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IN THE HIGH COURT OF ALLAHABAD
O. P. GARG
RAMESH CHANDRA SAXENA - Appellant
Versus
VITH ADDITIONAL SESSIONS JUDGE, ALIGARH - Respondents
CRI. MISC. APPLN. 2349 Of 1997
Decided On : 12/19/1997
CRIMINAL PROCEDURE CODE - SECTION 145 - POSSESSION - ACTUAL PHYSICAL POSSESSION - BURDEN OF PROOF - JURISDICTION OF MAGISTRATE - ATTACHMENT OF PROPERTY - EMERGENCY - SCOPE OF SECTION 146 - REVISION - SCOPE OF POWERS OF REVISION COURT - INHERENT POWERS OF HIGH COURT UNDER SECTION 482 - APPLICABILITY OF BAR UNDER SECTIONS 397(3) AND 399(3) - MAINTENANCE OF PETITION UNDER SECTION 482 AFTER REVISION.
Fact of the Case:
Dispute over possession of a shop between the petitioner, Ramesh Chandra Saxena, who claimed to be the tenant and in possession through his salesman, Ashok Kumar Jain, and Ashok Kumar Jain, who claimed to be in possession in his own right for 12 years. Proceedings under Section 145 of the Code of Criminal Procedure were initiated, and the City Magistrate ordered the sealing of the shop. Ashok Kumar Jain filed a revision application, which was dismissed as not maintainable. He then filed a civil suit and obtained an injunction. The City Magistrate, after considering the evidence, found that Ramesh Chandra Saxena was in possession of the shop and that Ashok Kumar Jain was only a servant. Ashok Kumar Jain filed another revision application, which was allowed by the Additional Sessions Judge, setting aside the order of the City Magistrate.
Finding of the Court:
The Court held that the Additional Sessions Judge had jurisdiction to set aside the order of the City Magistrate, as the provisions of Section 145 of the Code of Criminal Procedure could not be invoked in the light of the facts of the case. The Court further held that the attachment of the property by means of sealing the shop was not called for, as there was no dispute which was likely to result in imminent breach of peace. The Court also held that the revisional Court has the power to interfere where the lower Court has recorded findings without consideration of the material evidence on record.
Issues: 1. Whether the Additional Sessions Judge had jurisdiction to set aside the order of the City Magistrate. 2. Whether the attachment of the property was justified. 3. Whether the revisional Court has the power to interfere with the findings of the lower Court.
Ratio Decidendi: 1. The Court held that the Additional Sessions Judge had jurisdiction to set aside the order of the City Magistrate, as the provisions of Section 145 of the Code of Criminal Procedure could not be invoked in the light of the facts of the case. The Court relied on the fact that Ashok Kumar Jain had been in actual physical possession of the shop for 12 years prior to the passing of the preliminary order under Section 145, and that there was no dispute which was likely to result in imminent breach of peace. 2. The Court held that the attachment of the property by means of sealing the shop was not called for, as there was no dispute which was likely to result in imminent breach of peace. The Court relied on the fact that the police report did not disclose a dispute and emergency to attach the property. 3. The Court held that the revisional Court has the power to interfere where the lower Court has recorded findings without consideration of the material evidence on record. The Court relied on the fact that the City Magistrate had failed to consider the evidence of Ashok Kumar Jain.
Final Decision: The Court dismissed the petition under Section 482 of the Code of Criminal Procedure and upheld the order of the Additional Sessions Judge setting aside the order of the City Magistrate.
( 1 ) THIS is a petition under Section 482 of the Code of Criminal Procedure with the prayer that the order dated 8-4-1997, Annexure 15 of the petition, passed by Sri Swatantra Singh, the then VIth Additional District and Sessions Judge, Aligarh in revision No. 118 of 1997 - Ashok Kumar Jain v. State of U. P. and others setting aside the order dated 27-1-1997 passed by the City Magistrate Aligarh - Opposite Party No. 2 in proceeding under Section 145 of the Code, be quashed.
( 2 ) COUNTER and rejoinder affidavits have been exchanged. Heard Sri Anand Kumar Gupta for the petitioner and Sri Viresh Mishra for opposite party No. 3 - Ashok Kumar Jain as well as learned standing counsel on behalf of the opposite party Nos. 1 and 2.
( 3 ) SHORN of all superfluities, the case of the petitioner is that there is a shop No. 7/4, Railway Road, Abdul Karim Crossing, Aligarh of which S/sri Arvind Kumar and Manoj Kumar are owners - landlords. It is alleged that the petitioner Ramesh Chandra Saxena was inducted as tenant in the said shop in the year 1954. Sri Saxena was employed in the Life Insurance Corporation of India and, therefore, he had certain difficulties in doing business at the shop. His father, Bhagwat Swarup looked after the business and after his death in 1965, Smt. Nirmal Saxena wife of the petitioner used to sit on the shop to carry on the business in the name and style of nirmal Cut Piece. Ashok Kumar Jain - opposite party No. 3 is the real brother of one Anand Kumar Jain who happens to be the colleague of the petitioner in Life Insurance Corporation of India. Ashok Kumar Jain was appointed as a Salesman on the shop in the year 1980 and a document dated 22-1-1980, which is contained in Annexure 1 to the affidavit, was executed, whereby Ashok Kumar Jain had undertaken to work as a salesman is lieu of share of 25% of the monthly profit and that he would place the keys of the shop every evening at the residence of the petitioner. In the year 1991-92 the petitioner fell seriously ill and was admitted in the hospital. The wife of the petitioner could not attend the shop regularly as she was busy in attending the petitioner. Ashok Kumar Jain was directed to look after the business of the shop and when the wife of the petitioner went to the shop after the petitioner came back from hospital, Ashok Kumar Jain did not allow her to enter the shop with the result a dispute about the possession of the shop arose and the local police of police station Delhi Gate, Aligarh submitted a report before the City Magistrate, Aligarh on 21-4-1992 for initiating action under Section 145, Cr. P. C. A preliminary order was passed by the City Magistrate opposite party No. 2 on 22-4-1992 and on the report of the local police of the same date, it was ordered that the shop be sealed and consequently four locks which existed on the shutter of the shop, were sealed.
( 4 ) ASHOK Kumar Jain opposite party No. 3 filed an application before the City Magistrate on 24-4-1992 (which is contained in Annexure 10 to the affidavit to the petition) with the prayer that the proceedings under Section 145, Cr. P. C. be dropped. The petitioner also filed an objection against the application of Ashok Kumar Jain. The City Magistrate, vide order dated 28/05/1992, Annexure 12, to the affidavit to the petition, rejected the application of Ashok Kumar Jain. In the meantime, Ashok Kumar Jain had filed Civil Suit No. 681 of 1991 in the Court of Munsif Koli, a copy of the plaint being Annexure 9 to the affidavit to the petition. It was observed by the City Magistrate in his order dated 28-5-1992 that the order passed in the civil suit is of no consequence and the question of possession shall be decided evidence of the parties. Ashok Kumar Jain filed revision application No. 282 of 1992 against the initial order dated 22-4-1992 passed under Section 145, Cr. P. C. as well as another revision application No. 291 of 1992 against the order dated 28-5-1992 passsed by the Cit
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