Proceedings under Section 145, Cr.P.C. do not apply to joint property disputes, and the exercise of power under Section 146(1), Cr.P.C. requires a case of extreme emergency.

Manoj Kumar Gupta, J. –

Heard counsel for the petitioner.

2. The petitioner aggrieved by order dated 26.8.2015 passed by the Additional District and Sessions Judge, Court no.1, Ghazipur in Criminal Revision no.200 of 2014 has approached this Court challenging its validity. By the said order, the revisional court has set aside the order of attachment dated 6.6.2014 passed by the Sub Divisional Magistrate under section 146(1), Cr.P.C. in case no. 24 of 2013. The revisional court has held that from the material on record, it is evident that the dispute between the parties relate to the land of which, they are joint tenure holders. The revisional court has referred to the police report paper no. 4-A, wherein, it is mentioned that the land in dispute is being cultivated by the second party to the proceedings, namely, the third respondent herein. The petitioner was trying to take possession of his share, which had given rise to apprehension of breach of peace. In the opinion of the revisional court, once possession of second party is admitted in the police report, it was not within the purview of the learned Magistrate to initiate proceedings under section 145 Cr.P.C. or to pass order of attachment. For coming to such conclusion, the revisional court has placed reliance on decision of Supreme Court in case of Ashok Kumar v. State of Uttarakhand, 2013 (80) ACC 599 (SC) : 2013 (122) AIC 205, and of this Court in case ofGopal and others v. State of U.P. and others, 2001 (43) ACC 496 (HC) wherein it is held as under : -

"Proceeding under Section 145 , Cr.P.C. do not contemplate cases of joint property or joint holding or joint possession. In case of joint property proceeding under Section 145 , Cr.P.C. can be drawn only where a co-owner claims his actual possession over a specified portion of joint property to the exclusion of other co-tenure holders. The Magistrate had no power or jurisdiction to put the parties in possession as per their shares in the disputed property."

3. It is not disputed by learned counsel for the petitioner that the parties are co-tenure holders of the land in question. However, it is submitted by learned counsel for the petitioner that the petitioner was in exclusive possession of the land and thus, the aforesaid decision in the case of Gopal and others (supra) would not apply to the facts of the case. It is further submitted that the learned Magistrate in proceedings under section 145 Cr.P.C. is competent to put a party back in possession, in exercise of power conferred by sub section (6). It is thus urged that even if the petitioner had been dispossessed, the learned Magistrate was competent to restore the possession of the petitioner.

4. Concededly, the parties to the dispute are co-tenure holders and the land in dispute is an agricultural holding. The name of both the parties is duly recorded in the revenue record. There is neither any pleading nor any evidence on record that the petitioner was in possession of any specified part of the land in dispute. On the contrary, as police report indicate, the second party was cultivating the land and the petitioner had raised the dispute as he wanted to take possession of his share.

5. Sub-section (6) of section 146 read with proviso to subsection 4 empowers the Magistrate to restore possession in case a party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer is received by the Magistrate, or after that date and before the date of his order under sub-section (1) of section 145 Cr.P.C. In the instant case, it is not even the case of the petitioner that he was covered by the provision to sub-section (4). Thus, contention of the petitioner that even if he was out of possession, his possession could be restored in proceedings under section 145 Cr.P.C. cannot be accepted.

6. The Supreme Court in the case of Ashok Kumar (supra) has held as under : -

"9. The ingredients necessary for passing an orde