Delhi District Court
Sh. Subodhkant Sahai vs State (Nct Of Delhi) on 3 October, 2017
Criminal Revision No.167/2017
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 167/2017
Under Section : 145 Cr.P.C. (Kalandra vide DD no. 17-A)
dated 31.03.2017
Case No. : SDM(MV)/Cr.P.C. 145/A-3/2017 /15
Police Station : Pandav Nagar
CNR No. : DLET01-008394-2017
In the matter of :-
1. SH. SUBODHKANT SAHAI
R/o. E-39, Sector - 03, HIC Dhurva,
Ranchi, Jharkhand.
2. SH. ANIL SHARMA
S/o. Late K.P. Shrma,
R/o. Plot no. 4 & 5, First Floor,
Ashirwad Appartment, Moti Ram Road,
Shahdara, Delhi.
3. DR. ASHOK CHAUHAN
S/o. Late Rajvir Singh,
R/o. D-34, East Vinod Nagar,
Delhi.
............PETITIONERS
VERSUS
1. STATE (NCT OF DELHI)
2. RECEIVER
SHO PS Pandav Nagar,
Distt. East Delhi.
3. SH. BALMIKI PRASAD SINGH
S/o Late Radheyshyam Singh
R/o Village & Post Auta Maokama,
Distt. Patna, Bihar.
4. SH. SANJEEV KUMAR SINGH
S/o Sh. Rajeshwar Singh
R/o Village Sihama, PS - Matihani,
Distt. Begusarai, Bihar
Page 1 of 8 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi
Criminal Revision No.167/2017
5. Ms. PRIYAMVADA SINGH
D/o Sh. Naveen Prasad Singh
R/o Pirwali Gali, Patparganj,
Mayur Vihar, Phase-1,
Delhi.
..........RESPONDENTS
Date of Receiving : 19.07.2017
Date of Institution : 20.07.2017
Date of reserving order : 03.10.2017
Date of pronouncement : 03.10.2017
Decision : Petition is allowed.
ORDER
1. This revision petition is directed against the order dated 25.04.2017, passed by Sub-Divisional Magistrate, Mayur Vihar in a case titled as State v. Subodh Kant Sahay & Ors. (party no. 1) and Sh. Balmiki Prashad Singh & Ors. (party no. 2), bearing Case No. SDM(MV)/CR.P.C. 145/A-3/2017, on receipt of Kalandara vide DD no. 17-A dated 31.03.2017, PS Pandav Nagar, Delhi. Vide impugned order, ld. Sub-Divisional Magistrate, Mayur Vihar, attached the land comprised in Khewat no. 8/29, Khasra no. 368, Village Gharonda Neem ka Banger, Delhi (Near Mayur Vihar Ph.-I) including buildings/structures built thereupon to the Court till the right of possession is decided by a competent court, thereby appointing SHO PS Pandav Nagar as receiver of the aforesaid property. BRIEF FACTS OF THIS CASE :-
2. Briefly stated, the relevant facts giving rise to this revision petition are that a kalandara vide DD no. 17-A, dated 31.03.2017, PS Pandav Ngar, Delhi regarding dispute over possession of land comprised in Khewat no. 8/29, Khasra no. 368, Village Gharonda Neem ka Banger, Delhi (Near Mayur Vihar Ph.-I) was filed on behalf of SHO, PS Pandav Nagar, thereby appreciating cause of breach of peace and thus, a preliminary order under section 145 (1) Cr.P.C. was made Page 2 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.167/2017 on 10.04.2017 and notice was issued to the concerned parties.
3. In the kalandara u/s 145 Cr.P.C., it was alleged that both parties i.e. petitioners and respondents herein were having dispute over governing body of All India Panchayat Parishad. This dispute had resulted into several complaints being made by both parties against each other regarding forcible possession of some rooms of the office of the society. At the instance of Anil Sharma, FIR no. 698/2015 u/s 448/341/506/34 IPC was registered against B.P. Singh and Rajender Kumar Tripathi. It was further informed in the kalandara that on 14.10.15 a similar kalandara u/s 145 Cr.P.C. was sent to the office of SDM Mayur Vihar on 06.11.15. On 10.03.17, once again, a quarrel had taken place between both these parties, wherein Anil Sharma and Ashok Chauhan alleged against B.P. Singh and his associates that they had broken the lock of 6 th room and had taken forcible possession of the same. On the other hand, B.P. Singh alleged that other party had changed the lock of that room during his absence. Therefore, he had to break the lock, so as to enter into room. On 22.03.2015, FIR No.98/2017 was registered against B P Singh and his associates U/s 448/506/34 IPC. On 30.03.2017, once again a quarrel had taken place between both these parties and action U/s 107/150 CrPC was taken against both the parties. Since breach of peace was apprehended, therefore, this Kalandra was sent to SDM.
4. After issuing notice u/s 145(1) CrPC on 10.04.2017, Kalandra was fixed for further hearing on 17.04.2017. On the same day none had appeared from the side of petitioners herein before SDM. Time was sought by respondents herein to file their claim with respect to possession and the case was fixed for 27.04.2017. In the meantime, another report was filed by SDM on 25.04.2017 on behalf of SHO, PS Pandav Nagar stating that Kalandra u/s 145 CrPC was pending, Page 3 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.167/2017 however, both parties were still making continuous efforts to stake their claim over disputed land. On 23.04.2017, on the date of voting of MCD Election 2017, both parties had entered into altercation and scuffle, so as to get possession of disputed land and therefore preventive action u/s 107/151 CrPC was taken and unruly members of both parties were sent to judicial custody by concerned SEM. It was further reported that in view of forthcoming counting of votes of MCD Election, there was possibility that these parties would hamper the counting process by committing breach of peace in the area.
5. Vide impugned order dated 25.04.2017, ld. Sub-Divisional Magistrate, Mayur Vihar, attached the land comprised in Khewat no. 8/29, Khasra no. 368, Village Gharonda Neem ka Banger, Delhi (Near Mayur Vihar Ph.-I), including buildings/structures built thereupon to the Court till the right of possession is decided by a competent court, thereby appointing SHO PS Pandav Nagar as receiver of the aforesaid property, hence this revision was filed.
GROUNDS : -
6. Being aggrieved of the impugned order dated 25.04.2017, petitioners have preferred this revision petition on the following grounds :-
● That the trial court erred in not correctly appreciating the facts of the case and did not afford opportunity to the petitioners to present their case, which is against the natural justice. ● That the trial court erred and did not apply it's judicial mind and also exceeded it's jurisdiction, which is illegal and is liable to be set aside.
● That there was no dispute in respect of the property/premises in question and as such there was no apprehension of breach of peace and the impugned order is illegal and therefore, it is liable to be set aside.Page 4 of 8 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.167/2017 ● That the ld. SDM has not applied his mind in the facts and circumstances of the case and mechanically proceeded on the report of SHO, PS Pandav Nagar and passed the impugned order, which is not based on the true facts of the case and thus, same is liable to be set aside.
ARGUMENTS AS WELL AS APPRECIATION OF ARGUMENTS, FINDINGS & DECISION :-
7. The arguments made by both the parties before this court were mostly based on their respective factual contentions. However, the factual matrix cannot be resolved in the revisional jurisdiction. Arguments on the point of legality of impugned order were made on the lines that ld. SDM did not act in accordance with provisions u/s 145 and 146 CrPC because there was no case of emergency for breach of peace and these provisions were misused to pass impugned order against principle of natural justice. It was further contended by counsel for the petitioners that the impugned order was passed without hearing the petitioners and it is based on baseless allegations and baseless apprehension of breach of peace.
8. The arguments made on behalf of the respondent also referred to the disputed facts, which are not relevant for adjudication in this proceeding. No concrete legal arguments have been addressed on the part of respondents.
9. Before looking into the legality of impugned order, it is relevant to mention the relevant legal principles arising out of section 145 and 146 CrPC. On receipt of a report regarding apprehension for breach of peace, section 145 CrPC empowers the SDM to make an order so as to require the parties concerned to attend his court and to put in their written statements with respect to claim regarding actual possession of the subject matter. The SDM has to ascertain the Page 5 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.167/2017 actual physical possession over the disputed property and on the basis of his finding, he may pass further orders, either to restore the possession or to direct one party to desist from disturbing the possession of another party, until he is evicted in due course of law. As per section 146 CrPC, at any stage after making any order u/s 145(1) CrPC, if ld. SDM considers the case to be one of emergency or if he decides that none of the parties was in possession of disputed property or if he is unable to satisfy himself as to which of the party was in possession, he may attach the disputed property, until a competent court determines the rights of the parties with regard to the person entitled to possession thereof. It further provides that Magistrate may further withdraw the attachment order, if he is satisfied that there is no longer any likelihood of breach of case.
10. Coming back to the case in hand, as already mentioned herein above, the proceedings u/s 145 CrPC was pending for filing of respective claim by both parties with respect to their possession. This case was fixed for hearing on 27.04.2017. However, on the basis of another report, order of attachment was passed on 25.04.2017 in absence of both the parties. It is well apparent from the record that ld. SDM had not made any enquiry in respect of actual possession over disputed property. The emergency based on the report of police dated 25.04.2017 was shown to be on account of forthcoming counting of votes for MCD Elections and another incident of altercation between both the parties on 23.04.2017. It is worth to be seen that this report itself mentions that already a preventive action u/s 107/151 CrPC was taken against both parties and the unruly members were also sent to judicial custody by SEM. It can be safely assumed that in the proceedings u/s 107/151 CrPC, both parties would have been released only on furnishing their undertaking not to Page 6 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.167/2017 commit breach of peace. If that was the condition (not explained in the report dated 25.04.2017), then there was no further cause of action to apprehend breach of peace. If that was not the situation, then both parties would have remained in judicial custody itself.
11.I am unable to find any connection between dispute related to possession over property in question and counting of votes for MCD Election. Once a dispute related to actual possession over property in question was referred to ld. SDM u/s 145 CrPC and on account of breach of peace already an action u/s 107/151 CrPC was taken against both parties, then in my opinion, there was no emergency to take extreme step to attach the property in question, that too, in the absence of both the parties and without giving any opportunity to both parties to make their claims before ld. SDM. Breach of peace had nothing to do with counting of votes and even if, there was no counting of the votes, on account of apprehension for breach of peace, already a Kalandra u/s 145 CrPC was made before ld. SDM.
12.The record also shows that despite directions given by ld. SDM to put up the record of previous Kalandra u/s 145 CrPC dated 14.10.2015, such records were not put up before him. Rather, report was given that no such record was available in the office of SDM, Mayur Vihar. Therefore, the desirable course of action was to make comprehensive enquiry u/s 145 CrPC, rather than to act u/s 146 CrPC on the grounds of emergency. From the subsequent order dated 27.04.2017, I also find that ld. SDM closed this matter altogether on the grounds of having passed impugned order u/s 146 CrPC. In my opinion, such order being passed even without affording opportunity to both parties to put in their claim with respect to their actual possession, so as to resolve the dispute in accordance with law u/s 145 CrPC, was nothing else but a shortcut method being Page 7 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Revision No.167/2017 adopted to close the case. One should not forget that the basic objective to act u/s 145 CrPC is to take action to resolve the grounds for breach of peace. However, in the case in hand, I find that all the reasons have been left open for both parties to continue putting their stake of actual possession over disputed property, which had been the matter of concern for local police, so as to apprehend breach of peace.
13.In these circumstances, I do find that the impugned order dated 25.04.2017 and subsequent order dated 27.04.2017 are not sustainable on the parameters of law. Hence, same are hereby set aside. Matter is remanded back to ld. SDM to proceed further u/s 145 CrPC, to take decision within parameters of said law. Both the parties shall appear before ld. SDM on 13.10.2017.
14.Trial Court record be sent back alongwith copy of this order. Revision file be consigned to record room. Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court No.3, PRAMACHALA Karkardooma Courts, Delhi Date: 2017.10.06 15:26:58 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 03.10.2017 Special Judge (PC Act) CBI, East (This order contains 8 pages) Karkardooma Courts, Delhi Page 8 of 8 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi