Back
IN THE HIGH COURT OF MADHYA PRADESH
C.V. Sirpurkar, J.
Kaushlendra Kumar Singh And Others - Applicants
Versus
Devendra Kumar Mishra And Another - Respondents
Misc. Cri. C. No. 16355 Of 2013
Decided On : 01-08-2016
Section 146 - Disputed House - 145(1), 146(1) - The court discussed the application of Section 146(1) of the Cr.P.C. and the interpretation of the conditions for attachment of property. The judgment highlighted the distinction between a mere apprehension of breach of peace and a situation of emergency as mentioned under Section 146. The court emphasized the need for a graver situation than mere apprehension of breach of peace to enable the Executive Magistrate to exercise jurisdiction under Section 146. The mechanical exercise of powers under Section 146(1) was deemed unsustainable in the eyes of the law, leading to the setting aside of the orders of the Courts below.
Fact of the Case:
The case involved a dispute over the possession of a disputed house, with one party claiming ownership through a registered sale deed and the other party claiming ownership through a will. The Sub-Divisional Magistrate (SDM) passed an order under Section 146 of the Cr.P.C. for attachment of the property due to a dispute and apprehension of breach of peace.
Finding of the Court:
The Court found that the orders of the Courts below were unsustainable due to the mechanical exercise of powers under Section 146(1) of the Cr.P.C. The matter was remitted back to the SDM for reconsideration of the application under Section 146(1) in light of the court's observations, and the orders of the Courts below were set aside.
Issues: The issues revolved around the possession of the disputed house, the application of Section 146(1) of the Cr.P.C., and the distinction between a mere apprehension of breach of peace and a situation of emergency as mentioned under Section 146.
Ratio Decidendi: The court emphasized the need for a graver situation than mere apprehension of breach of peace to enable the Executive Magistrate to exercise jurisdiction under Section 146. It highlighted the requirement for the SDM to distinguish between a mere apprehension of breach of peace and a situation of emergency before exercising powers under Section 146(1).
Final Decision: The orders of the Courts below were set aside, and the matter was remitted back to the SDM for reconsideration of the application under Section 146(1) of the Cr.P.C. The parties were directed to maintain status-quo with regard to possession of the disputed house until the fresh disposal of the application by the SDM.
C.V. Sirpurkar, J.
1. This miscellaneous criminal case has been instituted on an application under Section 482 of the Cr.P.C. It is directed against the order dated 27.11.2013 passed by the Court of 3rd ASJ, Bhopal in criminal revision no. 538/2013, whereby the order dated 10.09.2013 passed by Sub-Divisional Magistrate, Govindpura, Bhopal under Section 146 Cr.P.C., was affirmed.
2. The facts necessary for disposal of this miscellaneous criminal case may be summarized as hereunder: Respondent No.1 Devendra Kumar Mishra and his wife Smt. Neeva Mishra filed application dated 15.1.2013 before the police authorities to the effect that they had purchased disputed house situated at Plot No.59/3, ad-measuring 1500 sq.ft., by registered sale-deed dated 1.1.2011 from one Bhagwan Singh. Thus, they are owners in possession of the disputed house. However, on 15.1.2013, some criminal elements belonging to U.P. had tried to forcibly enter the disputed house and disposes the respondent no.1. They were claiming to be relatives of erstwhile owner Bhagwan Singh. They were threatening respondent no.1 and his wife with dire consequences if they cast eye upon the disputed house. The respondent no. 1 also received threats from unknown phone numbers with regard to the disputed house.
3. The case of the petitioners before the SDM was that Bhagwan Singh was their uncle. The petitioners have received the disputed house from Bhagwan Singh by way of Will. He never executed any sale deed in favour of respondent Devendra Kumar and his wife. Respondent No.1 was never put in possession of the disputed house by Bhagwan Singh. Thus, petitioners are owners in occupation of disputed house.
4. S.H.O., P.S. Govindpura, Bhopal filed a complaint under Section 145(1) of the Cr.P.C. in respect of the disputed house expressing apprehension of breach of peace, before the S.D.M. Pursuant to aforesaid complaint, SDM passed preliminary order under Section 145 (1) and issued notice to both the parties. The parties filed their reply. After filing reply, respondent no. 1 Devendra moved an application under Section 146 of the Cr.P.C. praying for attachment of the property and appointment of receiver for the same. Petitioners Kaushlendra etc. opposed the application claiming that they are in actual physical possession of the disputed house.
5. By order dated 10.09.2013, learned SDM observed that there is a dispute between the parties with regard to possession of the disputed house. It was further observed that the question of possession shall be considered at the time of final disposal of the case; however, since there is a dispute between the parties and there is apprehension of breach of peace, which may take a serious turn at any time, SHO, P.S.-Govindpura was directed to attach property forthwith and give it in the possession of some independent person.
6. The order dated 10.09.2013 was unsuccessfully challenged before the 3rd ASJ, Bhopal in criminal revision no.538/2013 on behalf of the applicants Kaushlendra.
7. Learned counsel for the applicants Kaushlendra etc. have assailed the orders of the Courts below on the ground that the party no.1 was admittedly in possession of disputed house. A civil suit between the parties is pending. Inviting attention of the Court to the judgment rendered by the Supreme Court dated 13-12-2012 passed in the case of Ashok Kumar v. State of Uttarakhand & Ors., (Criminal Appeal No. 2038/2012), it has been contended that the order passed by learned SDM under Section 146 (1) of the Cr.P.C. was without application of mind and was passed in a casual and mechanical manner resulting in serious prejudice to the applicants. The pre-conditions as mentioned under Section 146 of the Cr.P.C., were not considered in the matter; therefore, the order was without jurisdiction.
8. Learned counsel for the respondents, on the other hand, have supported the impugned order.
9. Though, it has been submitted that a civil suit is pending in the matter but no document
The main legal point established in the judgment is the binding effect of the settlement between the parties, the waiver of the right to seek re-employment by the workmen, and the entitlement of the ....
A lockout is justified if it is declared in response to an illegal strike or a strike that is in breach of a settlement or award.
The combination of eyewitness testimonies, recovery of the weapon used, and forensic examination results can establish guilt in criminal cases, even based on circumstantial evidence.
The conviction of an accused person under Section 27(3) of the Arms Act is not permissible in law if the accused is also charged with committing murder under Section 302 of the Indian Penal Code.
The court can enhance compensation based on the deceased's income and family dependency, and adjust the multiplier used by the Tribunal if found unjustified.
A valid signature must be in the candidate's own handwriting, as emphasized by the General Clauses Act and relevant case law.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
