Allahabad High Court
Rajesh Srivastava & Another vs State Of U.P. & Others on 18 July, 2019
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 11 Case :- U/S 482/378/407 No. - 3512 of 2018 Applicant :- Rajesh Srivastava & Another Opposite Party :- State Of U.P. & Others Counsel for Applicant :- Sushil Kumar Singh,Navneet Kumar Srivastava,Trishita Singh Counsel for Opposite Party :- Govt. Advocate,Ashish Kr.Gupta Hon'ble Rajeev Singh,J.
Heard learned counsel for the applicants, learned A.G.A. for the State and Shri Ashish Kumar Gupta for respondent no. 4.
This application has been filed for quashing of the proceedings of Case No. 24 of 2018 (Smt. Rajesh Kumari Vs. Rajesh Kumar Srivastava & Anr.) pending before City Magistrate, District Faizabad.
Facts, in brief, are that the applicants are the tenant of House No. 5/1/6 (old number 5/1/7), Sholapuri Sahabganj, Pargana Haveli Avadh, Tehsil and District Faizabad since 1966. In the year 2011, respondent no. 3 (ex-house owner) tried to dispossess the applicants, against which mother of the applicants filed a suit being Civil Suit No. 353 of 2011 (Smt. Krishna Srivastava & Anr. Vs. Smt. Malti Verma) for permanent injunction, which is still pending for disposal before the Civil Judge (Junior Division), Sadar, Faizabad. During the pendency of the aforesaid suit, respondent no. 3 executed a sale deed on 1st June, 2013 in favour of respondent no. 4. Respondent no. 4 moved an application before the City Magistrate, Faizabad under Section 145 Cr.P.C. on 30th December, 2017. On the said application, the Magistrate directed to Station House Officer, P.S. Kotwali Nagar to inquire the matter, in pursuance to which a report (appended as Annexure 6 to the application) has been submitted before the Magistrate. Thereafter, vide order dated 28.02.2018, City Magistrate issued notice to the parties to submit the proof of possession and the next date fixed was 16th March, 2018. On the same day, i.e., on 28.02.2018, impugned attachment order under Section 146(1) Cr.P.C. was also passed.
Contention of the learned counsel for the applicants is that ex-house owner, during the pendency of the Civil Suit No. 353 of 2011 filed by the mother of the applicants, namely, Smt. Krishna Srivastava (now dead), sold the property in question to respondent no. 4. Thereafter, respondent no. 4 moved an application under Section 145 Cr.P.C., on which, City Magistrate, Faizabad called for a report from the S.H.O., P.S. Kotwali Nagar, Faizabad. Learned counsel for the applicants contended that in the report filed by Sub Inspector, P.S. Kotwali Nagar, Faizabad, it is categorically mentioned that the family of the applicants are living in the premises in question as a tenant. It is also mentioned in the said report that the proceedings under Section 107/116 Cr.P.C. have been initiated between the parties. It is further contended that the City Magistrate, Faizabad, thereafter issued a notice on 28th February, 2018 directing the parties to submit the proof of possession before him and the matter was fixed for 16th March, 2018. It is further contended that on 16.03.2018, it came to the knowledge of the applicants that the impugned seizure order had also been passed on the same date, i.e., on 28th February, 2018 without hearing the parties, which is in utter violation of the principles of natural justice as well as the provisions of Section 145 Cr.P.C. It has also been submitted that the City Magistrate forcibly get locked the house of the applicants on 28th March, 2018 under the provisions of Section 146(1) Cr.P.C. without deciding the proceedings after giving proper opportunity of hearing to the parties and without considering the police report, in which the family of the applicants was found in possession being a tenant. It is also contned that the applicants are regulary paying the rent. Learned counsel for the applicants has further submitted that the entire exercise was done by the City Magistrate in abuse of the provisions of Section 145 and 146(1) Cr.P.C., only at the behest of the respondent no. 4, who purchased the house in question and used it as a device to get the illegal possession of the house. It is lastly contended that in any case, there was no occasion for the City MagistrNagarate to have passed the impugned attachment order, when a civil suit is already pending.
Hence, this application.
Learned A.G.A., on the other hand, submitted that there is no illegality in the order as the legal possession of the applicants was not found in the property in question and there was a possibility of breach of peace and in such circumstances, there is no illegality in the impugned order.
Learned counsel for respondent no. 4 submitted that no stay order was granted in Suit No. 353 of 2011 filed by the mother of the applicants. He also submitted that the proceedings under Section 107/116 Cr.P.C. were also initiated between the parties on the apprehension of the breach of peace, therefore, there is no illegality in the order.
When the matter was taken up as fresh on 29.05.2018, notice was issued by this Court to respondent nos. 3 and 4 with the detail observation. The order dated 29th May, 2018 reads as under:-
"Heard learned counsel for the petitioners and learned A.G.A and perused the record.
The petitioners have challenged the attachment order dated 28.02.2018 whereby the City Magistrate, Faizabad has passed the impugned order attaching the property in dispute till final proposal of dispute by the competent civil court.
It has been contended by the learned counsel that the petitioners are in settled possession of the property in dispute as tenants. The opposite party no.3 was the previous owner and land lady against whom the petitioners have filed a civil suit which is still pending. During the pendency of the suit, the opposite party no.3 sold the property in dispute to the opposite party no.4 and the opposite party no.4 is adapting various means to evict the petitioners from their possession. It has also been submitted by the learned counsel that the preliminary order under Section 145 (1) Cr.P.C was passed by the learned City Magistrate on 28.02.2018 requiring the parties to appear and file their respective claims but without waiting for the parties to file their claims, the learned City Magistrate on the same very date i.e 28.02.2018 passed the impugned attachment order. It has also been submitted that when the civil suit is pending before the court below, there was no occasion for the Magistrate to have passed the attachment order specially in those circumstances when there is no apprehension of breach of peace.
Issue notice to opposite parties no.3 and 4 returnable by 07.06.2018 for which urgent step shall be taken by the petitioners.
List on 07.06.2018."
On 7th June, 2018, an interim order was passed staying the impugned order dated 28th February, 2018. The order reads as under:
"Vakalatnama filed by Sri Ashish Kumar Gupta, Advocate, on behalf of opposite party no.4 is taken on record. His name be shown in the cause list from the side of the respondents when the case is next listed.
Notice for opposite party nos. 1 and 2 has been accepted by the office of learned Government Advocate.
Issue notice to opposite party no.3 returnable at an early date.
Steps be taken within a week.
Opposite parties are directed to file their counter affidavits within four weeks. Rejoinder affidavits, if any, may be filed within two weeks thereafter. List after expiry of the aforesaid period.
Learned counsel for the petitioners submits that the police report called for by learned City Magistrate, Faizabad, clearly shows that the petitioners are in possession of the house in dispute. However, despite this report, learned City Magistrate, Faizabad, has passed the order attaching the house in question. At this stage when the police report is otherwise, learned City Magistrate, Faizabad, should not have passed the impugned order dated 28.02.2018.
Considering the aforesaid submissions of Sri Sushil Kumar Singh, learned counsel for the petitioners, there shall be interim stay of the impugned order dated 28.02.2018 passed by City Magistrate, Faizabad, under the provisions of Section 146(1) Cr.P.C. in Case No.24 of 2018 till the next date of listing."
Learned counsel for the applicants submitted that vide impugned order dated 28.02.2018 passed under Section 146(1) Cr.P.C., the City Magistrate tried to illegally fix the title of the property without looking into the facts revealed in the police report regarding the possession, wherein it is categorically mentioned that the family of the applicants was there in the possession of the house in question being a tenant and, thus, there is a clear abuse of the process of law and the impugned order has been passed only at the behest of respondent no. 4, who purchased the property in the year 2013.
Considered the arguments advanced by the learned counsel for the parties and perused the record.
It is well settled that at the time of adjudication under the provisions of Sections 145 and 146 Cr.P.C., the possession over the property has to be seen. Vide order dated 30.12.2017, the Magistrate called for a report from the police and in the report submitted by the Station House Officer, P.S. Kotwali Nagar, it is the applicants, who were found in possession. The impugned order dated 28.02.2018 reveals that the property has been attached only on the basis of the finding that there existed apprehension of breach of peace. There is marked difference in between apprehension of breach of peace and existence of an emergency situation. The existence of emergency is sine qua non, or a condition prudent, the absence of which shall denude the Magistrate from the jurisdiction to exercise power provided u/s 146 of Criminal Procedure Code. This view taken by me finds support from the judgment and order dated 25.03.2014 passed by this Court at Allahabad in Writ Petition No. 3390 of 2014, Budhsen @ Munendra Vs. State of U.P., (2014) 104 ALR 455. This Court, while allowing the said petition, has observed as under: (Relevant portion) "I have cogitated upon the rival submissions made at the bar and find force in the submission made by the petitioner's counsel. The perusal of record shows that the impugned order does not contain any such finding regarding the existence of emergency situation. The impugned order is conspicuous by absence of any such finding or satisfaction recorded by the Magistrate. It is also apparent from the record that when opposite party moved the second application seeking the attachment of property there was no further police report called up by the Magistrate. The impugned order also reveals that the property has been attached only on the basis of the finding that there existed apprehension of breach of peace. There is marked difference in between apprehension of breach of peace and existence of an emergency situation. Whenever there is an apprehension of breach of peace the Magistrate acquires jurisdiction to proceed under 145 Cr.P.C. But if the situation deteriorates to become grave and assumes any such complexion which may be described to be an emergency situation then the Magistrate acquires the jurisdiction to attach the property under 146 Cr.P.C. The absence of emergency situation will cut at the root of the matter and it will be difficult to justify the order of attachment in the absence of any such finding. It is true that some times the report on the basis of which the attachment has been made may contain some such facts which by themselves may inherently indicate the existence of emergency situation and even in the absence of specific finding to that effect given by Magistrate the higher court may find it apparent on the face of record that there did exist such emergency situation. But this will all depend upon the facts and circumstances of each case. So far as the matter at hand is concerned, I do not see any such fact contained either in the application moved by the respondent or in the police report. That seems to be the reason why at an earlier stage the application of the opposite party or the police report with regard to the same could satisfy the Magistrate about the apprehension of breach of peace alone and who therefore deemed it fit to proceed under 145(1) Cr.P.C. only. This is really in-comprehensible as to how the same Magistrate six months later on made the same police report the basis to attach the property even though no new development was reported to have taken place.
The existence of emergency is sine-qua-non, or a condition prudent, the absence of which shall denude the Magistrate from the jurisdiction to exercise power provided u/s 146 of Criminal Procedure Code. An order without jurisdiction is no order at all. It is non-est in the eyes of law.
In the aforesaid circumstances, I am of the view that the order of attachment in the absence of those essential ingredients of law which alone could confer the jurisdiction to attach the property under 146 Cr.P.C has been illegally passed.
The impugned order of attachment dated 19.2.2013 is, therefore, quashed and the writ petition is allowed to that extent."
From a perusal of record, it is evident that the family of the applicants was found in possession over the house in question and was paying the rent regularly and no such emergent situation arose, after issuance of notice, which would amount to passing of the order under Section 146(1) Cr.P.C. It is further evident that the rent receipts were also not considered by the court below while passing the impugned order. It is also not disputed that the impugned proceedings were initiated after the purchase of the house in question by respondent no. 4, as a device to evict the applicants from the premises, which is not permissible. The impugned attachment order dated 28.02.2018 has wrongly been passed by the City Magistrate, Faizabad.
In view of above facts and discussions, order dated 28.02.2018 as well as entire proceedings of Case No. 24 of 2018 (Smt. Rajesh Kumari Vs. Rajesh Kumar Srivastava & Anr.) are hereby quashed.
The application is, accordingly, allowed.
July 18, 2019 VKS