Allahabad High Court
Khalid Khan And 8 Others vs State Of U.P. And Another on 7 March, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:41224 Reserved on 12.12.2023 Delivered on 07.03.2024 In Chamber Case :- MATTERS UNDER ARTICLE 227 No. - 7170 of 2023 Petitioner :- Khalid Khan And 8 Others Respondent :- State Of U.P. And Anothers Counsel for Petitioner :- Arvind Srivastava Counsel for Respondent :- G.A.,Syed Mohammad Abbas Abdy Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Arvind Srivastava, learned counsel for the petitioners, Sri Syed Mohammad Abbas Abdy, learned counsel for respondent no. 2 and learned A.G.A for the State-respondent.
2. This misc petition under Article 227 of the Constitution has been filed on behalf of Khalid Khan and 8 others against State and private respondent no. 2-Amir Khan, with a prayer to set-aside the impugned order dated 23.06.2023 passed by the Session Judge, Jhansi, by which the criminal misc case no. 336 of 2023 has been dismissed at the stage of admission.
3. The relevant facts are as below:-
• That opposite party no. 2-Amir Khan and one Mohd. Ahad Samad filed an application before the tehsildar, Jhansi on 22.11.2022 with the allegations in brief that both of them have been in possession of their ancestral plot measuring 1053 sq.ft. And that some miscreants namely, Khalid Khan, his brother and his historysheeter uncle have been threatening them saying that the plot belonged to them and therefore opposite party no. 2 etc moved an application and prayed to therein that in a conspiracy hatched by them and in collusion with government officials, they (Khalid Khan and others) got entered name of themselves in revenue papers, therefore, the matter should be inquired into and suitable action may be taken against Khalid Khan and others;
• Tehsildar passed an order for issuance of notice to the parties;
• Khalid Khan earlier moved an application dated 11.02.2023 during thana diwas, on which the Inspector, Chowki Khanderao Gate, Police Station Kotwali gave a report on 20.02.2023, in which, in the end it was submitted that a team of police officer/revenue officials should be constituted to find out as to who are the co-sharers and who are in possession of which part of the plot no. 3034 and that to avoid any untoward situation, both the sides have been challaned under sections 107/166 Cr.P.C.;
• The Inspector, Chowki Khanderao Gate, Police Station Kotwali gave a similar reports on 22.02.2023 and 11.03.2023;
• The Lekhpal, Tehsil Chetra, Jhansi, with regard to another application moved by Amir Khan (respondent no. 2), after inspecting the spot, gave an opinion that the parties should be directed to seek relief from civil court with regard to the disputed property, which was a portion of plot no. 3034;
• OS no. 188 of 2023 was filed by Mohd. Ahad Samad s/o Abdul Samad and 2 others against Khalid Khan and others, claiming themselves as owner in possession of plot no. 3034 min. This civil suit was filed on 05.05.2023 for relief of injunction;
• Amir Khan (opposite party no. 2) initiated a proceeding under section 145 Cr.P.C. by moving an application before the City Magistrate, Jhansi on 21.04.2023 claiming that the opposite side broke open the locks and attempted to dispossess them and therefore proceedings under section 145 Cr.P.C. must be initiated forthwith;
• The City Magistrate passed an order dated 24.04.2023 directing the SHO, Kotwali to visit the spot and the parties to maintain status quo till further order;
• Khalid Khan and others filed Criminal Revision no. 131 of 2023, challenging the order passed by the City Magistrate on 24.04.2023, in which notices were issued to the opposite side;
• Amir Khan moved another application before the City Magistrate, Jhansi against O.Ps Khalid Khan and others;
• On the basis of the application moved by Amir Khan, the Sub-inspector Vinod Kumar Singh gave a report that he visited the spot and that the disputed plot was situated in plot no. 3034 and that both the sides i.e., Amir Khan and Khalid Khan and others had put their own locks and that Khalid Khan and other forcibly took possession thereof after breaking them and that both the sides claim to be in possession and that the proceedings under sections 107/116 Cr.P.C. has been undertaken;
• On the bais of the aforesaid report, a case no. 09 of 2023 (Amir Khan vs. Khalid Khan) under section 145 Cr.P.C. was registered and a preliminary order under section 145(1) Cr.P.C. directing both the sides to appear and produce their evidence and to keep peace;
• Lekhpal, Sadar gave another report to the City Magistrate on 10.05.2023 saying that both the sides had put their locks on the main gate and that Khalid Khan and other had broken the locks and both the sides claimed their possessions;
• In the same case i.e., case no. 09 of 2023, the City Magistrate passed another order under section 146(1) Cr.P.C.; this order was passed on 20.06.2023 directing the attachment of the property and handed over the same to any independent person;
• Khalid Khan and another moved a preliminary objection against the application moved under section 145 Cr.P.C.;
• Challenging the order dated 20.06.2023 under section 146(1) Cr.P.C., Khalid Khan and other preferred a Criminal Revision no. 336 of 2023 filed on 22.06.2023;
• After hearing both the sides, the revisional court by order dated 23.06.2023 dismissed the Criminal Revision no. 336 of 2023 holding that the impugned order dated 20.06.2023 is merely an interlocutory order, therefore, the revision is not maintainable.
4. The contentions of the petitioners, in nutshell are that the opposite side acknowledged the title of Hafeez Khan, his predecessor in interest, over the disputed area and the police authorities/S.H.O. gave a wrong report in collusion with Amir Khan and that they are in actual possession. Further important contention is that there was no emergency for passing an order under section 146(1) Cr.P.C.; there was no occasion of the attachment of the property; the Magistrate did not give any reasons for passing the order and that the revisional court wrongly dismissed the revision holding the order to be interlocutory one.
5. The respondent no. 2 has given a detailed counter affidavit, disputing number of factual and legal issues arising out in the matter.
6. Perusal of the impugned shows that the revisional court took a view that the order passed under section 146(1) Cr.P.C. is merely an interlocutory order and therefore the revision is not maintainable and dismissed the same. For that very reason the revisional court refused to exercise its powers under section 397 Cr.P.C.
7. The question as to maintainability of the criminal revision under section 397 Cr.P.C., against an order passed under sections 145(1) and 146(1) Cr.P.C. was referred by a single Judge. The Full Bench of Allahabad High Court in Munna Singh @ Shivaji Singh And Others vs State of U.P. and Another (Criminal Revision No. 4414 of 2004 decided on 11th October, 2011), traversed through a number of judicial pronouncements on this issue and held as below:-
"Our answer to the question referred would be therefore in the negative, and we hold that orders passed under Sections 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."
8. It may be noted that the impugned order by the learned revisional court also refers to the aforesaid judgment, however didn't apply the stare decisis on the ground that the facts of the matter before it were different from those on the basis of which the judgment in Munna Singh @ Shivaji Singh And Others (supra) was given. It may also be noted that the judgment of Munna Singh @ Shivaji Singh And Others (supra) was passed by the Full Bench on reference from a single Judge. The learned revisional court has not elaborated and clarified how the facts of the case were different, to justify the stand taken by the revisional court that the principle laid down in the above noted case shall not apply in the instant matter.
The Allahabad High Court in Indramohan Gautam vs. State of U.P. & Another (Criminal Revision No. 1003 of 2012 decided on 25.08.2017), treated the order passed under section 146(1) Cr.P.C. not interlocutory order and found the revision as maintainable.
The Allahabad High Court observed in Indramohan Gautam (supra), as below:-
"..........Prior to 2011 in a number of cases, it was held that an order of attachment under Section 146(1) Cr.P.C. is an interlocutory order against which revision is not maintainable under the provisions of Section 397 Cr.P.C. However, in due course of time, the matter of maintainability of revision was referred to full Bench and the full Bench of this Court in the case of Munna Singh @ Shivji Singh and others Vs. State of U.P. 2011 (9) ADJ 1998 held that "An order of attachment underSection 146(1) Cr.P.C. is an order of movement which has effect on the right of party in possession-cannot therefore, be said to be mere interlocutory order so as to bar revisional jurisdiction of High Court.
Invoking of the emergency powers under Section 146(1) Cr.P.C. is dependent on satisfaction of Magistrate-When none of parties are in possession, or Magistrate is unable to decide as to which of the parties was in possession, exercise of emergency power can be resorted to.
Where rights of parties affected, that is not an interlocutory order of attachment and depends upon facts of each particular case.
Order under Sections 145(1) & 146(1) Cr.P.C. are not in every circumstance, orders simplicitor-therefore a revision would be maintainable depending on facts involved in each case."
In view of the law laid down by the full Bench of this Court, the contention of learned A.G.A that impugned order is an interlocutory order and revision against the same is not maintainable may not be accepted and the revision may not be dismissed as not maintainable."
9. The fact of the matter is that several convoluted factual and legal questions are involved. The claim of the petitioners is that a false report was given by the concerned Inspector in collusion with the opposite side for initiating a proceeding under section 145 Cr.P.C. There are allegations and counter allegations with regard to title and de-facto possession over the property. These legal position may be noted that the provisions of section 146(1) Cr.P.C. come into play where none of the party is found in possession at the relevant time and where the Executive Magistrate is unable to come to a definite conclusion as regard possession.
10. The Allahabad High Court in Prabhakar Tiwari vs. State of U.P. and 5 Others, 2023:AHC:193407, had observed in para no. 31 as below:-
"31. The contingencies which open the field for operation of section- 146(1) Cr.P.C. must be understood properly.
(i) Whether the case is one of emergency?
(ii) Whether none of the parties were found in such possession as is referred to section 145 Cr.P.C.?;
(iii) Whether the Magistrate is unable to come to a definite conclusion as regard which party was in possession?
Where any of such contingencies exist, the Executive Magistrate may proceed to attach the property until a competent court determines their rights. It may be noted that such an order, though temporary in nature shall remain in force till the competent court decides the question that which of the parties is entitled to possess that property."
11. The case of the petitioners is that no such contingencies existed which could prompt the Executive authority to attach the property in question and to deliver the possession to a receiver. He, therefore filed a criminal revision but the same has been dismissed at the stage of admission.
12. In my view, the impugned order cannot be treated as merely an interlocutory order. Learned revisional court ought to have admitted the revision and decide the same in accordance with law.
13. In view of the above, the petition is allowed. The impugned order dated 23.06.2023 is hereby set-aside. The revisional court is directed to admit and decide the revision, according to law.
Order Date:- 7.3.2024 #Vikram/-