Allahabad High Court
Amar Nath Gaur @ Kallu vs State Of U.P. & Another on 16 August, 2017
Bench: Abhai Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 22
Case :- CRIMINAL REVISION No. - 1652 of 2014
Revisionist :- Amar Nath Gaur @ Kallu
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Syed Wajid Ali
Counsel for Opposite Party :- Govt. Advocate,V K Gupta
Hon'ble Abhai Kumar,J.
Heard learned counsel for the revisionist, learned counsel for the opposite party no.2 and learned A.G.A. for the State and perused the record.
This revision has been preferred by the revisionist against the order dated 24.5.2014 passed by the learned City Magistrate, Gorakhpur in Case No.18 of 2014 under Section 146(1) of the Cr.P.C., Police Station-Cant, District-Gorakhpur.
It is submitted by the learned counsel for the revisionist that the impugned order has been passed on the application of opposite party no.2 dated 20.9.2012. An order under Section 145(1) Cr.P.C. was passed on 10.4.2013 whereby notice was issued to the parties to file objection and evidence with regard to the possession. After hearing the parties, the trial court passed the impugned order dated 24.5.2014 attaching the disputed shop on the ground that there is imminent danger of peace.
It is submitted by the learned counsel for the revisionist that by his own admission of opposite party no.2, the revisionist is in possession of the disputed shop since 7.7.2011, although it has been stated by the learned counsel that the opposite party no.2 was never in possession of the property. It is also submitted that the civil suit was also filed by the revisionist wherein counter claim was filed by the opposite party no.2 and in the counter claim also, the possession of the revisionist was admitted since 7.7.2011. Learned counsel for the revisionist vehemently argued that when the possession of the revisionist is settled and it is not disputed that who is in possession at the time of making complaint to the executive magistrate and attachment of the property cannot be made under Section 146(1) of the Cr.P.C.
To fortify his contention, learned counsel for the revisionist has relied upon the law laid down by the Apex Court in the case of Ashok Kumar Vs.State of Uttarakhand and others reported in 2013(80) SC 599, whereas it is submitted by the learned counsel for the opposite party no.2 that he was in possession of the disputed property since 2005.
Section 146(1) of the Cr.P.C. is reproduced for ready reference hereinbelow:
"146 (1). Power to attach subject of dispute and to appoint receiver.
If the Magistrate at any time after making the order under sub- section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute."
Mere perusal of Section 146(1) of the Cr.P.C., it can be said that if the possession is not disputed, then an order cannot be passed under Section 146(1) of the Cr.P.C. It is clearly mentioned in the section that in case, the magistrate is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto
The Hon'ble Apex Court in the case of Ashok Kumar (supra) observed in para-7 as follows:
"7.We are of the view that the S.D.M. has not properly appreciated the scope of sections 145 and 146(1) Cr.P.C. The object of section 145 Cr.P.C. is merely to maintain law and order and to prevent breach of peace by maintaining one or other of the parties in possession, and not for evicting any person from possession. The scope of enquiry under Section 145 is in respect of actual possession without reference to the merits or claim of any of the parties to a right to possess the subject of dispute."
The observation of the Apex Court is categorically clear that the proceedings under Sections 145 and 146(1) of the Cr.P.C. cannot be means to evict any party from the possession whereas it is merely to maintain the law and order and to prevent breach of peace by maintaining one or other of the parties in possession.
The Hon'ble Apex Court further observed in para 14 as follows:
"14. We find from this case there is nothing to show that an emergency exists so as to invoke section 146(1) and to attach the property in question. A case of emergency, as per section 146 of the Code has to be distinguished from a mere case of apprehension of breach of peace. When the reports indicate that one of the parties is in possession, rightly or wrongly, the Magistrate cannot pass an order of attachment on the ground of emergency. The order acknowledges the fact that Ashok Kumar has started construction in the property in question, therefore, possession of property is with the appellant-Ashok Kumar, whether it is legal or not, is not for the S.D.M. to decide."
May be as per the contention of the learned counsel for the opposite party no.2 might have been in possession prior to 7.7.2011 but as per his own admission of the opposite party no.2, revisionist is in possession since 7.7.2011. An F.I.R. was lodged in this regard regarding dispossession of the opposite party no.2. This fact is also admitted in the application dated 20.9.2012, upon which, the proceeding of the present case was initiated. In the counter claim itself, this fact was admitted by the opposite party no.2 that the revisionist did take possession of the disputed property by force on 7.7.2011. It is pertinent to note that application before executive magistrate was moved on 20.9.2012 i.e. after more than one year. So opposite party no.2 was not in possession in near past when application was moved. Impugned order was passed on 24.5.2014, almost three years since the admitted possession of revision. At no point of time, it is contended that opposite party no.2 even came into possession in this period.
In view of the above, when there was clear cut evidence regarding the possession of the revisionist, then the order for attachment could not have been passed by the Magistrate as has been done by the impugned order.
Accordingly, this Court is of the view that the trial court has passed an illegal order without considering the facts in proper perspective and taking the evidence before it.
Consequently, the revision is liable to be quashed. Accordingly, the revision is allowed. The impugned order dated 24.5.2014 passed by the City Magistrate, Gorakhpur in Case No.18 of 2014 under Section 146(1) Cr.P.C., Police Station-Cantt, District Gorakhpur is hereby quashed.
Order Date :- 16.8.2017
Ashish Tripathi
