Allahabad High Court
Sudarsha Avasthi vs State Of U.P. & Another on 8 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1122
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Case :- CRIMINAL REVISION No. - 424 of 2015 Revisionist :- Sudarsha Avasthi Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Avinash Singh,Ankit Pande,Pankaj Kumar Verma Counsel for Opposite Party :- Govt. Advocate,Pradeep Kumar Rai,R.D. Shahi,Satya Prakash,Shikhar Srivastava Hon'ble Dinesh Kumar Singh,J.
1. The present Criminal Revision has been filed by the revisionist against the judgment and order dated 04.07.2015 passed by the Additional District Judge/ E.C. Act, Lucknow in Criminal Revision No.16 of 2015 whereby learned Revisional Court has allowed the revision filed by opposite party No.2 and remanded the matter back to the Court below to decide the same after affording opportunity of hearing and giving liberty to produce evidence in accordance with Section 144(4) Cr.P.C. Learned Revisional Court has also directed the Court below to decide the matter within three months.
2. The proceedings under section 145 Cr.P.C. were initiated on the basis of police report dated 18th March 2000. Learned 1st City Magistrate, Lucknow vide order dated 7th January, 2015 held that the revisionist was in possession of the house in question on 13th March, 2000 and the respondents had never been in possession of that house. On 17th March, 2000, the respondents tried to take forcible possession of the house and due to that reason there appeared to be apprehension of breach of peace. It got established that the revisionist was in possession of the premises in question even before the date of preliminary order dated 18 March, 2000 passed under Sections 145(1) and 146(1) Cr.P.C. whereby property in question was attached. Therefore, order dated 18th March, 2000 was recalled and the respondents were directed not to interfere in any manner with the peaceful possession of the revisionist of the premises in question. It was further held that the revisionist was entitled to keep the house in his possession till he was dispossessed in accordance with law. The S.H.O., Police Station Hussainganj was directed to hand over the possession of the house in favour of the revisionist and if there was apprehension of breach of peace, then police would take all steps under the law to maintain the possession of the revisionist and maintain peace.
3. In pursuance of the order dated 7th March, 2015, the police handed over the possession of the property in question to the revisionist on 22nd January, 2015.
4. Kusum Rai, wife of respondent No.2 filed a Writ Petition No.758 of 2000 challenging the jurisdiction and validity of the order dated 18th, March, 2000 passed by learned Learned I-City Magistrate, Lucknow. It was alleged in the writ petition that on 17th March, 2000 at around 2:30 p.m. respondent No.2 was dispossessed from the house in question by Inspector, Police Station Husainganj. It was said that R.N.Sarkar, the earlier occupant, had vacated the premises on 25th February, 2000 and had handed over the possession of the house in question to respondent No.2 on the basis of a deed of assignment of a decree passed in Regular Suit No.245 of 1980 by the court of I-Additional Civil Judge. Sri R.N. Sarkar executed the deed of assignment in favour of the wife of respondent No.2. When this deed of assignment was presented for registration, it was impounded under Section 33 of Indian Stamp Act and Case No.407/ Stamp was instituted on 18 March, 2000 in respect of the said deed.
5. Initially, this Court had issued Commission, which inspected the premises and submitted a report on 25th March, 2000. This Court vide interim order dated 25th March, 2000 directed delivery of possession of the house to Ms. Kusum Rai. However, finally, vide judgment and order dated 31st January, 2001 this court dismissed the writ petition and held that it would not be justified to the Court to say that there was no sufficient material before the learned Magistrate for recording the satisfaction that there was apprehension of breach of peace for initiating the proceedings under Section 145 Cr.P.C. This Court also rejected the contention of Ms. Kusum Rai, the petitioner in the writ petition that since the order of attachment was not passed simultaneously with the preliminary order under Section 145(1) Cr.P.C., order of attachment was bad in law. This Court held that there was necessity of passing preliminary order under sub-section 1 of Section 145 Cr.P.C. before passing an order of attachment under sub-section 1 of Section 146 Cr.P.C. on the ground of emergency. Simply because the learned Magistrate did not pass a composite order, it could not be said that there was no grave emergency so as to entitle the learned Magistrate to exercise his power under sub-section 1 of Section 146 Cr.P.C. This Court also rejected the contention of the petitioner in the writ petition that there was no material to invoke the powers of attachment by the learned Magistrate treating it to be a case of emergency. The writ petition was dismissed and it was held that order dated 18th March, 2000 passed by learned Magistrate was not bad in law. This court ordered Status quo ante as it existed prior to 25th March, 2000 when the interim order was passed by this court. It was directed that the property in question would remain under attachment as ordered by learned Magistrate on 18th May, 2000 subject to any order that might be passed in accordance with law.
6. Judgment and order dated 31st January, 2001 was challenged in S.L.P. (Crl) No.679 of 2001 by Ms.Kusum Rai, her husband respondent No.2 herein. The Supreme Court vide order dated 27th March, 2001 dismissed the SLP as withdrawn. The Supreme Court further directed that the direction issued by this Court for order of status quo ante (as it existed after attachment was in fact effected in compliance of the order dated 18th March, 2000 and, before the possession was given to Ms. Kusum Rai and her husband on the basis of the interim order dated 25th March, 2000 passed by learned Single Judge) should be restored within 10 days and the property would remain under attachment till some other orders were passed by learned Magistrate or by any other Court or authority. These directions should be given effect to immediately. It was said that all the authorities concerned would implement the said direction forthwith.
7. In compliance of the directions issued by the Supreme Court, the property was again attached on 29 March, 2001 and went in the police custody. Proceedings again began before learned Magistrate. On 4th September, 2001 learned Magistrate afforded last opportunity to the contesting parties to file their respective written statements by 12 September, 2001. The revisionists filed his statement and respondent No.2 did not file his written statement. On 23rd November, 2001 when the case was listed for further evidence of the revisionist, respondent No.2 filed his written statement as a reply to the written statement of the revisionist with a prayer for taking the same on record.
8. Sri Girja Kant Shukla, one of the owners of property in question moved an application under section 145(5) Cr.P.C. on 23rd, September 2003. He said that in December 1999, R.N. Sarkar agreed to vacate the house which was in his unauthorised possession and he delivered the keys of the vacant house to him. It is also important to mention here that this Court on 21st May, 1986 passed an interim order in FAFO No.75 of 1986 whereby the execution of the ex parte decree, which was assigned by the deed of assignment, had been stayed by this court. After participating in the proceedings before the learned Magistrate for sometime, respondent No.2 stopped attending the proceedings. On 13th January, 2005, learned Magistrate issued summons to respondent no.2 for attending the court. On 19th January, 2005, summons were duly served on him. Respondent No.2 thereafter, attended the proceedings before the Magistrate on a few dates and lastly on 3rd October, 2006. It is stated that respondent No.2 engaged 15 advocates before the Magistrate, but for more than 8 years none had appeared on behalf of respondent No.2 to press his application for taking written statement on record. More than 150 dates were fixed by the learned Magistrate and the revisionist or his counsel attended almost all the dates.
9. Despite all this the learned Magistrate vide order dated 28 May, 2014 allowed the application of respondent No.2, and his written statement filed on 23rd November, 2000 was finally taken on record with cost of Rs.1000/-. Learned Magistrate directed for recording of the evidence on 12 June, 2014.
10. Respondent No.2 neither paid cost as directed by learned Magistrate vide order dated 28th May, 2014 nor did he appear before the learned Magistrate on the date fixed or on several subsequent dates nor did he come forward to cross examine the revisionist and three witnesses produced by the revisionist. Ultimately, vide order dated 12th August, 2014 evidence on behalf of the revisionist was closed and 27th August, 2014 was fixed for evidence of respondent No.2.
11. On 27th August, 2014, respondent No.2 did not appear nor produced any oral or document evidence. The case was fixed for argument on 4th September, 2014 when the arguments were submitted on behalf of the revisionist. Thereafter, learned Magistrate passed order dated 7th January, 2015 which is speaking and reasoned order detailing the manner in which the case had proceeded before him. It is said that in compliance of the said order dated 7th January, 2014 the possession of the house in question was delivered to the revisionist by Police Station Husainganj on 22nd January, 2015.
12. Respondent No.2 thereafter, filed Criminal Revision No.00016 of 2015 against order dated 7th January, 2015 passed by learned Magistrate under Section 145/146 Cr.P.C. An ex parte interim order was passed by District Judge, Lucknow on 6th February, 2015 in the aforesaid criminal revision for maintaining status quo. The revisionist filed an application on 27th February, 2015 before the District Judge, Lucknow for vacating the interim order dated 6th February, 2015 so that the revisionist could continue, repair and restore the structure of the house but the same was not allowed. The revisionist thereafter, filed Writ Petition No.1137(MS) of 2015 before this Court which was disposed of with a direction to dispose of revision petition pending before District Judge expeditiously. Learned A.D.J./Special Judge, E.C. Act has passed the impugned order and set aside the order dated 7th January, 2015 passed by the learned Magistrate and remitted the matter back to the Court of learned Magistrate to pass a fresh order after giving reasonable opportunity to respondent No.2 to lead the evidence and apply the provisions of Section 145(4) Cr.P.C. Respondent No.2 was directed to complete his evidence within a period of 3 months and deposit the cost in the sum of Rs.1000/- which was directed by learned Magistrate while taking written statement on record.
13. Heard Mr.Sudarsha Avasthi, the revisionist in person and Mr. P.K. Rai for respondent No.2 and learned AGA for the State.
14. The revisionist in person has submitted that the revisional jurisdiction can be invoked where the decision under challenge is grossly erroneous and there is no compliance of the provisions of law or the finding recorded is based on no evidence or the material evidence is ignored or the judicial discretion has been exercised arbitrarily or perversely. It is further submitted that revisional power is to be exercised subject to provisions of Section 465 Cr.P.C. Section 465 Cr.P.C. prohibits interference on the ground of irregularity unless there is in fact failure of justice or judgment and order in question has been passed in arbitrary manner. Section 145(4) Cr.P.C. casts a duty on the Magistrate to receive all such evidence as may be produced by the parties. If one party or parties does/do not come forth to produce the evidence in support of the claim or respective claims, the Magistrate cannot compel any party to lead his evidence. Learned Additional District Judge himself held that despite adequate opportunity given to respondent No.2 herein, he did neither produce any evidence nor controverted any evidence led by the petitioner herein. Despite holding so, learned Additional District Judge in the impugned order has held that there was no evidence of respondent No.2 and by passing order dated 7th January, 2015 only on the basis of evidence adduced by the petitioner, the learned Magistrate has committed gross legal impropriety.
15. He has further submitted that finding of learned Additional District Judge of deemed possession of wife of respondent No.2 over the premises in question had sealed the question of right of possession to be decided by the learned Magistrate inasmuch as when the revisional court itself has recorded that the wife of respondent No.2 should be deemed to have been in possession nothing is left with the Magistrate to decide about the question of possession on remand. It has further been submitted that the learned Additional District Judge has not taken into consideration the finding of the judgment of this court in Writ Petition No.758(MS) of 2000 whereby order dated 18th March, 2000 passed under Sections 145 and 146 Cr.P.C. was upheld. It was also held by this Court that it cannot be said that a suit for declaration of title or a suit for possession was pending before the Civil Court in respect of the same property between the same parties. It is, therefore, submitted that impugned judgment and order passed by learned Additional District Judge is wholly erroneous beyond the powers of revision conferred under Section 397/401 Cr.P.C. and, therefore, it is required to be quashed.
16. On the other hand, learned counsel appearing for respondent No.2 has submitted that learned Additional City Magistrate-I, Lucknow vide order dated 7th January, 2015 had decided the proceedings under Sections 145 and 146 Cr.P.C. vide order dated 7th January, 2015 without affording opportunity of hearing and without liberty to respondent No.2 to produce evidence. Learned Revisional Court has examined entire matter and after going through the lower court record, has remitted the matter to the court of Additional City Magistrate-I, Lucknow which should not to be interfered with.
17. On facts, it has been submitted that owner of property in question Smt. Kalka Devi had executed an agreement to sale dated 26th March 1974 in favour of Sri R.N. Sarkar who was living in the said house as tenant since 1968. When the final sale-deed was not executed by Smt. Kalka Devi, R.N.Sarkar filed a Suit No.249 of 1980 for Specific Performance of the agreement to sell in the court of Civil Judge, Lucknow and the said suit was decreed in favour of R.N. Sarkar on 6th December, 1985. Shri R.N. Sarkar transferred the possession of the house in favour of wife of respondent No.2 through deed of assignment of decree for specific performance on 17th March, 2000 and in view of the aforesaid, she became the occupant of the said house. It has been submitted that Additional City Magistrate-I, Lucknow while passing the order dated 7th January, 2015 did not take into consideration the documents and evidence filed by respondent No.2 which was already on record. He has further submitted that the claim of the revisionist is on the basis of Power of Attorney executed by Krishna Devi and Rakesh Kant Shukla but the same has never been brought on record in any of the proceedings. The revisionist has no legal authority to claim possession of the property in question. One of the executors of the alleged power of attorney, namely Smt. Krishna Devi had died and, therefore, Power of Attorney has become redundant and on that basis he cannot claim any right after the death of Krishna Devi. He has further submitted that the revisionist has not filed any document empowering him to initiate and continue with the present proceedings nor any averment has been made in the entire petition regarding his right to maintain the proceedings.
18. Section 145(4) Cr.P.C. provides that before passing the order under Sections 145 and 146 Cr.P.C., learned Magistrate shall provide opportunity of hearing to both parties and also provide opportunity to submit their evidence and, thereafter, will pass the order. Learned revisional Court after examining the entire matter and going through the order of the learned Magistrate has found that before passing the order dated 7th January, 2015 learned Magistrate has not provided opportunity of hearing to respondent No.2. In view of the aforesaid finding, in exercise of revisional power, the learned revisional Court had set aside the order passed by learned Additional City Magistrate-I, Lucknow and remanded the matter before him for passing a fresh order in accordance with law after giving opportunity to lead evidence. It is, therefore, submitted that there is no illegality or impropriety in the order passed by learned Additional District Judge to be interfered with by this Court.
19. I have considered the rival submissions and gone through the record carefully.
20. Proceedings before the learned City Magistrate-I got initiated on the basis of the police report dated 18th March, 2000. This court dismissed Writ Petition No.758 of 2000 filed by Kusum Rai, wife of respondent No.2 and respondent No.2 against the order dated 18th March, 2000 passed by learned City Magistrate.
21. The Supreme Court dismissed the SLP (Criminal No.679 of 2000) vide order dated 27th March, 2001 with the direction that the order of status quo ante as it existed after attachment was in fact effected in compliance of order dated 18th March, 2000 and, before possession was given to Ms. Kusum Rai and her husband on the basis of an interim order dated 26th March, 2000 passed by learned Single Judge of this Court should be restored within 10 days and further directed that the property would remain under attachment till some other orders were passed by learnd Magistrate or by any other Court or authority. It was further said that the aforesaid direction should be given effect to immediately.
22. Thus, the proceedings after the order of the Supreme Court dated 27th March, 2001 restarted before the learned Magistrate. The property in question was again attached on 29th March, 2001 and given in police custody. As long as back 4th September, 2001, learned Magistrate afforded last opportunity to the contesting parties to file their respective statements by 12th September, 2001. Respondent No.2 did not file his written statement.
23. On 23rd November, 2001 when the case was listed for evidence of revisionist, respondent No.2 filed his written statement with an application to take the same on record. Respondent No.2 did not appear before learned Magistrate and on 13th January, 2005 learned Magistrate summoned respondent no.2 for attending the court. On 19th January, 2005 summons were duly served on him. Respondent No.2 thereafter, attended the proceedings on some dates before the learned Magistrate and lastly on 3rd October, 2006. Learned Magistrate finally passed the order on 7th January, 2015. Learned Magistrate fixed almost 150 dates but respondent No.2 continuously remained absent despite having engaged almost 15 advocates. Despite absence of respondent No.2 in the proceedings, on 28th May, 2014, learned Magistrate allowed the application of respondent No.2 and his written statement filed on 23rd November, 2001 was taken on record with the cost of Rs.1,000/-. However, respondent No.2 neither appeared nor paid cost.
24. The question which arises for consideration is that whether in view of the aforesaid uncontroverted facts and conduct of respondent No.2 before the learned Magistrate, revisional court was justified in interfering with the order dated 7th January, 2015 passed by learned Magistrate under Section 145/146 Cr.P.C.
25. When an executive magistrate exercises powers under Section 145/146 Cr.P.C., he exercises the preventive jurisdiction. When there is a dispute regarding possession or right of use, of land or water or its boundaries, which are bound to be very clear and which is likely to cause breach of peace, the learned Magistrate assumes the preventive jurisdiction. The dispute may not affect the public or community at large; but between the two claimants which is fraught with consequence dangerous in themselves. The jurisdiction of the Magistrate is not to go into the question of title, but to meet the urgency of the situation by maintaining the party in possession. The Magistrate can, therefore, call upon the parties to put in their written statements in support of their claims to actual possession. The Magistrate is required to peruse the statement, hear the parties, receive all such evidence as may be produced by them in order to ascertain who is in possession as on the date of the order. When the possession has wrongly been taken within 2 months of the police report or other information, or after that date and before date of his order, the person so dispossessed is to be taken as the person in possession. If the Magistrate is satisfied that no dispute exists, he can drop the proceedings. If he declares that one party is in possession, that party can be evicted only by due process of law and not otherwise.
26. To initiate proceedings under Section 145 Cr.P.C. three requirements have to be fulfilled:-
(i) there must be real breach of peace inviting such proceedings;
(ii) there must be material on record to prove the actual breach of peace; and
(iii) the Executive magistrate shall form a subjective satisfaction to initiate such proceedings.
27. The object of the proceedings under Section 145/146 Cr.P.C. is to maintain law and order and to prevent breach of peace by maintaining one or other parties in possession, which the court finds they had immediately before the dispute, until actual right of one of the parties has been determined by a competent civil court.
28. Existence of a dispute likely to cause a breach of peace is a condition lying at the root of the powers conferred on the Magistrate. The Magistrate does not determine the right or title of the parties. Enquiry under Section 145 Cr.P.C. is confined to the question of actual possession only. The Magistrate cannot enquire into the rights of the party. In proceedings under Section 145 Cr.P.C. the Magistrate has to decide the question of possession without reference to the merits of the of claims of any of the parties to right to possess the subject matter of the dispute.
29. After passing the preliminary order the Magistrate is required to decide the matter of possession one way or the other under Section 145 Cr.P.C. unless from the evidence before it, the Magistrate comes to clear finding on evidence that apprehension of breach of peace ceases to exist.
30. In order to enable the parties to adduce evidence, reasonable opportunity has to be given to produce document(s) and witness(es) and the Magistrate will also have duty to summons such witness(es) as may be required by either parties. The procedure of sub-Section 4 of Section 145 Cr.P.C. must be followed for it is mandatory. Oral evidence adduced have to be recorded and the documents should be properly proved according to rules of evidence to be considered. After the production of oral and documentary evidence, the Magistrate will have to decide the question of possession on the basis evidence placed before him.
31. In the present case, the question is whether the learned Magistrate had afforded the reasonable opportunity to respondent No.2 before passing order dated 07.01.2015. From the facts narrated in the preceding paragraphs, it is evident that learned Magistrate gave ample opportunity to respondent No.2 to produce evidence but he absented himself since 2006 till the date of the order passed on 07th January, 2015 by the learned Magistrate. Once the Magistrate gives opportunity to produce evidence to the party, choice is left to the parties to adduce evidence or not to adduce evidence. The Magistrate cannot compel a party to adduce evidence to support his/her claim.
32. The finding of the learned Revisional Court that the Magistrate failed to afford reasonable opportunity to respondent No.2 to adduce evidence is wholly contrary to the record of the case. The Magistrate cannot force a party to adduce evidence. Once the party has decided to remain absent from the proceedings, learned Magistrate did not have any other choice but to proceed with the matter and consider the evidence adduced by the other party. As noted earlier, the power of the Magistrate is to decide the question of possession and not the right of possession. It had almost been settled by this Court in its judgment dated 31.01.2001 passed in Writ Petition No.758 of 2000 that the petitioner herein was in possession of the property in question on 18th March, 2000. Learned Magistrate after affording adequate opportunity has passed the order dated 7th January, 2015 and it should not have been interfered with by the revisional court.
33. It is well settled that revisional jurisdiction can be invoked of the decision under challenged is grossly erroneous, there is no compliance with the provisions of law, finding recorded is based on no evidence, material evidence is ignored or judicial power has been exercised arbitrarily or perversely.
34. The revisional Court is not required to go into question of fact except in case of special and exceptional circumstances. The revisional jurisdiction under Section 401 Cr.P.C. is conferred on the superior courts as supervisory jurisdiction in order to prevent miscarriage of justice arisen from misconception of law, irregularity or perversity in the impugned judgment or order(s).
35. The Supreme Court in the case of Amit Kapoor versus Ramesh Chander and another : (2012) 9 SCC 460 while dealing with the scope of revisional jurisdiction has held as under:-
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC.
........
20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression "prevent abuse of process of any court or otherwise to secure the ends of justice", the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused."
36. Thus, while exercising revisional jurisdiction, the revisional Court is required to rectify the miscarriage of justice, if any. The main consideration is that whether substantial justice is done or not. The power under Section 397/401 Cr.P.C. has to be exercised only in exceptional cases where there has been miscarriage of justice which has been result of:-
(i) a defect in the procedure
(ii) manifest error on point of law;
(iii) excess jurisdiction; and
(iv) abuse of power.
37. Order dated 07th January, 2015 if tested on the touch stone of law expounded by the Supreme Court, it can hardly be said that the revisional Court was justified in exercising its power. Respondent No.2 when himself had absented from the proceedings for almost 9 years, it cannot be said that learned City Magistrate did not give reasonable opportunity to respondent No.2 to adduce evidence as contemplated under sub-Section 4 of Section 145 Cr.P.C.
38. Thus, in view of the aforesaid discussion, impugned judgment passed by revisional Court dated 04.07.2015 is set aside. The revision petition is allowed.
Order Date:-08.07.2019 prateek