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Allahabad High Court
Mirja Farahat Ali vs State Of U.P. And Another on 2 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:70522
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 482 No. - 24947 of 2007
Mirja Farahat Ali
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Dharmendra Pratap Singh, Dheeraj Kumar Dwivedi
Counsel for Opposite Party(s)
:
Afzal Ahmad, Govt. Advocate
Court No. - 83
HON'BLE SANJIV KUMAR, J.
1. Heard Sri D.P. Singh, learned Counsel for the applicant, Sri Om Prakash Mishra, learned A.G.A. for the State and Sri Afzal Ahmad, learned Counsel for the opposite party No.2.
2. This application under Section 482 Cr.P.C. has been filed for quashing proceedings of Criminal Case No.12 of 2007, under Sections 145/146 Cr.P.C., Police Station Sikandra, District Kanpur Dehat and also quash the order dated 29.07.2007 passed under Sections 145 (1) and 146 (1) Cr.P.C., Police Station Sikandra, District Kanpur Dehat passed by the Sub-Divisional Magistrate, Sikandra in Case No.12 of 2007.
3. The brief facts of the case are that opposite Party No. 2, Niyazu, moved an application stating therein that the applicant and others tried to stop him from burying the dead body of his paternal uncle on Arazi No.595, which is a graveyard. It was further alleged that the applicant had fraudulently sold a part of the graveyard for a sum of Rs. 6 lakhs, but he could not deliver possession of the land to the purchaser. In the meantime, when opposite Party No. 2 brought the dead body of his uncle to bury it in the said graveyard, the applicant and others objected to the burial of the dead body. Thereupon, the Sub-Inspector of Police Station Sikandra, District Kanpur Dehat, submitted a report dated 29.07.2007 before the Sub-Divisional Magistrate, Sikandra, District Kanpur Dehat, stating that opposite Party No. 2 wanted to bury the dead body of his paternal uncle on land bearing Gata No.595, claiming it to be a graveyard, whereas the applicant and others claimed their possession over the disputed land. It was also reported that both parties belong to different communities, the first party being of the Sunni community and the second party being of the Shia community. In view of the above, there is an apprehension of breach of peace and it will take time to know about the real owner of the disputed property. Therefore, proceedings under Section 107/116 Cr.P.C. are being conducted, as both the parties are trying to take possession of the disputed property forcibly.
4. Upon this report, the Sub-Divisional Magistrate, Sikandra, District Kanpur Dehat, under Sections 145/146 Cr.P.C., on 29.07.2007, issued notice under Section 145(1) Cr.P.C. on 29.07.2007 and also, under Section 146(1) Cr.P.C., directed the Station In-charge of Police Station Sikandra to attach the disputed property and give it into the custody of a respectable person.
5. Learned Counsel for the applicant has submitted that the applicant purchased Arazi No.595, measuring 0.220 hectare from Kaneej Fatma, wife of Ali Salman and Tanveer Fatma by way of a sale deed dated 16.09.2002. One Babu had filed Suit No.597/95 for permanent injunction against the original owners of the said land, which was partly decreed and a finding was recorded that Kaneej Fatma, Tanveer Fatma, and Jamil Fatma are the bhumidhars of the aforesaid land. He further submitted that proceedings under Section 145 Cr.P.C. were initiated between Jamil Fatma and Babu in Case No. 5/94 before the Sub-Divisional Magistrate, Bhognipur, District Kanpur Dehat, on 31.03.1995 and the same was decided. Against the said order, Babu filed a revision, which was allowed on 29.08.1995, and the matter was remanded for fresh hearing. Thereafter, both parties entered into a compromise on 06.09.1995, and the proceedings were closed in view of the said compromise. Subsequently, opposite Party No. 2, Niyazu, moved an application under Section 145 Cr.P.C., though there is no dispute regarding Arazi No. 595 and he is not in possession thereof. However, on the basis of a police report, the impugned orders were passed. The applicant filed objections on 06.08.2007, stating the correct facts that there is no likelihood of breach of peace. It was also submitted that opposite Party No. 2 has no right to bury a dead body on the disputed property, which is owned by the applicant by virtue of the sale deed. It is further submitted that the civil suit was decided between Babu and Kaneej Fatma, Tanveer Fatma and Jamil Fatma, which was decreed by the Trial Court. Thereafter, the proceedings under Section 145 Cr.P.C. were also decided between them in terms of compromise. Therefore, there is now no dispute regarding the aforesaid land and no apprehension of breach of peace.
6. Learned Counsel for the applicant has relied upon a decision of this Court in Application (U/S 482 Cr.P.C.) No.9198 of 2021, Aman Deep Singh Shishya vs. State of U.P. and Another, decided on 20.12.2023, in which it was observed that a Civil Suit was pending when the impugned preliminary order under Section 145(1) Cr.P.C. was passed by the S.D.M., and in view of the same, it was held that there was no justification to keep the parties indulged in parallel criminal proceedings initiated under Section 145 Cr.P.C.
7. Per contra, learned Counsel for the opposite Party No.2 has submitted that the Zamindar of Sikandra (once a small village, now a town area) had given Arazi No. 595 to the ancestors of opposite party No.2, which has been used as a graveyard by opposite party No.2 and his ancestors for more than 100 years. The applicant has changed the name of his grandmother to Ahmedi Begum in order to grab the property of the erstwhile Zamindars, one of whose legal heirs was Smt. Ahmedi Begum, wife of Kallu @ Yaqub Ali. One of the heirs of the Zamindar, Aiyaz Fayak, who is living at Banjara Hills, Hyderabad came to his village Sikandra and filed a suit against the applicant when he came to know that the applicant had grabbed the property by manipulating records and on basis of forged documents. However, the suit was dismissed in default, and the restoration application was also dismissed, against which an appeal was filed and the matter was remanded for hearing. It is further submitted that the applicant got the land records manipulated and thereafter fraudulently transferred the share of his aunt, Kaneez Fatima, in the name of his mother, Jamila Fatima, by producing his mother-in-law in place of Kaneez Fatima without her knowledge. The old revenue records also show that the land is a graveyard. When opposite party No. 2 went to the graveyard to bury the dead body of his paternal uncle, the applicant illegally restrained him, upon which proceedings under Sections 145 and 146 Cr.P.C. were initiated by the S.D.M., Kanpur Dehat. It is also submitted that the police, in its report, has shown the existence of graves on Arazi No. 595. It is further submitted that no civil suit is presently pending between the parties. Therefore, the present application has no force and is liable to be dismissed.
8. Considering the submissions of both the parties as well as the material available on record, it is clear that the applicant has challenged the proceedings initiated under Sections 145 and 146 Cr.P.C.
9. According to Section 145 Cr.P.C., whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class is satisfied, from a police report or other information, that a dispute likely to cause a breach of peace exists concerning any land, water, or the boundaries thereof within the local limits of his jurisdiction, he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend the Court in person or by pleader within the time fixed by such Magistrate and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute and further requiring them to put in such documents or to adduce, by affidavits, the evidence of such persons as they rely upon in support of such claims. Therefore, the foundation of the Magistrate's jurisdiction under Section 145 Cr.P.C. is the apprehension of a breach of peace and with that object, he makes a temporary order irrespective of the rights of the parties, which are to be determined and decided in accordance with law. Therefore, in such proceedings, the core question always is whether a dispute exists between the parties, which is likely to lead to a breach of peace.
10. According to the applicant, the ownership of the disputed land bearing Arazi No. 595, measuring 0.220 hectare, has already been settled by a civil court in Civil Suit No. 597 of 1995 between Babu and Kaneej Fatma and others and it is alleged that in the said suit, Kaneej Fatma and others were found to be bhoomidhars of the disputed property. It is the case of the applicant that he has purchased the disputed land from Kaneej Fatma and another on 16.09.2002. In this regard, the documents filed in the present proceedings show that the aforesaid Civil Suit No. 597 of 1995 between Babu and Kaneej Fatma and others was not decided on merits, but was disposed of on the basis of a compromise, wherein the trial court did not adjudicate the rights of the parties. In the said suit, the dispute between the parties was that Babu claimed his right over Arazi No. 596, whereas Jameel Fatima claimed her right over Arazi No. 595, meaning thereby that both of them claimed rights over different parcels of land. Since the civil court did not adjudicate the rights of the parties on merits, the contention of the applicant that the rights with regard to the disputed land have already been settled by the civil court has no force.
11. It is also submitted on behalf of the applicant that proceedings under Section 145 Cr.P.C. were initiated between Babu and Kaneej Fatma and others, but the same were closed on the basis of compromise between the parties, therefore, the said proceedings have no effect on the present dispute between them.
12. Admittedly, no civil suit is pending between both the parties and as per the police report, there was a dispute between the parties and an apprehension of breach of peace. In such a situation, proceedings under Sections 145 and 146 Cr.P.C. were initiated. The judgment relied upon by the applicant does not apply to the facts and circumstances of the present case because there is no civil suit pending between the parties wherein they can seek equally efficacious relief. Both the parties claimed their rights over the disputed property and in view of the police report, the dispute was such as to raise an apprehension of breach of peace and thereby the proceedings were initiated.
13. In view of the above, I do not find any merit in the present application to warrant interference with the proceedings pending before the learned Magistrate. Accordingly, the application stands dismissed.
(Sanjiv Kumar,J.)
April 2, 2026
Amit
