Madhya Pradesh High Court

Pran Singh vs Basant Singh on 11 May, 2022

Author: Atul Sreedharan

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ATUL SREEDHARAN
ON THE 11th OF MAY, 2022

MISC. CRIMINAL CASE No. 19668 of 2015

Between:-
PRAN SINGH S/O SHRI KAMMOD SINGH , AGED
ABOUT 45 YEARS, VILL. SALAIYA P.S.
AJAYGARH DISTT. PANNA (MADHYA PRADESH)

.....PETITIONER
(BY SHRI PARVEZ AHMED QUAZI, LEARNED COUNSEL)

AND

1. BASANT SINGH S/O SHRI JUGRAJ SINGH VILL.
SALAIYA P.S. AJAYGARH DISTT. PANNA
(MADHYA PRADESH)

2. BHOPAL SINGH S/O SHRI GANGA SINGH VILL.
SALAIYA P.S. AJAYGARH DISTT. PANNA
(MADHYA PRADESH)

3. RAJRANI W/O SHRI GANGA SINGH VILL.
SALAIYA P.S. AJAYGARH DISTT. PANNA
(MADHYA PRADESH)

4. STATE OF M.P. THRO. P.S. AJAYGARH P.S.
AJAYGARH, PANNA (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI TARUN SINGH, LEARNED COUNSEL FOR THE
RESPONDENT NO.1, 2 AND 3 AND NARENDRA CHOURASIYA,
LEARNED GOVERNMENT ADVOCATE FOR THE
RESPONDENT/STATE)

This petition coming on for admission and interim relief this day, the
court passed the following:
ORDER

Signature Not Verified SAN The present petition has been filed by the petitioner herein who is Digitally signed by RAVIKANT KEWAT Date: 2022.05.17 11:09:07 IST aggrieved by the order dated 20.10.2015 passed in Criminal Revision

No.71/2015 passed by the Court of learned Additional Judge to the Court of the Ist Additional Sessions Judge, Panna, whereby the revision petition filed by the petitioner herein against the order dated 07.09.2015 passed by the SDM, Ajaygarh in Case No.5/2014 u/s 145 Cr.P.C. was dismissed.

The case of the petitioner is that he is the owner of the house no.69 admeasuring 5400 sq.ft. situated at Ward No.12 of village Salaiya, Tahsil- Ajaygarh, District-Panna. The undisputed facts in this case is that the petitioner moved an application u/s 145 Cr.P.C. wherein he made the respondents herein as opposite parties/respondents and that he was apprehending breach of peace by the respondents herein as they were claiming ownership of the entire land on

which the house admeasuring 5400 sq.ft. was situated. The notice was issued to the respondents herein by the Magistrate and after hearing them, while the matter was pending u/s 145 Cr.P.C. the petitioner moved an application u/s 146 Cr.P.C. for the appointment of a receiver. The order was passed by the Magistrate on 07.09.2015 on the said application moved by the petitioner and a receiver was appointed. The application u/s 146 Cr.P.C. has not been filed in this petition. This is the undisputed facts in this case. Thereafter, against the order dated 07.09.2015, the petitioner preferred a revision before the Court of Sessions which dismissed the revision and, thereby affirmed the order passed by the Magistrate u/s 146 Cr.P.C. While doing so, learned Court of revision also observed that there was an instance of violence between the parties and therefore, the apprehension of breach of peace was not fanciful.

Learned counsel for the petitioner has challenged the order passed by the Magistrate and the Court of Revision on two grounds. First of all, he submits Signature Not Verified SAN

that the procedure u/s 145 (1) was not followed by the Magistrate before Digitally signed by RAVIKANT KEWAT Date: 2022.05.17 11:09:07 IST

passing the order u/s 146 as notice had to be issued to respondent and material

on record had to be considered u/s 145(1) Cr.P.C., before passing an order u/s 146 Cr.P.C.

Having gone through the provisions, as far as the point of law is concerned, learned counsel for the petitioner is correct. However, learned counsel for the respondents has submitted that notice was issued in compliance of section 145(1) by the learned Sub-Divisional Magistrate and only thereafter an order u/s 146 was passed.

Having gone through the order dated 07.09.2015, it appears that the Magistrate had called for a report from the Tahsildar and Executive Magistrate, Ajaygarh. He received a report which revealed that the land originally belonged to Late Jugraj Singh and on that land, he had made a house which subsequently came into the possession of one Bilha. The petitioner is stated to have purchased the house from Bilha. The dispute is with regard to the land on which the house is situated as the same stated to belong Jugraj Singh whose descendants are respondents herein. Learned counsel for the petitioner has relied upon the judgment of the Supreme Court in Ashok Kumar Vs. State of Uttarakhand and Others, reported in (2013) 3 SCC 366 with a specific reference from paragraph no.6 to 11. The proposition laid down in the said judgment was that before the powers u/s 146 can be invoked, the procedure u/s 145 (1) has to be followed. It further held that the Magistrate cannot decide the

question of ownership of the property and can only examine the possession of the property. It also held that the ingredients which are necessary for passing the order u/s 145(1) Cr.P.C. would not automatically attract attachment of the

Signature Not Verified SAN property u/s 146 Cr.P.C.

Digitally signed by RAVIKANT KEWAT However, the facts of the case before the Supreme Court has to be taken Date: 2022.05.17 11:09:07 IST

note of. In that case, the appellant Ashok Sharma was already in possession of a house situated on the suit property land. Mona Sharma was the second respondent in the Appeal before the Supreme Court, had filed a civil suit before the Court of Civil Judge, Junior Division at Haridwar, praying for a decree of temporary injunction and restraining the petitioner before the Supreme Court from interfering with her peaceful enjoyment and possession of the property. It was respondent-Mona Sharma, who filed an application u/s 145 Cr.P.C. in respect of the disputed property before the SDM. The police report that was placed before the SDM revealed that the house of the Ashok Kumar, the petitioner before the Supreme Court, was situated on the suit property where he has undertaking some constructions. Thereafter, on the said report, the SDM, Haridwar passed the impugned order u/s 146(1) attaching the property, the validity of which was under challenged before the Supreme Court. It was in the backdrop of the aforementioned facts that the Supreme Court had passed its observations on the question of law.

However, the factual aspects before this Court is different. It was the petitioner herein who had filed an application u/s 145 (1) Cr.P.C. before the SDM. During the pendency of the said application, it was the petitioner himself who has filed an application u/s 146 Cr.P.C. invoking the power of the SDM to attach the subject of dispute and to appoint a receiver. From the undisputed fact, it is clear that it was the petitioner himself who moved an application u/s 146 Cr.P.C. in which the impugned order was passed allowing his prayer and appointing Sub-Divisional Magistrate as a receiver of the property in question.

Under the circumstances, in the backdrop of the factual aspects of this Signature Not Verified SAN

case, the judgment putforth by the learned counsel for the petitioner would not Digitally signed by RAVIKANT KEWAT Date: 2022.05.17 11:09:07 IST

apply. Undisputedly, the order dated 07.09.2015 is an order ad-invitum at the

behest of the petitioner himself.

Under the circumstances, he has no ground to be aggrieved by the said order, therefore, the petition filed by the petitioner is without any legal basis and same is dismissed. Interim orders passed earlier stand vacated.

Any remedy sought before the Authority shall be considered on merits without being influenced by this order.

With the above, the petition is finally disposed off.

(ATUL SREEDHARAN) JUDGE rk.

Signature Not Verified SAN

Digitally signed by RAVIKANT KEWAT Date: 2022.05.17 11:09:07 IST