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2020 Supreme(All) 1262
IN THE HIGH COURT OF ALLAHABAD
Om Prakash-VII, J.
Mrityunjay Singh - Appellants
Vs.
State of U.P. and Ors.- Respondent
Criminal Revision No. 1339 of 2017 and Application U/S 482 No. 8070 of 2017
Decided On : 26-02-2020
For the Appellant Subhash Chandra Yadav and Hemendra Pratap Singh
For the Respondents: G.A. and Sunil Kumar Tiwari
Headnote:
Criminal Procedure Code - Sections 145, 146 – Quash of order - Competent authority to invoke jurisdiction - Possession of disputed land - Matters are listed under heading For orders but on request of learned counsel appearing for parties matters are being decided finally at this stage itself - Learned counsel appearing for revisionist applicant learned counsel appearing for opposite party and learned A.G.A - Submission of learned counsel for revisionist applicant is that revisionist purchased disputed property from its owner and was in continuous possession over it by constructing house - There was no dispute regarding possession over disputed land - When prices of plot escalated opposite party moved applications before several authorities on basis of false facts – Held, Criminal Revision is concerned there is no dispute that a civil suit is pending between parties for same subject matter for which proceedings under Section 145 Criminal Procedure Code is also pending - It is also clear from record that no interim order has been granted in civil suit - Opposite party moved application before competent authority to invoke jurisdiction under Section 145 Criminal Procedure Code as there is dispute between parties regarding possession over disputed plot - It is also evident from record that on enquiry made by Superintendent of Police concerned possession of revisionist was found over disputed plot but in report submitted by Commissioner in aforesaid suit opposite party was shown to be in possession of disputed plot - Concerned Magistrate while passing impugned order has observed that there is apprehension of breach of peace between parties regarding possession of disputed land - It was also observed that although there is civil suit pending between parties but no interim relief has been granted in favor of either of parties - If observations recorded by concerned Magistrate in impugned order are compared with facts and evidence available on record in consonance with law laid down in case laws relied upon by learned counsel appearing for revisionist no illegality infirmity or perversity is found in impugned order - It is clarified that proceedings under Section 145 Criminal Procedure Code could continue pending civil litigation - Only limitation is that if interim order has been granted in civil suit regarding possession in favor of either of parties proceedings under Section 145 Criminal Procedure Code could not continue - It is also clarified that as soon as any interim order is granted in civil suit pending between parties regarding possession proceeding started under Section 145 & 146 Criminal Procedure Code will be subject to order of civil court – Revision is allowed
ORDER :
Om Prakash-VII, J.
1. Present Criminal Revision has been filed with the prayer to allow the revision and to set aside the order dated 28.02.2017 by the court of Additional City Magistrate-III, Agra in case No. 1 of 2016 (Computer Case No. 201601108415) (State Vs. Bhupendra Singh and another), under Sections 145, 146 Cr.P.C., Police Station Jagdishpura, district Agra and subsequent seizure memo dated 12.04.2017 of Station House Officer Police Station Jagdishpura, Agra. Further prayer has been made to direct the opposite party No. 2 to open the seal of the residential house of the revisionist and permit him to live therein peacefully.
2. Application U/S. 482 Cr.P.C. has been filed with the prayer to quash the impugned order dated 28.02.2017 passed by the court of Additional City Magistrate-III, Agra in case No. 1 of 2016 (Computer Case No. 201601108415) State Vs. Bhupendra Singh and another, under Section 145 Cr.P.C., Police Station Jagdishpura, district Agra. Further prayer has been made to stay the effect and operation of the impugned order passed in the aforesaid case with the direction to the appropriate authority not to dispossess the applicant from his dwelling/disputed property and allow him to stay peacefully.
3. Although both the matters are listed under the heading "For orders" but on the request of learned counsel appearing for the parties matters are being decided finally at this stage itself.
4. Heard Sri Subhash Chandra Yadav, learned counsel appearing for the revisionist/applicant, Sri Sunil Kumar Tiwari, learned counsel appearing for the opposite party No. 3 and learned A.G.A.
5. Submission of learned counsel for the revisionist/applicant is that revisionist purchased the disputed property from its owner and was in continuous possession over it by constructing house. There was no dispute regarding possession over the disputed land. When prices of the plot escalated, opposite party No. 3 moved applications before several authorities on the basis of false facts. Initially enquiry was made on the direction of the Superintendent of Police concerned but entire allegations levelled against the revisionist/applicant was found false and specific observation was given in that report that opposite party No. 3 is trying to extract money from the revisionist with dishonest intention and due to that reason he is moving applications. It is also argued that no suit for cancellation of the said sale deed has been filed. Revisionist has obtained loan on the said sale deed. Until and unless the sale deed in question is cancelled, revisionist/applicant cannot be deprived from the fruits of the sale deed. It is also argued that specific report has also been given in the seizure memo prepared by the local police in compliance of the order passed under Section 146(1) Cr.P.C. showing the rooms constructed over the disputed plot belonging to the revisionist. Referring to the documents annexed with the revision it is also argued that house in question was constructed by the revisionist and was in possession over it. This fact has not been considered by the concerned Magistrate while passing the order under Section 146(1) Cr.P.C. There was no emergency (urgency) and possession over the disputed plot was also clear in favour of the revisionist/applicant. Thus, none of the ingredients to exercise the power given under Section 146(1) Cr.P.C. were available in the present matter. It is further argued that earlier application under Section 482 Cr.P.C. challenging the order under challenge in the Criminal Revision had been filed but present Criminal Revision was filed challenging the attachment order as well as seizure order made by the police in compliance thereof. It is also argued that Application U/S. 482 Cr.P.C. be dismissed as not pressed.
6. To substantiate the submissions, learned counsel appearing for the revisionist/applicant placed reliance on the following case laws:
1. Ashok Kumar Vs. State Uttarakhand reported in (2013) 3 SCC 366
