Allahabad High Court
Smt. Sursati Devi Thru. Her Power ... vs State Of U.P. & Others on 12 November, 2018
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- U/S 482/378/407 No. - 4769 of 2018
Applicant :- Smt. Sursati Devi Thru. Her Power Of Attorney Durga Prasad
Opposite Party :- State Of U.P. & Others
Counsel for Applicant :- Onkar Nath Pandey
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Dinesh Kumar Singh,J.
1. This petition under Section 482 Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') has been filed impugning the order dated 28th May, 2016 passed by the Sub-Divisional Magistrate, Tahsil Mahsi, District Bahraich in Case No.55/35, under Section 145/146 Cr.P.C., Police Station Hardi, Tahsil Mahsi, District Bahraich by which the learned Magistrate declined to pass/issue order under Section 145 Cr.P.C. on an application filed by the petitioner. The learned Magistrate was of the view that Regular Civil Suit No.345 of 2014 is pending before the competent Court with respect to the property in question and, therefore, when the civil suit is pending between the parties, it would not be proper to exercise jurisdiction under Section 145 Cr.P.C.
2. Aggrieved by the aforesaid order of the Sub-Divisional Magistrate, the petitioner approached the Additional Sessions Judge/Fast Track Court-I, Bahraich by way of filing Criminal Revision No.93 of 2016. However, the Revisional Court vide impugned order dated 13th November, 2017 has dismissed the revision. The revisional Court has relied on the judgment of the Supreme Court in Ram Sumer Puri Mahant vs State Of U.P. and Ors (1985) 1 SCC 427.
3. I have considered arguments advanced by the learned counsel for the petitioner and heard Shri Vishnu Dev Shukla, learned Additional Government Advocate representing the State.
4. The petitioner herein filed an application on 24th February, 2015 under Section 145/146 (1) Cr.P.C. alleging that land in question was in exclusive ownership and possession of her mother and after death of her mother, she became the owner and got possession of the land. She said that the crop was standing which was sowed by the petitioner. She further said that she recently came to know that the Satya Narain/respondent no. 5's father got the land mutated in his name on the basis of forged will of her mother and after the death of father of respondent no. 5, his name had been mutated in the revenue record. After coming to know these facts, she had filed a case under Section 229-B U.P. Z.A. & L.R. Act, which was pending. As soon as the respondents came to know about filing of the case by the petitioner, they had tried to take possession of the land forcibly and they had also assaulted the petitioner. They had been threatening the petitioner that if she would come near the land in dispute, she would be killed. She further said that on the basis of aforesaid facts there had been apprehension of breach of peace and, therefore, appropriate order of attachment under Section 145/146(1) Cr.P.C. should be passed.
5. It is not in dispute that the petitioner had filed civil and revenue cases in respect of the land before approaching the Magistrate under Section 145/146(1) Cr.P.C. Police in its report had submitted that there was no apprehension of breach of peace and the civil suit was pending in respect of the land in dispute.
6. Sections 145 and 146 of the Cr.P.C. together constitute a scheme for the resolution of a situation where there is a likelihood of breach of the peace. If after the inquiry under Section 145 of the Cr.P.C. the Magistrate is of the opinion that none of the parties was in actual possession of the subject of dispute at the time of order passed under Section 145(1) or is unable to decide which of the parties was in such position, he may attach the subject of dispute, until a competent Court has determined the right of the parties thereto with regard to the person entitled to possession thereof. Under Section 145(1) of the Cr.P.C. the Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment.
7. The Supreme Court in the case of Ashok Kumar Vs. State Of Uttarakhand and others (2013) 3 SCC 366 has held that a case of emergency, as contemplated under Section 146 of the Cr.P.C. has to be distinguished from a mere case of apprehension of a breach of peace. The Magistrate, before passing an order under Section 146, must explain the circumstances why in his view it would be a case of emergency. In other words, there must be material on record before the Magistrate that the emergency exists where the order under Section 145 (1) of the Cr.P.C. would be required to be passed.
8. The petitioner had already filed a civil suit before approaching the Magistrate accompanying an application for interim injunction. It is for the civil Court to decide that she was in possession on the date of filing of the suit. Further, the application under Section 145/146 of the Cr.P.C. was made in the year 2015. Since filing of the application, four years have gone-by. The purpose of proceedings under Section 145/146(1) Cr.P.C. is to prevent emergent situation of breach of peace.
9. Considering the fact that the civil and revenue litigations are pending in respect of the land in dispute and the considerable time has elapsed since the application under Section 145/146 Cr.P.C. got filed by the petitioner, at this stage no order can be passed for attachment of the land in dispute under Section 145/146 Cr.P.C.
10. In view of the aforesaid discussions, I do not find any merit and substance in this petition, which is hereby dismissed. Interim order, if any, shall stand vacated.
Order Date :- 12.11.2018
MVS Chauhan/-
