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2008 DIGILAW 1058 (ALL)

ASKARI AHMAD v. STATE OF UTTAR PRADESH

2008-05-15

AMAR SARAN

body2008
JUDGMENT Hon’ble Amar Saran, J.—I have heard learned Counsel for the parties on 16-4-2008 and reserved judgment. I had also granted time to the parties to file their written arguments within a week. 2. The respondents have filed their written arguments but the applicant has neither filed any counter-affidavit nor written arguments. 3. This criminal revision has been preferred by the applicant first party for challenging an order dated 31-7-2006 passed by the Additional Sessions Judge/Spl. Judge, EC Act, Meerut, allowing the Crl. Revision No. 228 of 2004 filed by opposite parties Nos. 2 and 3 setting aside the order dated 16-4-2004 passed by the SDM Meerut initiating proceedings under Sections 145(1) and 146(1), Cr.P.C. in Case No. 19 of 2004, Askari Ahmad @ Manzoor Ahmad v. Akbar Ali and others. 4. The orders dated 16-4-2004 under Sections 145(1) and 146(1), Cr.P.C. had been passed by the SDM, Meerut, on the ground that he was satisfied by the report dated 26-2-2004 of the S.H.O., P.S. Bhawanpur, and the report of the Naib-Tehsildar I, Bhawanpur, dated 16-4-2004 that there was an imminent dispute between the parties relating to plot Nos. 839, 898, 901, 902, 968 falling within his jurisdiction in village Abdullapur, over the possession of the aforesaid property hence he was passing the preliminary order and an order attaching the properties and handing over the same to a supurdagar who was to get the standing crops cut and the proceeds therefrom deposited in the treasury. 5. The applicant’s case was that he was a resident of village Abdullapur and was in possession of the aforesaid plots which was a waqf property and was registered with the Shia Central Wakf Board, Lucknow. The applicant also claimed to be the mutwalli of the same wakf and the property was said to have been recorded as the property of the waqf in the revenue records and that the opposite party had no claim or concern with the land in dispute and wanted to grab the waqf property. 6. The revisional Court had, however, entertained the revision and observed that prior to the initiation of the 145, Cr.P.C. proceedings by the Magistrate on 16-4-2004 a Revision No. 183 of 2003 was pending before the Wakf Tribunal (Civil Judge, Jr. Division, Meerut) wherein it was being contended by the opposite parties that the property had wrongly been registered in the name of the waqf. Division, Meerut) wherein it was being contended by the opposite parties that the property had wrongly been registered in the name of the waqf. The revisional Court further observed that in the revenue records, opposite party No. 2 is shown as the owner of the said land. Thus, prima facie he could also be considered to be in possession. He was setting aside the impugned orders dated 16-4-2004 under Sections 145(1) and 146(1), Cr.P.C. on that ground that as observed by the Apex Court in various decisions it was not proper to allow parallel proceedings both under Sections 145 and 146, Cr.P.C and civil litigation to proceed with respect to the same property. Learned Counsel for the respondents has referred to the case of Ram Sumer Puri (Mahant) v. State of U.P. and others, 1985 (1) SCC 427 , in this connection. 7. Moreover, it has also been mentioned in the counter-affidavit and in the written arguments filed by respondent No. 2 that the revisionist was not even the mutwalli of the alleged waqf property and he had been removed from the post by the order dated 31-10-2005, hence he had no locus standi to file the present revision. It is also significant, as I have pointed out hereinabove, that no counter-affidavit nor any written arguments have been filed by the respondents refuting these averments. 8. Learned Counsel for respondent No. 2 has referred to the decision of Gulab Chand v. State of U.P. & Anr., 2004 (48) ACC 579, for supporting the order of the revisional Court by holding that the orders under Sections 145(1) and 146(1) Cr.P.C. are intermediate, and not interlocutory orders, and the bar under Section 397(2) Cr.P.C. would not apply to such orders. The learned Counsel for the applicant, however placing reliance on the Division Bench decision of Indradeo Pandey v. Smt. Bhagwati, 1981 (18) ACC 316, has contended that the orders under Sections 145(1) and 146(1) Cr.P.C. are interlocutory in nature against which no revision lies. 9. It would not be necessary for this Court at this stage to go into the question whether the concerned order was interlocutory or intermediate in nature and as to whether the view taken in the case of Gulab Chandra or Indra Deo Pandey was correct. 9. It would not be necessary for this Court at this stage to go into the question whether the concerned order was interlocutory or intermediate in nature and as to whether the view taken in the case of Gulab Chandra or Indra Deo Pandey was correct. If the proceedings under Sections 145 and 146 are considered without jurisdiction in view of the decision in Ram Sumer Puri (Mahant)’s case which bars parallel proceedings under Section 145 and 146 Cr.P.C when the same matter is under the scanner in a civil case, which can delve into both questions of title and possession and is quite competent to pass interim orders for possession, or appointment of a supurdgar for adequate protection of the property etc., there would be no impediment on a Revisional Court entertaining the matter if the order is shown as being without jurisdiction. Moreover, this Court in its inherent jurisdiction under Section 482, Cr.P.C. can for facilitating the ends of justice or in its plenary supervisory powers under Article 227 of the Constitution always look at the legality and jurisdiction of the Magistrate in initiating proceedings under Sections 145 and 146, Cr.P.C., when civil litigation was pending with respect to the same subject matter, irrespective of the nature of proceedings, i.e. whether the High Court has been approached by means of a Criminal Revision or an application under Section 482 Cr.P.C. It is also immaterial as to which party, the first party or the second, has approached this Court. In Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 , it has been observed that the label of the petition, i.e. whether it is described as a Criminal Revision, or an application under Section 482, Cr.P.C. is immaterial in such circumstances. In Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 , it has been observed that the label of the petition, i.e. whether it is described as a Criminal Revision, or an application under Section 482, Cr.P.C. is immaterial in such circumstances. Further it has been observed in Madhu Limaye, that for achieving the ends of justice, if the impugned order or proceedings involve a question of jurisdiction, then the bar under Section 397(2), Cr.P.C. cannot stand in the way of the High Court passing appropriate orders in exercise of its inherent jurisdiction under Section 482, Cr.P.C. The following lines from paragraph 10 of Madhu Limaye are apposite : “In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character, which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between.” (Emphasis supplied) 10. I also find that a long time has elapsed since the order dated 16-4-2004 and proceedings under Sections 145 and 146 Cr.P.C. are initiated for expeditious resolution of disputes which can lead to immediate problems of law and order in situations of emergency for temporary periods until the dispute is resolved by a competent civil Court. I also find that a long time has elapsed since the order dated 16-4-2004 and proceedings under Sections 145 and 146 Cr.P.C. are initiated for expeditious resolution of disputes which can lead to immediate problems of law and order in situations of emergency for temporary periods until the dispute is resolved by a competent civil Court. On this ground also I feel that the impugned orders attaching the property had been properly set aside by the revisional Court and there is no illegality in the order passed by the revisional Court. This revision has, therefore, no force and is rejected. The interim order granted earlier is vacated. ————