Allahabad High Court
Nem Singh And Another vs State Of U.P And 2 Others on 2 January, 2023
Bench: Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- APPLICATION U/S 482 No. - 14910 of 2022
Applicant :- Nem Singh And Another
Opposite Party :- State Of U.P And 2 Others
Counsel for Applicant :- Ajay Mishra,Shri Krishna Mishra
Counsel for Opposite Party :- G.A.,Bal Mukund Singh
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard the learned counsel for the applicants as well as the learned A.G.A. for the State and perused the record.
Learned counsel for the opp. party did not appear before the court at the time of the arguments.
By means of this application under section 482 Cr.P.C., the applicants have invoked the inherent jurisdiction of this court to set aside the order dated 11.5.2022 passed by City Magistrate, Mathura in case no. 1118 of 2020, State Vs. Nem Singh and another under section 146 Cr.P.C., police station Vrindavan, District Mathura and the further proceedings of case no. 33 of 2020, Nem Singh and others Vs. Sancity Hi tech Project pending before the court of City Magistrate, Mathura under section 145 Cr.P.C.
It is argued by the learned counsel for the applicants that the Apex Court in Amresh Tiwari Vs. Lalta Prasad Dubey and another reported in 2000 (4) SCC 440 and Ram Sumer's case 1985 SCC (Crl.) 98 has held that where civil suit of declaration of the title in respect of the same property is pending, the proceedings under section 145 Cr.P.C. are liable to be discontinued. Learned counsel for the applicants has submitted that as the civil suit no. 322 of 2017 Nem Singh Vs.Sancity Hi-Tech Project Pvt. Limited and another is pending between the parties in the court of Civil Judge (SD),Mathura wherein the relief of cancellation of sale deed and injunction is sought, hence, the proceedings under section 145 Cr.P.C. and consequent proceedings under section 146 Cr.P.C. are not maintainable.
Learned A.G.A. opposed the prayer and submitted that as the ownership of the disputed property is not fixed, hence, the order of attachment under section 146 Cr.P.C is appropriate.
The prayer herein is to set aside the order dated 11.5.2022 passed by the City Magistrate, Mathura in case no. 1118 of 2020, State Vs. Nem Singh and another under section 146 Cr.P.C. 1973, police station Vrindavan District Mathura. Though the proceedings of case no. 33 of 2020 Nem Singh and others vs. Sancity Hi Tech Project are also prayed to be quashed in the relief column, but during argument the only prayer pressed is regarding setting aside the order dated 11.5.2022 passed by City Magistrate, Mathura.
From the perusal of the impugned order dated 11.5.2022 passed by City Magistrate Mathura, it is found that as on the spot the possession of the either party could not be ascertained so the order under section 146 Cr.P.C. regarding attachment the property was passed by the officer concerned but it is submitted by the learned counsel for the applicant that though the order has been made regarding attachment but till date the property has not been attached and it is still in possession of the applicants.
The plaint of the civil suit no. 322 of 2017 Nem Singh Vs. Suncity pending in the court of civil judge (SD), Mathura is placed before the court wherein the prayer regarding cancellation of sale deed and injunction is made. It is submitted by the learned counsel for the applicant that no interim relief has been granted therein but as per the judgment of the Apex Court,if a civil suit regarding property in dispute is pending before the civil court, the proceedings under section 145 Cr.P.C. are liable to be discontinued. The proceedings under section 146 Cr.P.C. are initiated in continuation of the proceedings under section 145 Cr.P.C. only. As the civil suit between the parties is pending since long in the trial court, the parties can very well get a relief from that court in the light of the above judgment of the Apex Court. Thus the proceedings under section 146 Cr.P.C. are liable to be quashed.
The impugned order dated 11.5.2022 passed by the City Magistrate, Mathura is hereby set aside and the proceedings pending before him in this relation are also quashed.
The application under section 482 Cr.P.C. is hereby allowed.
Order Date :- 2.1.2023
Gss
