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IN THE HIGH COURT OF ALLAHABAD
JYOTSNA SHARMA, J.
Rajeshwar Singh – Petitioner
Versus
State of U.P. and Others – Respondents
Criminal Misc. Writ Petition No. 5637 of 2006
Decided On : 13-05-2024
CRIMINAL LAW - PROCEEDINGS UNDER SECTION 145 CR.P.C. - Criminal Procedure Code, Section 145(7) - The court discussed the provisions of Section 145(7) of the Criminal Procedure Code, which allows for the continuation of proceedings under Section 145 in the event of a party's death by substituting legal representatives. The court emphasized that the purpose of these proceedings is to prevent breaches of peace and that the magistrate must allow for the substitution of legal representatives without determining the actual heirs. The court found that the lower courts failed to apply this provision correctly, leading to an unjust decision that favored one party without considering the rights of the other heirs.
Fact of the Case:
The petitioner, Rajeshwar Singh, challenged orders from the S.D.M. and the Addl. Sessions Judge that released disputed property in favor of his uncle Tejbali, following a long-standing family dispute over inheritance stemming from a proceeding initiated by their grandfather Parmanand under Section 145 Cr.P.C. The petitioner argued that he was entitled to a share of the property as the son of Dayaram, Parmanand's deceased son, and that the proceedings were improperly conducted without his involvement.
Finding of the Court:
The court found that the lower courts erred in their interpretation of Section 145(7) Cr.P.C. by failing to recognize the petitioner's right to be included in the proceedings as a legal representative of his deceased father. The court emphasized that the proceedings should have continued to prevent a breach of peace, and that the S.D.M. had a duty to substitute legal representatives in the case of a party's death.
Issues: Whether the petitioner had the right to challenge the orders regarding the disputed property despite not being a party to the original proceedings, and whether the lower courts correctly applied the provisions of Section 145(7) Cr.P.C. regarding the substitution of legal representatives.
Ratio Decidendi: The court held that the provisions of Section 145(7) Cr.P.C. mandate that legal representatives of a deceased party must be substituted to continue proceedings, and that the magistrate is not to decide on the actual heirs but to ensure that all parties claiming to be representatives are included. The court clarified that the purpose of these proceedings is to maintain peace and order, and that the failure to include the petitioner constituted a significant legal error.
Final Decision: The court set aside the impugned orders dated 03.01.2006 and 06.03.2006, remanding the matter to the lower court for fresh consideration in light of the observations made, including the necessity of substituting legal representatives and assessing the desirability of continuing the proceedings under Section 145 Cr.P.C.
JUDGMENT :
JYOTSNA SHARMA, J.
1. Heard Sri Ram Lakhan Deobanshi and Sri Shailendra Kumar Singh, learned counsels for the petitioner, Sri Anil Kumar Mishra, learned counsel for private respondent no. 4 and Sri R.K. Gupta, learned A.G.A. for the State.
2. Written submissions/arguments filed on behalf of the petitioner and the private respondent no. 4, are taken on record.
3. This criminal miscellaneous writ petition has been filed by petitioner Rajeshwar Singh against respondent no. 4 Tez Bali and three others with a prayer as below:
4. The facts relevant for the controversy are:
(ii) A criminal reference no. 13 of 1973 was made to the civil court, under section 146 Cr.P.C. and the civil court passed an order dated 03.05.1974, holding that grandfather of the petitioner, late Parmanand has been in possession over the plots in question, on the date of passing of preliminary order. Challenging the aforesaid order of 03.05.1974, the respondent no. 4 Tejbali s/o Parmanand preferred a writ petition before this Court.
(iii) During the pendency of aforesaid writ petition Parmanand died therefore, the writ petition no. 2690 of 1974 was dismissed on 20.11.1996 and interim order was discharged.
(iv) In aforesaid order, the High Court made it clear that it will be open to the petitioner to raise a question about the desirability of continuing the proceeding under section 145 Cr.P.C., before the Magistrate concerned.
(v) Respondent no. 4-Tejbali filed an application before the S.D.M., with a prayer that the disputed property may be released in his favour till the mutation proceeding pending before the Commissioner, Varanasi gets decided.
(vi) The instant petitioner Rajeshwar Singh objected to aforesaid application filed by Tejbali, submitting that at the time when proceeding under section 145 Cr.P.C. was initiated, his father Dayaram and grandfather Parmanand were in possession and therefore after their death, the property had come into his possession.
(vii) The court of S.D.M. Marihan, Mirzapur, by its order dated 11.04.2001, de-attached the disputed property and released the same in favour of Tejbali and the petitioner s/o Lt. Dayaram, subject to final decision by Addl. Commissioner, Varanasi Zone and dropped the proceeding under section 145 Cr.P.C.
(viii) The instant petitioner as well as the instant respondent no. 4 challenged the aforesaid order (dated 11.04.2001) by filing two separate criminal revisions i.e. criminal revision no. 142 of 2001 by the petitioner and criminal revision no. 98 of 2001 by the respondent no. 4.
(ix) Both the revisions were decided by a common order dated 16.07.2004, observing that only civil court could have decided the fact as to who were the heirs of the deceased, therefore, the order of the Magistrate deciding shares of the parties and releasing the disputed property in their favour, is an order passed beyond jurisdiction. The order was set aside and matter was remanded for decision afresh.
(x) The S.D.M. passed a fresh order on 03.01.2006, whereby he set aside the attachment, dropped the proceeding under section 145 Cr.P.C. and released the property in favour of respondent no. 4-Tejbali.
(xi) Challenging the aforesaid order passed by the S.D.M., the petitioner filed a criminal revision no. 15 of 2006, which was rejected by Addl. Sessions Judge, Mirzapur vide its order dated 06.03.2006. Now, the petitioner is before this Court invoking writ jurisdiction, challenging the two orders dated 03.01.2006 and 06.03.2006.
5. The ground
The court established that under Section 145(7) Cr.P.C., the proceedings must continue with the substitution of legal representatives upon the death of a party, emphasizing the importance of maintain....
Proceedings under Section 145 of Cr.P.C. are applicable only to disputes regarding possession and likelihood of breach of peace, not disputes over title. The Executive Magistrate can only decide actu....
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.
The judgment emphasizes the limited scope of enquiry under section 145 Cr.P.C., focusing on de-facto possession and the applicability of section 146(1) Cr.P.C. in cases of emergency or when the Magis....
Executive Magistrates cannot initiate proceedings under Section 145 Cr.PC if a civil suit related to the same property is ongoing, as it encroaches on civil jurisdiction without established emergency....
The proceedings under Section 145 of the Code of Criminal Procedure are intended to maintain public order and do not adjudicate property title, focusing instead on actual possession to prevent breach....
The main legal point established in the judgment is the avoidance of multiplicity of litigation and the need to abide by the final outcome of the civil suit in the context of applying Section 145 Cr.....
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