Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 1295

IN THE HIGH COURT OF ALLAHABAD
Jyotsna Sharma, J.
Mahant Govind Sharan Ji Maharaj – Petitioner
Versus
State Of U.P. And Others – Respondents
Criminal misc. Writ petition No. 15890 of 2013
Decided On : 12-10-2023

Advocates:
Advocate Appeared:
For the Petitioner: Atul Sharma, A.K. Sharma, Rajeev Misra
For the Respondent: Anurag Pathak, Vageesh Pandey, Yogeesh Pandey

The proceeding under section 145 Cr.P.C. can be maintained even when a civil suit is pending, especially if there is an apprehension of breach of peace and no effective order is in existence or has already been passed by the civil court. The Magistrate's jurisdiction under section 145 Cr.P.C. is aimed at upholding the rights of the society at large to have peace in the area.

Headnote:
Possession - Section 145 Cr.P.C. - [FACT OF THE CASE] The petitioner filed a writ petition challenging the order dated 25.07.2013 passed by the Sessions Judge, Mathura in Criminal Revision No. 384 of 2012. The petitioner claimed that the impugned order was without jurisdiction, illegal, unjust, and arbitrary as the civil suit was pending, and the proceeding under section 145 Cr.P.C. was not maintainable. The respondent no. 3 argued that the proceeding under section 145 Cr.P.C. should have continued as no effective order of the civil court regarding possession was passed. [FINDING OF THE COURT] The court analyzed various judgments and held that the proceeding under section 145 Cr.P.C. can be maintained even when a civil suit is pending, especially if there is an apprehension of breach of peace and no effective order is in existence or has already been passed by the civil court. The court also noted that the Magistrate's jurisdiction under section 145 Cr.P.C. is different from that of a Civil Judge, and the aim of the Magistrate is to maintain peace and tranquillity. The court further directed the respondents not to interfere with the petitioner's possession until the matter is decided by the court. [ISSUES] The main issues involved in the case were the possession of the disputed property, the identification of the property, and the initiation of civil suits for grant of permanent injunction. [RATIO DECIDENDI] The court clarified that the Magistrate's primary duty is to examine the claims of the parties as regards de-facto possession over the subject of dispute and that the Magistrate is empowered to adjudicate the question of de-facto possession and no more. The court also emphasized that the Magistrate's jurisdiction is aimed at upholding the rights of the society at large to have peace in the area. [FINAL DECISION] The court declined the relief sought by the petitioner and directed the respondents not to interfere with the petitioner's possession over the disputed property until the matter is decided by the court concerned. The court also directed the concerned court to expedite the hearing.

JUDGMENT :

1. Heard Sri Atul Sharma, learned counsel for the petitioner, Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Vageesh Pandey, learned counsel for respondent no. 3 and learned AGA for the State.

Written submissions filed on behalf of the petitioner and on behalf of the respondent no. 3, have been taken on record.

2. The petitioner has filed this writ petition under article 226 of the Constitution against the respondents including respondent no. 3-Mahant Shri Lalita Saran Maharaj Deva Charya challenging the order dated 25.07.2013 passed by Sessions Judge, Mathura in Criminal Revision No. 384 of 2012 (Mahant Shri Lalita Saran Maharaj Deva Charya vs. State of U.P. and Others).

3. Following reliefs have been claimed by the petitioner:-

“A. Issue a writ order or direction in the nature of Certiorari quashing the impugned order dated 25.7.2013 passed by respondent No. 2 (Annexed as Annexure No. 18) to this writ petition.

B. Issue a writ order or direction in the nature of Mandamus commanding the respondents not to interfere in the peaceful possession of the petitioner over the Ashram situated at Plot No. 199 (199Ka).

C. Issue any other and further order which this Hon'ble Court may deem fit and proper in the circumstances of the case.”

4. The petitioner submits as below:-

(i) Mahant Shri Lalita Saran Maharaj Deva Charya, disciple of Baba Madhuri Dass, filed Original Suit No. 450 of 2005 (Lalita Sharan vs. Parmeshwar Dass and Others) in the Court of Civil Judge (Senior Division), Mathura for permanent injunction in respect of the property of Van Vihar Ashram, with the averments in nutshell that the plaintiff (Lalita Saran), on the basis of a Will dated 25.04.2005, has been taking care of Van Vihar Ashram, situated at Vrindavan Parikrama Marg, after the death of the testator Garvili Sharan; the defendant have declared that they will dispossess the plaintiff and obtain illegal possession of Ashram property, therefore, they may be restrained from dispossessing the plaintiff.

(ii) During the pendency of the aforesaid Original Suit No. 450 of 2005, the S.H.O., Vrindavan, Mathura submitted a report to the City Magistrate, Mathura regarding Van Vihar Ashram, situated on plot no. 199 (199Ka), for attaching the property, under the provisions of section 145 Cr.P.C. on 20.06.2005. The City Magistrate passed a preliminary order under section 145(1) Cr.P.C., directing the parties to appear and submit their evidence and also passed an order under section 146(1) Cr.P.C. on 27.06.2005, attaching the property and giving its custody to some independent person.

(iii) Subsequently, the City Magistrate heard both the sides and stayed the execution of its own aforesaid order dated 27.06.2005, by which the property was directed to be attached. By this order of 07.07.2005 the court concerned further directed the parties to make their submissions and produce their evidence.

(iv) The respondent no. 3 challenged the aforesaid order dated 07.07.2005, by filing a Criminal Revision No. 394 of 2005. The same was dismissed by the Additional Sessions Judge by order dated 05.12.2005.

(v) The respondent no. 3, therefore filed a Criminal Misc. Application under Section 482 Cr.P.C. No. 130 of 2006, challenging the dismissal of the revision which is still pending.

(vi) The petitioner filed a separate Original Suit No. 328 of 2006 (Mahant Shri Govind Sharan Ji Maharat vs. Lalit Sharan Dass and Others) for a decree of permanent injunction which too is pending in the Court of Civil Judge (Senior Division), Mathura.

(vii) With regard to the disputed property, the S.H.O., Vrindavan, Mathura, submitted another report dated 06.06.2008, before the City Magistrate, Mathura; the City Magistrate, Mathura set aside the order dated 07.07.2005 and further directed the S.H.O. to comply with the order dated 27.06.2005, passed under the provisions of section 146(1) Cr.P.C. This order was passed on 10.06.2008.

(viii) The petitioner preferred a Criminal Revision No. 412 of 2008 challe