The court reaffirmed that ongoing civil disputes limit the Magistrate's authority to intervene in possession matters under Section 145 Cr.P.C.

JUDGMENT :

SUBHASH VIDYARTHI, J.

1. Heard Sri Agendra Sinha, the learned counsel for the applicant and Sri. Rajesh Kumar Singh the learned AGA-I for the State.

2. By means of the instant application filed under Section 528 BNSS , the petitioner has challenged the validity of an order dated 07.09.2015 passed by the Addl. City Magistrate, Lucknow in Miscellaneous Case No.03 of 2015, which was instituted on the basis of the applicant’s application under Section 145 Cr.P.C.

3. It is recorded in the impugned order dated 07.09.2015 that the Kothari in dispute is in possession of the opposite party No.2, there was no breach of peace and the matter related to title dispute which is pending adjudication before the Civil Court. The title can be decided by the Competent Court and the parties should seek relief from the Competent Court only. The Addl. City Magistrate accordingly closed the proceedings.

4. The applicant had challenged the aforesaid order dated 07.09.2015 by filing Criminal Revision no.441 of 2015, which has been dismissed by means of an order dated 22.10.2024 passed by the Learned Addl. District and Session Judge/Spl. Judge, P.C. Act, Court No.7, Lucknow, holding that there is no legal error in the order dated 07.09.2015 passed by the Addl. City Magistrate. The validity of the revisional order has also been challenged by the applicant.

5. Assailing validity of the aforesaid orders, Sri. Agendra Sinha, the learned counsel for the applicant, submitted that the applicant was dispossessed from the Kothari in question in an illegal manner in the night of 25/25.04.2002 and in these circumstances, the Magistrate ought to have restored possession of the property to the petitioner in exercise of the proviso appended to the sub-Section 4 of Section 145 of Cr.P.C.

6. Although a copy of the application under Section 145 Cr.P.C. on which the proceedings were instituted, has not been annexed with the application under Section 482 Cr.P.C., it appears that the applicant claims that he is the owner and is in possession of House No.403/238- 239, Katra Bizenbeg, P.S.- Sahadatganj, Lucknow which consists of several houses under occupation of different tenants and only some portion of the property is in possession of the applicant. Husband of the opposite party No.2 had forcibly taken possession of a Kothari (store room) in the night of 25/26.04.2002 by breaking the lock of the applicant. An FIR in this regard has been lodged on 28.04.2002 and the criminal case instituted thereon is still pending.

7. Pursuant to a police report dated 04.05.2002, proceedings under Section 145 Cr.P.C. were instituted and registered as Case No.71 of 2002. The Tehsildar had submitted a report dated 11.09.2003 in the aforesaid case stating that the applicant was in possession of the disputed premises prior to his unlawful dispossession. The Addl. City Magistrate passed an order dated 26.03.2003 directing restoration of possession of the applicant, subject to any order passed by the competent civil court. However, the order dated 26.09.2003 was set- aside by means of an order dated 29.11.2003 passed by the Addl. District Judge, Lucknow in Crl. Revision No.208 of 2003 on the ground that the Magistrate had not held an inquiry contemplated by Section 145 (4) Cr.P.C. and had not taken any evidence. The matter was remanded to the Magistrate who had decided afresh in accordance with the law.

8. After remand, the Addl. City Magistrate-III, Lucknow passed an order dated 15.09.2004 dropping the proceedings under Section 145 Cr.P.C. on the ground that a civil suit regar