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IN THE HIGH COURT OF ALLAHABAD
DEV KANT TRIVEDI
MAHABIRJI MANDIR COMMITTEE - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. MISC. 369 Of 1991
Decided On : 01/09/1992
CRIMINAL PROCEDURE CODE - SECTION 145 - POSSESSION DISPUTE - JURISDICTION OF MAGISTRATE - CIVIL COURT SEIZED OF THE MATTER - ABUSE OF PROCESS OF LAW - WITHDRAWAL OF SUIT - EFFECT ON PROCEEDINGS UNDER SECTION 145, CR. P. C.
Fact of the Case:
A dispute arose over the possession and management of a temple between two committees, one headed by the petitioner and the other by the opposite party. The opposite party filed an application before the Magistrate under Section 145, Cr. P. C., alleging that the petitioner's committee was misusing the temple's funds and accounts. The Magistrate, after considering the police report and the application, passed an order under Section 145(1), Cr. P. C., directing the parties to file written statements of their respective claims. The Magistrate also passed an order under Section 146, Cr. P. C., attaching the temple and appointing a receiver.
Finding of the Court:
The Court held that the Magistrate had no jurisdiction to initiate proceedings under Section 145, Cr. P. C., as the petitioner's committee was in possession of the temple and there was no dispute about possession. The Court further held that the Magistrate should not have initiated proceedings under Section 145, Cr. P. C., as the matter was already seized by the Civil Court. The Court also held that the withdrawal of the suit by the opposite party did not validate the proceedings under Section 145, Cr. P. C., as the question of possession was not in dispute at the time of initiation of the proceedings.
Issues: 1. Whether the Magistrate had jurisdiction to initiate proceedings under Section 145, Cr. P. C., when the petitioner's committee was in possession of the temple and there was no dispute about possession? 2. Whether the Magistrate should have initiated proceedings under Section 145, Cr. P. C., when the matter was already seized by the Civil Court? 3. Whether the withdrawal of the suit by the opposite party validated the proceedings under Section 145, Cr. P. C.?
Ratio Decidendi: 1. The jurisdiction of the Magistrate to initiate proceedings under Section 145, Cr. P. C., arises only when there is a dispute about actual possession of any immovable property which is likely to lead to a breach of the peace. 2. The Magistrate should not initiate proceedings under Section 145, Cr. P. C., if the question of possession is not in dispute or if the matter is already seized by the Civil Court. 3. The withdrawal of a suit by the plaintiff does not validate the proceedings under Section 145, Cr. P. C., if the question of possession was not in dispute at the time of initiation of the proceedings.
Final Decision: The Court allowed the petition and quashed the impugned orders passed by the Magistrate under Sections 145(1) and 146, Cr. P. C. The Court also quashed the proceedings pending before the Magistrate under Section 145, Cr. P. C.
( 1 ) SRI Mahabirji Mandir Committee, Aminabad Park, Lucknow, through its General Secretary Ashok Kumar Pathak, Petitioner through this petition under Section 482, Cr. P. C. initiated against him vide Annexure 3 on the ground that the Magistrate had no jurisdiction to initiate the proceedings under Section 145, Cr. P. C. specially when the fact of possession of the petitioner was not disputed and further that the Civil Court being seized of the matter to resort to these proceedings was not justified and is abuse of the process of law.
( 2 ) THE brief facts of the case as disclosed in the application moved by opposite party No. 2 Devendra Lal Shah before the Magistrate contained in Annexure 3 are that the temple known as Mahabirji Temple is an old temple and it was being managed by a committee of respectable persons. It is also alleged that the petitioner Ashok Kumar Pathak had constituted a certain committee and the question of validity of the said committee has been challenged before the Registrar of Societies which is still pending before the Registrar. It is alleged that Pathak family has been using the temple as their property and no proper accounts are being maintained. It is further alleged that the offerings on the deities are being taken by Ashok Pathak for his personal use. From the perusal of this application it appears that the petitioner Committee is in possession of the Mandir but they are misusing the accounts. On this application a police report was called by the City Magistrate, Lucknow. The police submitted its report on 4-7-1991 and according to the police report also Pathak family are using the Mandir premises and they have got their committee registered. The Police further pointed out in its report that on 2-7-1991 one Bachanu Sonker was killed in the Mandir premises over a dispute relating to the recovery of rents of its shops. According to the Police the petitioner committee is illegal and there is dispute between the petitioner committee as well as the committee headed by one Mitra Sen. On receipt of this police report the City Magistrate, Lucknow, passed an order under Section 145 (1), Cr. P. C. holding that there existed a dispute about possession of the temple and the offerings and income from the shops. In the said order notices were directed to be issued and the next date was fixed as 22-7-1991. The order passed by the City Magistrate is contained in Annexure 1. It appears that the police again on 7-7-1991 submitted a report that one Raj Kumar Sonkar was killed on 2-7-1991 in front of the Mahabirji temple. The Police further pointed out that this murder was committed because there was a dispute about the ownership of the temple. The police, therefore, made a request that the temple be attached under Section 146, Cr. P. C. to prevent breach of the peace. The Magistrate on receipt of this report passed an order under Section 146, Cr. P. C. attaching the temple and appointing Tahsildar Sadar as Receiver of the temple. The order dated 7-7-1991 is Annexure 2 to this petition. The petitioner on coming to know of this order challenged the order dated 4-7-1991 and 7-7-1991 contained in Annexures 1 and 2 and further prayed for quashing of these proceedings on the ground that the Magistrate committed an error in passing the order under Section 145 (1), Cr. P. C. and thereafter the order under Section 146, Cr. P. C. attaching the temple and appointing Tahsildar as receiver of the temple.
( 3 ) THE main ground of attack is that from the perusal of the application moved for initiating the proceedings under Section 145, Cr. P. C. by opposite party No. 2 itself shows possession of the petitioner committee which was a registered society, therefore, there is no dispute about possession of the temple, The learned counsel further pointed out that admittedly Civil Suit No. 12 of 1991 is pending before the Civil Judge, Lucknow for declaration and injunction, therefore the Magistrate was not justifie
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