Back
1993 Supreme(All) 194
HIGH COURT OF ALLAHABAD
J.P.Samwal
RADHEY MOHAN
Versus
STATE OF U P
Decided On : 29 March 1993
Crl. Misc. Application No. 2644 of 1993
S.C.TRIPATHI,
The inherent powers of the High Court under Section 482 Cr. P. C. can only be invoked in cases where it has resulted in the abuse of process of the court or interference is called for to secure the ends of justice.
Headnote:
CRIMINAL PROCEDURE CODE - Section 482 - Inherent powers of the High Court - Scope and extent - Quashing of orders passed by Magistrate and Sessions Judge in proceedings under Section 145, Cr. P. C. - When permissible.
Fact of the Case:
The applicants moved an application under Section 482 Cr. P. C. for quashing the orders dated 4-11-1982 and 2-3-1983 of the Sub-Divisional Magistrate, Shahganj, District Jaunpur in Criminal Case No 34 of 1982 and the revisional order dated 6-3-1983 passed by the Sessions Judge Jaunpur. The opposite party no. 2, Phenku, moved an application under Section 145, Cr. P. C. accompanied by an affidavit on 19-2-1982 in the court of Sub-divisional Magistrate, Shahganj, Jaunpur regarding Chak no 32 A area 1. 91 acre, and Chank No. 32-B, area 0. 50 decimal, situate in village Nagahati Police Station Sarai Khurja, district Jaunpur. The Sub-divisional Magistrate Shahganj passed preliminary order under Section 145. Cr. P. C on 4-11-1982 Thereafter, the opposite party no. 2 moved an application on 13-1- 1983 for attachment of the land in question alongwith the standing crops accompanied by an affidavit. The learned Sub-Divisional Magistrate allowed the application, vide his order dated 2-3-1983 and attached the land in dispute alongwith the standing crops, the certified copies whereof have been filed by the application as Annexures A-1 and A-2. Thereafter, the applicants filed revision against the said order of attachment under Section 146 (1) Cr. P. C which was dismissed by the Sessions Judge, Jaunpur, vide his order dated 8-3-1983 the certified copy whereof has been filed as Annexure A-3 by the applicants.
Finding of the Court:
The Court held that the impugned orders passed by the Magistrate and the Sessions Judge were not illegal or without jurisdiction. The Magistrate had passed the impugned order on the basis of material indicating that there was apprehension of breach of peace and the revisional court had passed the impugned order by following a subsequent Division Bench ruling of this Court which followed the proposition of law laid down by the Supreme Court and in which earlier Division Bench ruling was elaborately considered. The proceedings had not been terminated by the impugned attachment order and there was no legal bar to the continuance of the proceeding under Section 145, Cr. P. C. before the learned Magistrate. Hence, there was neither any illegality, nor abuse of process of the court, nor the quashing of impugned orders was necessary for securing the ends of justice.
Issues: Whether the High Court can interfere with the orders passed by the Magistrate and the Sessions Judge in proceedings under Section 145, Cr. P. C. by exercising its inherent powers under Section 482 Cr. P. C.
Ratio Decidendi: The High Court can interfere with the orders passed by the Magistrate and the Sessions Judge in proceedings under Section 145, Cr. P. C. by exercising its inherent powers under Section 482 Cr. P. C. only in cases where it has resulted in the abuse of process of the court or interference is called for to secure the ends of justice.
Final Decision: The application under Section 482 Cr. P. C. was dismissed.
The applicants have moved this application under Sec tion 482 Cr. P. C. for quashing the orders dated 4- 11-1982 and 2-3-1983of the Sub-Divisional Magistrate, Shahganj, District Jaunpur in Criminal Case No 34 of 1982 and the revisional order dated 6-3-1983 passed by the Sessions Judge Jaunpur.
2. The facts leading to these proceedings under Section 482 Cr P C may be summarised in brief as follows.
3 The opposite party no. 2, Phenku, moved an application under Sec tion 145, Cr. P. C. accompanied by an affidavit on 19-2-1982 in the court of Sub-divisional Magistrate, Shahganj, Jaunpur regarding Chak no
32 A area 1. 91 acre, and Chank No. 32-B, area 0. 50 decimal, situate in village Nagahati Police Station Sarai Khurja, district Jaunpur. The Sub-divisional Magistrate Shahganj passed preliminary order under Section 145. Cr. P. C on 4-11-1982 Thereafter, the opposite party no. 2 moved an application on 13-1- 1983 for attachment of the land in question alongwith the standing crops accompanied by an affidavit. The learned Sub-Divisional Magistrate allowed the application, vide his order dated 2-3-1983 and attached the land in dispute alongwith the standing crops, the certified copies whereof have been filed by the application as Annexures A-1 and A-2. Thereafter, the applicants filed revision against the said order of attachment under Section 146 (1) Cr. P. C which was dismissed by the Sessions Judge, Jaunpur, vide his order dated 8-3-1983 the certified copy whereof has been filed as Annexure A-3 by the applicants.
4. In the application under Section 482, Cr. P. C. , the applicants claim to have purchased the disputed land from one Smt. Dhanpatti Devi, who was allotted a chak during the consolidation operation, by a registered sale-deed dated. 14-4-1975 and claim to have been in actual physical and cultivatory possession of the same since then. It is alleged that the Sub-Divisional Magis trate was not satisfied as to the existence of breach of peace and the police did not report about the existence of breach of peace. The applicants dis puted the existence of breach of peace but the learned Magistrate without applying his mind, passed a preliminary order solely on the ground that the petitioners had not filed any affidavit in rebuttal. The revisional court rejected the revision on the ground that the revision did not lie against the order of attachment under Section 146 (1) Cr. P. C. It is contended that the orders passed by the courts below are manifestly erroneous and grossly unjust and the petitioners have no remedy except to invoke the inherent jurisdiction of this Court under Section 482, Cr. P. C.
5. I have heard learned counsel for the parties at considerable length and have perused the record of the case. As regards the contention that the Sub-Divisional Magistrate passed the preliminary order dated 4-11-1982 under Section 145 Cr. P. C. without applying his mind and without satisfaction about the existence of breach of peace, this was not agitated before me. It is relevant to point out here that the impugned order dated 4-11-1982 clearly indicates that the Magistrate concerned perused the record including the affidavit of the opposite party no. 2, Phenku, in which he clearly stated about the exis tence of breach of peace, which was not rebutted by any conter-affidavit by the petitioners and applied his mind before passing the said impugned order dated 4-11-1982. It cannot, therefore, be said that the order of the Magistrate was passed without any material indicating that there was any apprehension of the breach of peace. The order of attachment under Section 146 (i) Cr. P. C. was passed by the Magistrate concerned subsequently on 2-3-1983 after analysing and considering the contentions raised before him The applicants went up in revision against the said order of attachment, which was dismissed by the Sessions Judge, Jaunpur, vide his order dated 8-3-1983.
6. Sri S. C. Tripathi, learned counsel for the applica
