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IN THE HIGH COURT OF ALLAHABAD
UMESH CHANDRA SHARMA, J.
Rajkeshwar – Appellant
Versus
State of U.P. and Others – Respondents
Criminal Revision No. 1738 of 2013
Decided On : 19-04-2023
Criminal Procedure Code, 1973 - Section 145, (1), 146, (1), 107 - Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 - Section 176 - Order of SDM - Share in property - Possession of property - Breach of peace - Being aggrieved from order of SDM, revision petition has been preferred – Both orders under Sections 145 and 146 Cr.P.C. have been passed simultaneously and on same day which is against provisions of law. [Para 13]
Finding of the Court: No report had been transmitted by SHO, Police Station Kone to learned SDM that there was any apprehension of breach of peace but rather learned SDM himself directed SO, Kone after getting report from opposite party no. 3 for sending report for taking action under Sections 145 and 146 Cr.P.C. which is against provisions of law - Thus, it transpires that since superior officer had directed SHO to send a positive report, hence concerned report had been sent by SHO, Kone upon which SDM passed the impugned order - When a Court's interim stay order was already into existence, same could be complied with in due course of law by Revenue Court and there was no occasion for SDM to exercise duty under Code of Criminal Procedure - Though it has also come to knowledge that both parties had lodged FIR against each other and parties would have been enlarged on bail on certain conditions, hence it does not look any possibility of breach of peace again in near future - It is also noteworthy that both orders under Sections 145 and 146 Cr.P.C. have been passed simultaneously and on same day, which is against provisions of law - It appears that SDM had already made up mind to pass impugned order, hence both orders were passed together by learned SDM without affording opportunity to revisionists - Court is of considered conclusion that impugned order is not liable to be sustained.
Result: Revision allowed.
JUDGMENT :
UMESH CHANDRA SHARMA, J.
1. Heard Mr. Ganesh, learned counsel for the revisionist and learned Additional Government Advocate. None appeared from the side of opposite party no. 2 to argue the case. Perused the material available on record.
2. This criminal revision has been preferred against the order passed by opposite party no. 2/Sub-Divisional Magistrate, Robertsganj, District Sonbhadra dated 02.05.2013 in Case No. 39 of 2013 (Smt. Prema Devi vs. Rajkeshwar Yadav), under Section 145 Cr.P.C. Police Station Kone, District Sonbhadra whereby the land being Araji Nos. 4, 5, 11, 15, 313, 721 722, 749, 767/1 and 267/202 total 11 gata area 1.0.912 hectare had been attached under section 146 (1) Cr.P.C.
3. The facts in brief of the case are that on the report of Station House Officer, Police Station Kone that there was breach of peace with regard to the aforesaid plot numbers and there was essentiality of attachment of the aforesaid plots under Section 146(1) Cr.P.C. the Sub-divisional Magistrate convinced with the report of the concerned SHO attached the aforesaid plots under Section 146(1) Cr.P.C. vide order dated 02.05.2013. Before passing the impugned order, a preliminary order under Section 145(1) Cr.P.C. had also been passed by the concerned SDM. Being aggrieved from the order of the SDM, this revision petition has been preferred.
4. Facts of the case are that Prema Devi opposite party no. 3 moved an application under Section 145 Cr.P.C. before the concerned SDM stating that respondent no. 7, Jag Narayan (now deceased) son of Tulsi had 1/5th share in property in question which was also in his use and occupation, was, later on, purchased by Prema Devi and her name had also been mutated in the revenue records. Opposite party nos. 2 to 5, 7 and 8 are the real tenure holder and respondent no. 1-Rajkeshwar is also recorded cotenure holder after execution of sale deed from Satya Narayan and Raj Narayan son of Tulsi. Respondent nos. 6 and 9 purchased the shares through sale deed from Shiv Prasad father of respondent no. 8 and respondent nos. 2 to 5 respectively and have become co-tenure holder. Gata no. 773(ka) is a valuable property on the main pitch road of Kone to Telgudwa Road in which all the brothers and the purchasers have the share and title.
5. On the basis of money and muscle power opposite party no. 1 tried to occupy the part of land adjoining to the road since month of June, 2011 after purchasing the land from two sons of Tulsi. A case for partition had also been filed by Prema Devi in which an interim stay order has also been passed but opposite party no. 1 is adamant to change the nature of property in question in any manner and on the request, not to do so, he is adamant to commit offence and cause injury to her and her family members, hence if the property in question is not attached, an untoward incident might be occurred at any time.
6. The application was considered by the Sub-Divisional Magistrate and SHO, Kone, Sonbhadra was directed to send a report for attachment of the property in question under Sections 145/146 Cr.P.C. The report was submitted by concerned SHO and thereafter, the impugned order had been passed by the SDM, which is under challenge before this Court.
7. In this revision, the Revisionist has taken ground that the police report clearly indicates that the revisionist is in possession of the property in question, hence no order for its attachment could be passed. The order under Section 145(1) Cr.P.C. and the order under Section 146(1) Cr.P.C. have been passed on the same day i.e. 02.05.2013 thus the order under Section 145(1) is wholly illegal and without jurisdiction. The impugned order is an ex-parte order without awaiting the written statement. In Suit No. 235 of 20211, under Section 176 of the UPZA & LR Act, order to maintain status quo has also been passed on 26.04.2011. Actually, there was no circumstance existing in which aforesaid order could be passed concluding any emergency. Both the
Property which in joint possession is outside ambit of Section 145 Cr.P.C. Magistrate cannot decide question of joint possession.
Point of Law : Section 145 of Code concerned with restoration of possession and prevention of breach of peace and tranquillity.
An order of attachment under Section 146(1) Cr.PC requires proof of likelihood of breach of peace and determination of possession, which was not established in this case.
The court emphasized that attachment orders under emergency provisions must be backed by compelling evidence of imminent danger to public peace, otherwise it constitutes a misuse of legal process.
The main legal point established in the judgment is the importance of preventing breach of peace and the different objectives of the civil court and the Magistrate in cases of possession disputes.
A Magistrate must establish an emergency and consider evidence before issuing an attachment order under Section 146 of the Code of Criminal Procedure; failure to do so invalidates the order.
The Executive Magistrate's findings on possession under Section 145 Cr.P.C. are binding unless proven perverse, and jurisdiction over title disputes lies with civil courts.
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