Allahabad High Court
Virendra And 2 Others vs State Of U.P. And 2 Others on 8 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On: 14.09.2022 Delivered On: 08.12.2022 Court No. - 90 Case :- CRIMINAL REVISION No. - 1119 of 2013 Revisionist :- Virendra And 2 Others Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Krishna Nand Yadav,Parmeshwar Yadav Counsel for Opposite Party :- Govt. Advocate,Avadhesh Pratap Singh,Awdhesh Pratap Singh,Niyaz Ahmad Khan Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard Sri Krishna Nand Yadav, learned A.G.A. for the State and perused the record.
2. The present revision under Section 397/401 of Cr.P.C. has been preferred by the accused persons against the judgment and order dated 30.03.2013 passed by the Sub Divisional Magistrate Sadar, District Maharajganj in Complaint Case No. 119/123 (State vs. Ram Bhawan & others) under Section 145 of Cr.P.C., Police Station- Chowk, District Maharajganj. The Sub Divisional Magistrate, Sadar, Maharajganj vide impugned order has attached ½ part of the land in dispute Araji No. 550, Ara 0.737 hectare, Araji No. 573, Area 1.753 Hectare, Araji No. 606, Area 1.181 Hectare and Araji No. 454, Area 0.117 Hectare, till disposal of the question of right and title of the parties. He also directed the S.H.O- Chowk to take possession of the plots in dispute and give the entrustment of same to any impartial person who will provide the statement of income and expenditure of the plots before the Court from time to time. Any further proceeding in the case will not be undertaken after the final adjudication of the question of succession of the property of deceased- Shahdeo.
3. Feeling aggrieved by the impugned order, all the opposite parties, who are collateral of the deceased- Ram Bhavan and the original owner of the property, have filed present revision before this Court under Section 397/401 Cr.P.C. Notices were issued to the respondent- first party before the Court of Magistrate and they put in appearance through their counsel and filed counter affidavit on 16.9.2016, which is placed on record.
4. In Gulabchand vs. State of U.P. and Another, (2004) CrLJ 2672, Allahabad High Court held that an order passed by Executive Magistrate, attaching the property under Section 146(1) Cr.P.C., when there was totally no material before the Magistrate to record his satisfaction regarding likelihood of breach of peace, being mentioned, is not interlocutory order and revision under Section 397 Cr.P.C. against such order is maintainable. Therefore, in the light of aforesaid precedent, this revision is maintainable before this Court.
5. Admit.
6. The facts in brief as carved out from the counter and rejoinder affidavits are as follows:
(i) The respondent- Ram Bhawan, who has claimed himself as son of the sole daughter of the deceased- Shahdeo had filed an application under Section 145 Cr.P.C. before the Court of Upper Zila Magistrate, Sadar, Maharajganj, wherein it was stated to the effect that there is dispute of possession between him and opposite party- Virendra and others. The S.D.O. concerned reported to learned Executive Magistrate that the plots in dispute were property of deceased Shahdeo, who died long before. He was blessed with a daughter, who had also died. The dispute of succession of said property of Shahdeo is under litigation between Ram Bhawan and collaterals of Shahdeo before different courts. Name of Virendra and others (opposite party-respondents) is recorded in Khatauni and they are in possession over the disputed plots. Proceeding under Section 107/116 Cr.P.C. have also been undertaken against both parties. Therefore, with a view to maintain law and order and keeping in view the maintainable litigations between the parties, it is desirable that the disputed property be attached and the question of real heirs of deceased- Shahdeo be adjudicated upon.
(ii) During the course of proceedings under Section 145 and 146 Cr.P.C., opposite party- Janardan- present revisionist No.3 had moved an application before the Court of learned Magistrate stating therein that the plaintiff Ram Bhawan has filed a civil suit for injunction, in which injunction has been granted in favour of the plaintiffs and in this fact of situation and in accordance with law, the present suits are not maintainable and are liable to be dismissed.
(iii) Learned Magistrate has observed in impugned order dated 30.3.2013 that from the perusal of material on record, it appears that manifold suits and proceedings are pending before various courts with regard to disputed plots and in civil suits filed by the plaintiff- Ram Bhavan, the civil court has injuncted the opposite party from interfering in possession of plaintiff but in spite of injunction order of civil court, opposite party and others have taken possession of complete area of disputed plots, in disobedience of civil court's order.
(iv) The opposite party has taken resort of a decided case of this Hon'ble High Court, cited as Shivmurti Pandey and others vs. Bharati Lal Pandey, according to which, in case of pendency of prior civil suit, no proceeding under Section 145 Cr.P.C. can be undertaken by Judicial Magistrate but the first party had taken recourse of a judgement of Hon'ble Allahabad High cited as Girish Chandra Upadhyay vs. State of U.P. and Another, 2007 (2) DNR (HC) 387, in which it is held that the Magistrate is empowered to pass appropriate orders with a view to maintain law and order under Section 145/146 Cr.P.C. even during pendency of civil suit. Thus, learned magistrate concluded that tension is prevalent between the parties in view to their respective claims regarding the possession of the property of deceased- Shahdeo and there is apprehension of breach of peace any time and thus, in this situation, the disputed property is liable to be attached until adjudication of question of real successor of deceased- Shahdeo.
(v) From the perusal of record, it also appears that respondent No.3- Ram Bhavan is claiming his title and possession over disputed property on the basis of succession claiming himself as the son of Smt. Fuda, daughter and sole heir of deceased- Shahdeo whereas revisionists, opposite parties before the Magistrate, has claimed their right over the disputed property on the basis of unregistered Will deed dated 31.3.1978, purportedly executed by Shahdeo, in favour of Prahlad and others. The revisionist Surendra is son of said Prahlad. The respondents have questioned the veracity of the said Will deed in various judicial proceedings and alleged it manufactured document, which was not executed by deceased- Shahdeo. The respondent No.3- Ram Bhavan filed a civil suit No. 402 before the court of Civil Judge (J.D.), Maharajganj on 28.5.2009, wherein, the Civil Judge has passed interim order on 28.5.2009, in which the defendants Virendra and others are directed to restrain from interfering in the possession of plaintiff regarding disputed plots of its half share claimed by the plaintiffs.
(vi) It is also obvious from the record that for deciding the question of title of disputed plots, mediation proceeding has been taken before various revenue and conciliation courts by the parties and the matter is still pending before conciliation court for decision.
7. Feeling aggrieved by the impugned order of learned Magistrate, this revision has been preferred mainly on the ground that learned Magistrate has passed impugned order dated 30.3.2013, on a complaint/application dated 27.7.2012, made by the respondent No.3 before him, while appeal No.2468 of 2017 Consolidation and Holdings Act is pending before the Settlement Officer of Consolidation and Holdings. Order of Consolidation Officer has been stayed by the Settlement Officer on 17.10.1988, despite that the land in question has been attached under Section 146(1) Cr.P.C. by the impugned order, which is illegal, arbitrary and against the mandate of law.
8. The impugned order has been passed on the basis of report submitted by the Sub In-charge of Police Station concerned. Valuable rights of the revisionists has been vacated by the impugned order. Learned Magistrate exercising its jurisdiction, not vested in him by the law, passed the impugned order without going into the merits of the case and considering the material evidence adduced by the revisionists, hence, the same is liable to be set aside by this Court and suitable orders may be passed.
9. The objection to present revision has been filed in the form of counter affidavit by the respondent No.3, wherein it is stated that admittedly the land in dispute belongs to deceased- Shahdeo, who died. His sole daughter Fuda was her heir and legal representative and the defendant-respondent No.3 is son of said Fuda. The revisionists have no concern with the land in dispute, as they tried to interfere in the peaceful possession of respondent No.3, hence, he made complaint before the police with regard to land in dispute. The impugned order was passed by the learned Magistrate only to maintain peace on the spot and is correct. Deceased- Shahdeo never executed any deed to create any right in favour of anyone including the revisionists. In fact, he remained as owner in possession of the property in dispute up to his lifetime and, therefore, property vested in his daughter, who is mother of defendant. The Will deed propounded by the revisionists is a forged document and it was never executed by the said Shahdeo in favor of his nephew Virendra and others. Consolidation Authorities have found that Shahdeo was inherited by his daughter Fuda and now by respondent No.3 Ram Bhawan, hence, the allegations in respect of consolidation proceedings are baseless and have no locus to stand. The name of Fuda has been maintained by order dated 16.12.2014 passed by the Consolidation Officer and the same has been acted upon in Khatauni thus, the name of mother of respondent No.3 is recorded as heir of deceased- Shahdeo in Khatauni, copies thereof are filed along with the counter affidavit. There is an injunction order of civil court in favour of the respondent No.3. However, in violation of the order of civil court, revisionists are trying to interfere in the peaceful possession of respondent No.3, hence, thereby appreciation of breach of peace justifying the police action and consequent proceeding under Section 145/146 Cr.P.C.
10. In rejoinder affidavit, the revisionist have stated that the names of the revisionists had already been recorded as early as on 19.3.1978 on the basis of Will executed by deceased- Shahdeo in favour of the revisionist and they are in possession over this land in dispute on the basis of said Will deed. In such a scenario, the impugned order dated 30.3.2013 is illegal and not sustainable under the eyes of law.
11. Learned counsel for the revisionists advanced his submissions in present revision pressing the grounds taken in revision and placed reliance on a Full Bench Judgement of this Court in case of Munna Singh @ Shivaji Singh and Another vs. State of U.P.and Another, 2011 (9) ADJ 98, wherein, it was held that orders passed under Section 145 (1) and 146(1) of the Code are not in every circumstance, orders simplicitor, and therefore a revision would be maintainable in the light of the observations made in this judgment depending on the facts involved in each case.
12. The invoking of the emergent powers under Section 146(1) Cr.P.C. is dependent on the satisfaction of the Magistrate that it is a case of emergency and none of the parties are in possession or the Magistrate at that stage unable to decide as to which of the parties was in possession. It is only then that attachment can be resorted to. An emergency is an unforeseen occurrence or a crisis with a pressing necessity which demands immediate action. An emergent situation is one that suddenly comes to notice and is almost unexpected or unapprehended. It is a situation that requires prompt attention impelling immediate action. The action to be taken would however be dependant on the satisfaction of a Magistrate recorded under Section 145 (1) Cr.P.C. that there exists an apprehension of breach of peace either on the basis of a police report or upon other information received. The order of attachment on such a dispute being brought to the notice of the Magistrate therefore is clearly linked with the right of a party to retain lawful possession. The aforesaid ingredients have to exist to allow the Magistrate to exercise his authority within his jurisdiction.
13. Learned counsel for the revisionists further submitted that in impugned order itself it is stated by the Magistrate that the opposite party has taken possession over entire disputed land. Thus, it cannot be said that the Magistrate has decided that none of the parties then was in possession as referred in Section 145 Cr.P.C. wherein it is provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). Learned counsel next submitted that there is no finding of learned Magistrate in the impugned order that the revisionists were dispossessed within two months next before the date on which the report of the police officer for initiating proceeding under Section 145 Cr.P.C. was received by him as proceeding under Section 145(4) proviso. Thus, learned Magistrate has also not decided the question of emergency as provided under Section 146(1) Cr.P.C. and passed the impugned order to the detriment of the revisionists who were in possession of the property in dispute.
14. In Ganesh Prasad & Others vs. State of U.P. & Others, Crime 2686 of 2016 decided on 27.3.2018, attachment order passed by the Magistrate under Section 146(1) Cr.P.C. was challenged before this Court, wherein it was observed as under:
"31. The invoking of the emergent powers under Section 146 (1) Cr. P.C. is dependent upon the satisfaction of the Magistrate that it is a case of emergency and none of the parties are in possession or the Magistrate at that stage unable to decide as to which of the parties was in possession. It is only then that attachment can be resorted to. An emergency is an unforeseen occurrence or a crisis with a pressing necessity which demands immediate action. An emergent situation is one that suddenly comes to notice and is almost unexpected or un-apprehended. It is a situation that requires prompt attention impelling immediate action.
32 . The action to be taken would however be dependent on the satisfaction of a Magistrate recorded under Section 145 (1) Cr. P.C. that there exists an apprehension of breach of peace either on the basis of police report or upon other information received. The order of attachment on such a dispute being brought to the notice of the Magistrate therefore is clearly linked with the right of a party to retain lawful possession. The aforesaid ingredients have to exist to allow the Magistrate to exercise his authority within his jurisdiction. Accordingly the assumption of jurisdiction is dependent on the contingency that may arise in a dispute referable to the said provisions and hence what necessarily follows that if there is an exercise for want of jurisdiction or erroneous exercise of jurisdiction, then the order on the given facts of a case may not be a mere interlocutory order. If the exercise of a power and passing of an order is questionable to the extent of touching the rights of the parties or are orders of moment, depending on the peculiar facts of individual cases, then the order in our opinion would be an intermediate nature of an order that can be subjected to a revision under Section 397 Cr. P.C.
33. The legislature in its wisdom will be presumed to have curtailed the revisional jurisdiction to the extent as spelt out under sub-section (2) of Section 397 Cr. P.C. in order to prevent any delays or unnecessary impediments in proceedings relating to trials under the Criminal Procedure Code. As noticed above, the orders which do not fall within the exact nature of an interlocutory order may therefore not be prohibited from being subjected to a revision in larger public interest. A litigant who is aggrieved by an action which does not involve immediate urgency can always knock the doors of the revisional Court, dependent on the facts of each individual case as explained hereinabove.
34 . We would also like to add that there were divergent views with regard to the jurisdiction of the Magistrate proceeding after attachment under Section 146 (1) Cr. P.C. but the said issue came to be resolved by the Apex Court in the case of Mathura Lal vs Bhanwar Lal, 1979 (4) SCC 665.
35. In view of what has been expressed herein above, we find ourselves in respectful agreement with the views expressed by the various courts and this Court to the effect that there is a third category of order which falls in between an interlocutory and final order that does touch upon the rights of the parties and is an order of moment. An order under Section 145 (1) followed by an order under Section 146 (1), or even passed simultaneously, bring to the forefront the primary question of the assumption of jurisdiction by the Magistrate to proceed in a matter. If the facts of a particular case do not warrant the invoking of such jurisdiction, for example, in cases where civil disputes are pending and orders are operating, then in view of the law laid down by the Apex Court in the decisions referred to herein above following Ram Sumer Puri Mahant's case (supra), an order ignoring such proceedings will have to be curtailed for which a revision would be maintainable under sub-section (1) of Section 397 as, such an order, would not be a mere interlocutory order and would touch upon the rights of the parties."
15. A photocopy of the unregistered will deed dated 19.3.1978 propounded by revisionist is placed on record, which reveals that in this will deed deceased Shahdeo, the original owner of the property in dispute, is shown to have bequeathed his agricultural property in favour of Virendra and Surendra, S/o Prahlad and Janardan and Bal Govind S/o Ram Lal. In this will deed it is stated that he was not blessed with any male or female issue. On the basis of this will deed, the property in dispute was initially mutated in favour of the revisionist, who were nephews of the deceased but subsequently, this was not relied upon by the Revenue and Consolidation Authorities and presently name of respondent No.3 Ram Bhawan, has been directed to be mutated by Consolidation Officers, as reveals from order dated 16.12.2014 passed by the Consolidation Officer after remand of the case. An ad interim injunction order in favour of the respondent No.3 is also being passed by the Civil Court in Civil Suit No. 402 of 2009 on 28.5.2009, in favour of the respondent No.3 Ram Bhawan against present revisionists, who are defendants in that suit. However, on perusal of statutory provisions and relevant case law, this is obvious that for passing a preliminary order under Section 145 Cr.P.C., the Executive Magistrate will have to satisfy from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction. Similarly, while passing a final order of attachment under Section 146 Cr.P.C., the Magistrate will have to be satisfied that the case is one of emergency, or he has to decide that none of the parties was then in such possession. In the present case, learned Executive Magistrate has stated in impugned order that the opposite parties Virendra and others have usurped the possession of entire disputed plot in violation of the order of Civil Court whereas under Section 145 Cr.P.C., the proceedings can be initiated where it appears to the Magistrate that any party has been visibly and wrongly dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before of his order under sub-section 1 to Section 145 Cr.P.C. Thus, the jurisdiction under Section 146 Cr.P.C. cannot be exercised where the applicant has been dispossessed prior to two months by the opposite party. Similarly, in impugned order learned Magistrate has not stated specifically the matter to be one of emergency. No evidence has been mentioned which might have been recorded for satisfaction that the case is one of emergency and instead of giving a finding that none of the parties was then in such possession, he has observed that the opposite parties have usurped possession of disputed plot in violation of an interim injunction order of civil court, which was passed in the year 2009.
16. In Ram Raj vs. State of U.P., 1995 U.P. Cri R 745 (All), Allahabad High court held where the civil court had granted injunction in plaintiffs' favour, the proceeding under Section 145 Cr.P.C. cannot be initiated. Similarly in Darshan Lal vs. Sain Dass, 2002, CriLJ 3214, Jammu and Kashmir High Court held that where dispute between the parties pertaining to disputed land is pending in civil/revenue courts, in such cases, preliminary proceeding in respect of some property are not permissible.
17. In Ranjeet Singh vs. Moti Lal Katiyar, 1988 (1) Crimes 102 (All), this Court held that where the question of possession was involved and pending in the civil court on the date when the orders under Section 145 (1) and 146(1) Cr.P.C were passed and injunction order was in operation, proceeding cannot be allowed to continue as it would be nothing but abuse of process of law.
18. In Mangi Lal vs. Bhangmal, 1988 CrLJ 1905, Madhya Pradesh High Court held that mere pendency of litigation may not furnish any justification for dropping any proceeding where the relief of temporary injunction has been sought and obtained ultimately be urged that despite the order granting temporary injunction apprehension of breach of the peace still exists and the order granting temporary injunction in any way is less efficacious than the 145 (6) (A) Cr.P.C. However, in Om Prakash vs. Dharam Chand 1998 (3) Crimes 898, 902, Jammu and Kashmir High Court held that by directing the maintenance of status quo regarding possession of the subject matter in the civil suit, the civil court does not adjudicate either intermily or finally on the question of possession and such an order by itself does not take away the jurisdiction of criminal law under this section to initiate or continue with a proceeding, on being satisfied about the existence of the grounds for exercising powers under this Section.
19. Similarly, in Neelam Singh vs. State of U.P., 1999 CriLJ 90, this Court held that where the civil court has passed order for status quo only and has not given any protection about actual physical possession, proceedings under Section 145 Cr.P.C. are not barred. In Manzooran vs. State of Punjab, 1988 (1) Crimes 547, High Court of Punjab and Haryana held that the order of the civil court must be respected even while initiating a proceeding under this Section. The Magistrate can very well initiate proceeding under this Section to decide, which party was in possession. But at the same time for prevention of breach of peace it can be sought to proceed under Section 107 Cr.P.C. and not to attach the property under Section 146 Cr.P.C., as that would tend to violate the orders of the civil court by dispossessing the party, who was ordered to be left in possession by the order of maintenance of status quo.
19. Learned counsel for the revisionists placed reliance on Balwant Singh vs. Daulat Singh (1997) 7 SCC 137, which is reiterated in Jitendra Singh vs. State of M.P. 2021 SCC OnLine SC 802, wherein it is held that "this is well settled position of law that mutation entry does not confer any right, title or interest in favour of the person and it is only recorded for the fiscal purpose." However, in the present case, it may be added that mutation entry in favour of the respondent No.3 has been entered by orders of competent court i.e. Consolidation Court after long drawn litigation between the parties.
20. On consideration of above cited case laws and in the light of statutory provisions under Section 145 and 146 Cr.P.C., this Court is of the opinion that although the learned Magistrate has observed in impugned order that ad interim injunction order was passed in favour of the party, who initiated the proceeding under Section 145 Cr.P.C. before him and passed the impugned order to attach the subject matter of dispute, giving it under the custody of some impartial custodian till decision of question of title in possession by competent court. The same cannot be sustained as ad interim injunction order is specifically passed in the civil suit in favour of the respondent No.3. Learned Magistrate had not given his satisfaction as required under Section 145(1) Cr.P.C. regarding dispute is likely to cause the breach of peace or state of emergency as cited under Section 146 (1) Cr.P.C. exists. Instead of deciding that none of the parties were then in possession, which prompted the passing of the impugned order, he has observed that the opposite parties have usurped the possession of the entire disputed plot in violation of civil court's order, thus impugned order cannot be countenanced and sustained within the purview of Sections 145 (1) and 146(1) Cr.P.C. In view of facts and circumstance of the case, the order impugned is liable to be quashed.
21. Accordingly, the revision is allowed and impugned order dated 30.3.2013 passed by learned Magistrate in Complaint Case No. 119/123 (State vs. Ram Bhawan & others) under Section 145 of Cr.P.C., Police Station- Chowk, District Maharajganj is set aside in the light of the discussion made above. However, parties are relegated to avail remedy before civil court and it is open to respondent Ram Bhawan, who is presently recorded as tenure holder of the land in dispute that if he is dispossessed in violation of ad interim injunction order of civil court, he may move appropriate application for enforcement and punishment for disobedience of that order, before the court concerned to seek appropriate remedy and the same will be decided by the learned civil court in accordance with law after giving opportunity of hearing to both the parties. Learned Executive Magistrate will be within his right to initiate proceeding under Section 107/151 Cr.P.C., if any of the party is likely to commit breach of peace or disturb the public tranquility in view of the dispute over the land in question.
Order Date :- 08.12.2022 Kamarjahan