute between the parties regarding the possession over the disputed plot. It is also evident from the record that on the enquiry made by the Superintendent of Police concerned, possession of the revisionist was found over the disputed plot but in the report submitted by the Amin Commissioner in the aforesaid suit, opposite party no. 3 was shown to be in possession of the disputed plot. Concerned Magistrate while passing the impugned order dated 28.02.2017 has observed that there is apprehension of breach of peace between the parties regarding the possession of the disputed land. It was also observed that although there is civil suit pending between the parties but no interim relief has been granted in favour of either of the parties. If the observations recorded by the concerned Magistrate in the impugned order are compared with the facts and evidence available on record in consonance with the law laid down in the case laws relied upon by the learned counsel appearing for the revisionist, no illegality, infirmity or perversity is found in the impugned order. It is clarified that proceedings under Section 145 Cr.P.C. could continue pending civil litigation. Only limitation is that if interim order has been granted in the civil suit regarding the possession in favour of either of the parties, the proceedings under Section 145 Cr.P.C. could not continue. It is also clarified that as soon as any interim order is granted in the civil suit pending between the parties regarding the possession, proceeding started under Section 145 & 146 Cr.P.C. will be subject to the order of civil court.
In the present matter no such interim order has been granted in favour of either of the parties. Both the parties are claiming their possession over the disputed property. Thus concerned Magistrate has rightly invoked the jurisdiction under Section 145 Cr.P.C. and has rightly attached the subject matter under Section 146 (1) Cr.PC. particularly keeping in view this fact that there was apprehension of breach of peace regarding the possession of the disputed property between the parties. All the essential ingredients required under law to initiate the proceedings under Section 146(1) Cr.P.C. are available in the present matter. Submissions raised on behalf of the revisionist are not liable to be accepted and revision having no substance is not liable to be admitted/allowed. Thus, revision is hereby dismissed.
However, court below is hereby directed to conclude the proceedings pending before it within a period of six months positively, from the date of receipt of certified copy of this order, fixing short dates. Both the parties are also hereby directed to co-operate with the court below in disposal of the matter.
A copy of this order be also placed on the record of Application U/S 482 No. 8070 of 2017 (Mritunjay Singh Vs. State of U. P. and another).
Order Date :- 26.2.2020 Sachdeva