INDIAN OIL CORPORATION LTD. v. STATE OF U P. — 1983 DIGILAW 657 (ALL)

P. N. BAKSHI, J. ( 1 ) THIS revision arises out of the proceedings under section 145 Criminal Procedure Code. This litigation has a long chequered history. It appears that proceedings under section 145 Criminal Procedure Code, were initiated before the S. D. M. on the application of Murali dated 17th March, 1981 with respect to the Petrol diesel pump Annpurna Filling Station installed in Machhali Shahar on Allahabad-Jaunpur road. The allegation was that Paras Nath Opp. Party wanted to take forcible possession of the property - with the assistance of undesirable persons and that there was an apprehension of breach of peace. Considering the case one of emergency, the Sub-Divisional Magistrate directed attachment of the Petrol Pump under section 146 (1) Criminal Procedure Code vide its order dated 18th March, 1931. An application was filed thereafter by the Indian Oil Corporation though Mr. M. C. Sahgal, alleging that Paras Nath was an authorized dealer and that Murali was neither owner of the land; nor the Petrol Pump, but merely a servant employed at the Pump. It is all alleged that there was no apprehension of breach of peace and the proceedings were liable to be dropped. The applicant claimed to be a person interested within the meaning of the aforesaid expression under section 145 Criminal Procedure Code. On 2. 6. 1981, the Sub-Divisional Magistrate dropped the proceedings under section 145 Criminal Procedure Code. He vacated the order of attachment and directed release of the Petrol Pump in favour of the Indian Oil Corporation and the land on which the Petrol Pump stood in favour of Paras Nath. Aggrieved thereby Criminal Revision No. 740/81 was filed in this court. Honble N. N. Sharma, J. allowed the revision, set aside the order of S. D M. dated 2. 6. 1981 and remanded the case to the Magistrate to be dealt with in accordance with law under the provisions of Section 145 (4) and IS) Criminal Procedure Code vide his order dated 4. 12. 1981. An application was filed thereafter in the High Court on behalf of the Indian Oil Corporation for recalling the order of this Court dated 4. 12. 1981 on the ground that the Indian Oil Corporation had not been impleaded as a party in the said revision and the order had been passed behind its back. Honble N. N. Sharma J. rejected this application on 30th April. 12. 1981 on the ground that the Indian Oil Corporation had not been impleaded as a party in the said revision and the order had been passed behind its back. Honble N. N. Sharma J. rejected this application on 30th April. 1982, holding that his order passed in revision was not liable to be recalled and that it was open to the Indian Oil Corporation to agitate the question whether it was interested party or not in proceedings before the trial court. ( 2 ) THE Sub Divisional Magistrate then proceeded to decide the case under section 145 (4) (5) Criminal Procedure Code. Again an objection was filed before the Sub Divisional Magistrate by the Indian Oil Corporation claiming to be a person interested and praying that the order of reattachment or property be recalled and proceeding. under section 145 Criminal Procedure Code be dropped. Paras Nath also filed an application before the Sub Divisional Magistrate on 13. 9. 82 in which he also alleged that there was no apprehension of breach of peace and the proceedings under section 145 Criminal Procedure Code were not maintainable and they should be dropped. The Sub Divisional Magistrate repelled the contentions of the Indian Oil Corporation as well as of Paras Nath vide its order dated 16. 5. 83. Paras Nath appears to be satisfied with the order of the S. D. M. inasmuch as he did not file any revisions before this Court, but the Indian Oil Corporation being dis-satisfied filed the instant revision No. 1033 of 1983, in which Murali and Paras Nath were both impleaded as the Opp. parties. ( 3 ) IT may be worth-while to mention that in the impugned order dated 16. 5. 83, the Sub Divisional Magistrate after considering the comparative cases of the parties, as set out by them came to the conclusion that the apprehension of breach of peace continues to exist. He was also of the view that since the Indian Oil Corporation did not claim to be in possession but has put forward the case that possession be delivered to Paras Nath. It was not a person interested within the meaning of Section 145 (5) Criminal Procedure Code. ( 4 ) COUNSEL for the applicant viz. Indian Oil Corporation, has argued that the impugned order passed by the Sub Divisional Magistrate dated 16. 5. It was not a person interested within the meaning of Section 145 (5) Criminal Procedure Code. ( 4 ) COUNSEL for the applicant viz. Indian Oil Corporation, has argued that the impugned order passed by the Sub Divisional Magistrate dated 16. 5. 83 is illegal and erroneons and that the Indian Oil Corporation was a person interested. in the aforesaid dispute. It is submitted that actual physical possession of the disputed property was not a necessary condition for holding that the Indian Oil Corporation was not a person, interested and thus. not entitled to file objection under section 145 (5) Criminal Procedure Code. In support of his contention learned counsel has referred to a number of cases. To begin, with, the applicants counsel has attempted to distinguish my decision Mahanth Vishwanath Das v. Pancham and others1. I have pursued that case. Apart from the question dealt therein, I had also in that case considered the meaning of the expression person interested. In doing so had considered the various sub-sections of Section 145 Criminal Procedure Code and had come to the conclusion that since Section 145 criminal Procedure Code deals with disputes concerning immoveable property which are likely to cause a breach of peace and since in such proceedings the court was not concerned with the title of the parties, but merely with the possession of the parties over the disputed land; it was necessary that the person who claimed to be interested in such proceedings must be a person claiming possession of the property. Under Section 145 (1) Criminal Procedure Code the parties were required to file their written statements with respect to the factum of actual possession. In other words my decision was that to be a person interested, one must claim to be in possession of the property in dispute. I still adhere to that view of law taken by me more than 10 years ago. No case of for court or any other court has been cited by the applicants counsel arising out of the proceedings under section 145 Criminal Procedure Code in which a different interpretation of the expression; person interestedt may have been given. I still adhere to that view of law taken by me more than 10 years ago. No case of for court or any other court has been cited by the applicants counsel arising out of the proceedings under section 145 Criminal Procedure Code in which a different interpretation of the expression; person interestedt may have been given. ( 5 ) THE applicantts counsel has, however cited before me a. decision of the Supreme, Court reported in Sunder Lal v. Prem Shanker Dos and others2 in which also that court has dealt with the expression person interested That was not a case arising out of section 145 Criminal Procedure Code. It was a case arising out of the Land Acquisition Proceedings. It is well known that in land acquisition proceedings a person who may not be in possession of the property, yet he can claim compensation. For instance if he is a co sharer in the property or a coparcener in such property, he will have a claim to compensation of the property. In these circumstances a co-sharer or a coparcener who is out of possession is still entitled to a share in the property and would thus be entitled to claim compensation. In these circumstances the expression interested person as used under Land Acquisition Act would include not only persons in possession of the property but also persons who have a title or share to the property which is being acquired, even though be may not be in possession. Persons in possession and persons out of possession would both he person interested within the meaning of that act. This anology of the Supreme Court is not at all applicable to the facts of the present case and cannot serve as a guide for defining the expression person interested as contemplated under section 145 (5) of the Criminal Procedure Code. ( 6 ) THE applicantts counsel has placed before me a division-bench decision of this court Ganga Singh v. Raj Bahadur Singh and others3. I have carefully perused this decision also. In my opinion, this case has no bearing on the point in controversy. The applicantts counsel has next cited a decision of this Court Kannolyo v. Han Mohan and others4. That was the case of joint possession and this court held that proceedings under section 145 Criminal procedure Code could not be made applicable in cases of joint-possession. In my opinion, this case has no bearing on the point in controversy. The applicantts counsel has next cited a decision of this Court Kannolyo v. Han Mohan and others4. That was the case of joint possession and this court held that proceedings under section 145 Criminal procedure Code could not be made applicable in cases of joint-possession. This decision again has no bearing on the point in question. ( 7 ) THE applicantts counsel has argued that even in the case of partnership, Section 145 Criminal Procedure Code would not apply. In this connection he has referred to the complaint and the statement of Murali recorded after filing the complaint. Whether there was a partnership or not, would depend upon the facts of each case which have to be established from the evidence on record. The stage for leading evidence has yet to come. The S. D. M. , in view of the aforesaid objection could not embark upon the inquiry concerning possession as contemplated under section 145 (4) Criminal Procedure Code. Therefore, it is premature to consider this objection. The Magistrate has held that the apprehension of breach of peace continues to exist. He will now record the evidence of the parties and only thereafter can he come to the conclusion whether the facts establish a case of the partnership or a case of exclusive possession of the contending parties. This is not the stage when I can record a finding one way or the other in the absence of any evidence having been recorded by the court below. ( 8 ) IT has been argued that in the instant case there is no dispute with regard to immovable property. I am not inclined to accepted is submission. The Petrol Pump is attached to the land. According to the case of Murali the opp. party Paras Nath was trying to take forcible possession, of the land and the Petrol Pump which was likely to lead to a breach of peace. As such the subject matter of dispute was immovable property and the provisions of section 145 Criminal Procedure Code were attached. ( 9 ) FOR the reasons given above, I am of the opinion that the Sub-Divisional Magistrate has rightly held that the Indian Oil Corporation is not a person interested within the meaning of Section. As such the subject matter of dispute was immovable property and the provisions of section 145 Criminal Procedure Code were attached. ( 9 ) FOR the reasons given above, I am of the opinion that the Sub-Divisional Magistrate has rightly held that the Indian Oil Corporation is not a person interested within the meaning of Section. 145 (5) Criminal Procedure Code and in this view of the matter, he has rightly rejected the objections. As I have mentioned above the objection of Paras Nath has also been rejected, He has not filed any revision against the order of the Court below. As such I come, to the conclusion that there is no merit in this revision, which is hereby dismissed. .