Allahabad High Court
Kapil Dev vs State Of U.P. And 2 Others on 11 November, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- APPLICATION U/S 482 No. - 15944 of 2020 Applicant :- Kapil Dev Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Sanjay Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
Heard Sri Sanjay Kumar Pandey, learned counsel for the applicant and Sri G.P. Tripathi, learned A.G.A. appearing on behalf of the State.
This application under Section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") has been filed to set aside the order dated 28.11.2019, passed by the Sessions Judge, Sant Kabir Nagar in Criminal Revision No. 39 of 2019, Gautam and others vs. State of U.P. and others.
In proceedings under Section 145 Cr.P.C. between the applicant and opposite party nos. 2 and 3, who are brothers, the Sub-Divisional Magistrate, Khalilabad has passed an order under Section 146 (1) Cr.P.C. on 28.06.2019, directing the parties to maintain status quo regarding the property in dispute, until 22.07.2019, by which time, the Station House Officer, Police Station - Bakhira, has been ordered to nominate a non-partisan third party, who may be appointed as receiver of the property in dispute, presumably until conclusion of proceedings under Section 145 Cr.P.C. The said order has been challenged before the learned Sessions Judge in revision inter alia on the ground that the parties are co-sharers and brothers. A suit for partition, being Suit No. 201817650107091, under Sections 116 and 117 of U.P. Revenue Court, is pending before the Sub-Divisional Magistrate, Khalilabad, and a civil suit, being Original Suit No. 20 of 2019, for some part of the property (abadi), is pending before the learned Civil Judge, Senior Division, Sant Kabir Nagar and that during pendency of these suits, it is not proper exercise of jurisdiction by the Magistrate to pass an order of interim injunction and direct appointment of a receiver. It appears that proceedings in this case under Section 145 Cr.P.C. relate to agricultural holdings between brothers. Pending proceedings that commenced on 04.12.2018, an order of attachment to be followed by appointment of a receiver, has been passed on 28.06.2019. The sequence of events show that there is ex-facie no such emergency involved, where powers under Section 146 (1) Cr.P.C. may be invoked. The learned Sessions Judge has rightly reasoned that no case of an injunction and appointment of a receiver is made out. The learned Judge has, therefore, rightly set aside the Magistrate's order to the extent that appointment of a receiver has been directed. The learned Sessions Judge has, at the same time, permitted proceedings under Section 145 Cr.P.C. to go on and brought to their logical conclusion. In the circumstances, learned counsel for the applicant submits that the learned Judge has passed the order impugned without application of mind and without recording any finding of his own as to why an order under Section 146 (1) Cr.P.C. is ill-merited. This Court does not think so. The learned Judge's order is well-reasoned and proceeds on settled principles. It is about pendency of regular suits before the civil and revenue court and the overall sequence of events, which placed in time, do not show it to be a case involving an emergency within the meaning of Section 146 (1) Cr.P.C.
The prayer to quash the impugned order dated 28.11.2019 passed by the learned Sessions Judge, in Criminal Revision No. 39 of 2019 is, therefore, refused.
It is, however, ordered that the Sub-Divisional Magistrate, Sant Kabir Nagar, before whom Case No. T201817650208673, Kapil Dev v. Gautam and others, under Section 145 Cr.P.C. is pending, shall proceed to expedite those proceedings and conclude the same within a period of three months, in accordance with law, after hearing all the parties concerned.
This application is disposed of in terms of the aforesaid order.
Order Date :- 11.11.2020 I. Batabyal