Maya Ram vs State Of U.P. Thru. Its Addl. Chief Secy. ...
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Allahabad High Court

Maya Ram vs State Of U.P. Thru. Its Addl. Chief Secy. ... on 29 May, 2025

Author: Manish Kumar

Bench: Manish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:32753
 
Court No. - 14
 
Case :- APPLICATION U/S 528 BNSS No. - 458 of 2025
 
Applicant :- Maya Ram
 
Opposite Party :- State Of U.P. Thru. Its Addl. Chief Secy. Home Deptt. Lko. And Another
 
Counsel for Applicant :- Ubhai Kumar Singh,Abhishek Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Manish Kumar,J.
 

1. Heard Sri Ubhai Kumar Singh, learned counsel for the applicant, Sri Dinesh Kumar Shukla, learned counsel for the respondent no. 2 and Sri Rao Narendra Singh, learned AGA for the State.

"For the facts and reasons stated in the accompanying affidavit it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned order dated 07.04.2025 (as contained in Annexure No. 01 to the accompanying affidavit) passed by S.D.M. Tehsil Colonelganj, District Gonda in Case No. 6648 of 2025 u/s 164/165 BNSS, District Gonda (Shyam Lal v/s Maya Ram and this Hon'ble Court may further be pleased to quash the proceedings of Case No. 6648 of 2025 u/s 164 BNSS, District Gonda (Shyam Lal v/s Maya Ram pending before S.D.M. Tehsil Colonelganj, District Gonda.

It is further prayed that during the pendency of the present petition U/S 528 B.N.S.S., this Hon'ble Court may also be pleased to stay the impugned order dated 07.04.2025 (as contained in Annexure No. 01 to the accompanying affidavit) passed by S.D.M. Tehsil Colonelganj, District Gonda in Case No. 6648 of 2025 u/s 164/165 BNSS, District Gonda (Shyam Lal v/s Maya Ram as well as stay the proceedings of Case No. 6648 of 2025 u/s 164 BNSS, District Gonda (Shyam Lal v/s Maya Ram) pending before S.D.M. Tehsil Colonelganj, District Gonda., otherwise the Applicant shall suffer irreparable loss and injury."

2. Learned counsel for the applicant has submitted that an application under Section 164(1) B.N.S.S. has been preferred by the respondent no. 2 before the Sub Divisional Magistrate, Colonelganj, District Gonda on 18.11.2024. The Police had submitted its report dated 09.12.2024 and after considering the same, the order dated 27.01.2025 has been passed under Section 164(1) of the B.N.S.S.

3. It is further submitted that during the pendency of proceedings under Section 164(1) of the B.N.S.S., the respondent no. 2 again moved an application on 02.04.2025 for attachment of the property. The Sub Divisional Magistrate on the said application has passed the impugned order dated 07.04.2025 for attachment of the property and to hand it over to some third person. The impugned order passed by the Sub Divisional Magistrate under Section 165 B.N.S.S. showing two reasons for attachment of the property or land in dispute firstly, relied upon the report submitted by the Police dated 09.12.2024 and secondly, the application given by the complainant dated 02.04.2025.

4. It is further submitted that the Sub Divisional Magistrate has not called for any fresh report from the Police and on the basis of the earlier report dated 09.12.2024, the impugned order has been passed. If on the basis of the earlier report, the order was not passed earlier on 27.01.2025 when the proceedings have been initiated and only issue notice under Section 164(1) of the B.N.S.S., meaning hereby, the Sub Divisional Magistrate was not satisfied with the report of the Police for passing an order under Section 165 of the B.N.S.S. It is because of some application given by the complainant on 02.04.2025, the order of attachment has been passed without providing the copy of the complaint given by the respondent no. 2 to the applicant and without providing any opportunity to the applicant as well as without calling for any fresh report from the Police so the evidence which was before the Magistrate was only the application given by the respondent no. 2 dated 02.04.2025.

5. The report submitted by the police on 09.12.2024 a map has been attached showing the possession of the applicant. Once there is a possession of any of the parties either rightly or wrongly, the Magistrate is not empowered to pass an order for attachment on the ground of emergency. The Magistrate has to satisfy himself as to whether any emergency exists for passing an order under Section 165 of B.N.S.S. for maintaining law and order/public peace as held by the Hon'ble Supreme Court in the case of Ashok Kumar vs. State of Uttrakhand & Ors. [(2013) 3 SCC 316].

6. As discussed above, for passing an order of attachment, there must be a satisfaction and not merely on the basis of apprehension of breach of peace, the order of attachment could be passed. Here, merely on the application of the respondent no. 2/complainant before the Sub Divisional Magistrate, the order of attachment has been passed. This Court in the case of Indra Kaushik and 3 Ors. vs. State of U.P. & 2 Ors. in APPLICATION U/S No. 27977 of 2015 along with other connected matters passed a detailed judgment dated 14.08.2019, after considering the law laid down by the Hon'ble Supreme Court. Relevant paragraph no. 28 of the same is quoted hereinbelow:-

"28. It would also be pertinent to cite correct position of law so to arrive at right conclusion in the matter in the light of judgment of Ashok Kumar Vs. State of Uttarakhand and Others (2013) 3 SCC 366. In this case, second respondent/plaintiff filed a suit before Civil Judge against the appellant/defendant and the third respondent praying for a decree of temporary injunction restraining them from interfering with the plaintiff's peaceful enjoyment and possession of the landed property in question. An application was also filed under Order 39 Rules 1 and 2 read with Section 151 Cr.P.C. for an order of interim injunction. The second respondent/ plaintiff later filed an application under Section 145/146 Cr.P.C. before S.D.M. for an order of attachment of the property. An enquiry was conducted pursuant to which a report was submitted by S.I., Police stating that even though the property was in the name of the second respondent yet the appellant was in possession thereof and his house was situated in the land in dispute where he had undertaken some construction. It was further stated in the report that the possibility of breach of peace in the locality could not be ruled out. Meanwhile, in the Civil Suit after conducting an inspection, a report was submitted by the Amin stating that the respondent-plaintiff was in possession of the property and the construction was going on. The S.D.M. while noticing the possession of the property of appellant/defendant passed the impugned order attaching the property under Section 146 (1) Cr.P.C. The High Court affirmed the order of the S.D.M. Allowing the appeal and setting-aside the attachment, the Supreme Court held that Sections 145 and 146 Cr.P.C. together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of peace and Section 146 Cr.P.C. cannot be separated from Section 145 Cr.P.C. It could only be read in the context of Section 145 Cr.P.C. The object of Section 145 Cr.P.C. is to maintain law and order and to prevent breach of peace by maintaining one or other parties in possession and not for evicting any person from possession. The scope of inquiry under Section 145 Cr.P.C. is in respect of actual possession without reference to the merits or claims of any of the parties to a right to possess to subject of dispute. If after the enquiry under Section 145 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) Cr.P.C. or is unable to decide which of the parties was in such possession, he may attach the subject of dispute. But when 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 ingredients necessary for passing an order under Section 145 (1) Cr.P.C. would not automatically attract the attachment of the property. Under Section 146 Cr.P.C., the Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment. A Case of emergency, as contemplated under Section 146 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 Cr.P.C., must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be material on record before the Magistrate when the submission of the parties is filed, documents produced or evidence adduced. In the present case, the respondent/ plaintiff has filed a Civil Suit for injunction before the Civil Judge against the appellant-defendant and another and an application for interim injunction is also pending, on which the Civil Court has issued only a notice. An Amin Report was called for and the Amin submitted his report. As the Civil Suit was filed prior in point of time, it is for the Civil Court to decide as to who was in possession on the date of filing of the suit. In any view, there is nothing to show that there was an emergency so as to invoke the powers under Section 146 (1) Cr.P.C. to attach the property, especially when a Civil Court is seized of the matter. Under such circumstances, the orders of attachment passed by the S.D.M. and the High Court are liable to be set-aside."

7. In view of the facts, circumstances and discussion made hereinabove and the judgment of Hon'ble Supreme Court as well this Court, the present application is allowed.

8. The impugned order dated 07.04.2025 passed by the Sub Divisional Magistrate, Tehsil Colonelganj, District Gonda in Case No. 6648 of 2025 u/s 164/165 BNSS, District Gonda is hereby set aside.

Order Date :- 29.5.2025

Nitesh