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Uttarakhand High Court · body

2010 DIGILAW 329 (UTT)

MANOHAR LAL SHARMA v. STATE OF UTTARAKHAND

2010-05-19

PRAFULLA C.PANT

body2010
JUDGMENT Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit filed on behalf of the parties. 2. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), the petitioner has sought quashing of the orders dated 06.10.2009 and 13.11.2009, passed by the City Magistrate, Haridwar, in Case No. 23 of 2009, under Section 145/146 of Cr.P.C. 3. Brief facts of the case are that Reporting Outpost Khadkhadi, police station Kotwali Haridwar, made a report on 24.08.2009 to the City Magistrate, Haridwar, that an Ashram known as ‘Kalpdham Ashram’ was earlier run by one Swami Abdedanandji. The petitioner Manohar Lal Sharma was his paid servant. But, before said Swamiji left, he appointed the petitioner as Trustee of the Ashram, who started living within the premises of Ashram, and used to look after the property. Thereafter, other Trustees appointed Swami Pranavanandji (respondent No. 2) as the Managing Trustee/Chairman of the Ashram. Meanwhile, dispute arose between the parties and allegations were made by the respondent No. 2 and the petitioner that each one of them is inducting new Trustees. On receipt of the report of the police relating to law and order, proceedings under Section 145 of Cr.P.C. were drawn, and preliminary order dated 06.10.2009 (copy Annexure-1 to the petition) was passed by the City Magistrate, inviting the parties in dispute to produce the evidence. The petitioner responded to the notice and put up his case before the City Magistrate. 4. The petitioner responded to the notice and put up his case before the City Magistrate. 4. On 12.11.2009, Sub Inspector Pankaj Pokhariyal of police station Kotwali Haridwar got registered a first information report, relating to offences punishable under Section 309, 306, 120-B of I.P.C. against Sumati Devi (wife of the present petitioner), Indrajeet Sharma (son of the petitioner), Dalip (son-in-law of the present petitioner) and one Manoj Gautam, which contained following allegations : ß----- dYi/kke vkJe dk eq[; njoktk ogka ij jg jgs efgyk lqefr nsoh iRuh euksgj yky “kekZ o mlds iq= bUæthr “kekZ us cUn fd;k gqvk gS o ckgj [kM+s dYi/kke VªLV ds vU; VªfLV;ksa dks Hkhrj ugha vkus ns jgh gSA o Hkhrj est ds lkeus [kMh gksdj fpYyk jgh gS ftlds ,d gkFk esa feVVh rsy dh tjdhu idM+h gqbZ o ,d gkFk esa ekfpl dh fMCch idM+h gqbZ gS o dg jgh gS fd ;fn fdlh us vUnj vkus dh dksf”k”k dh rks eSa vius Åij feVVh dk rsy Mkydj vkx yxk ywaxh vkSj ej tkÅaxhA ftlds lkFk esa [kM+k bldk yM+dk bUæthr “kekZ bl dke ds fy, mdlk jgk gS fd rqe vius Åij rsy Mkyks eSa ns[krk gw¡ fd dkSu vUnj vkrk gSA fd brus esa gh lqefr nsoh us vius gkFk es afy, tjdhu dks vius Åij mMsy fn;k o nwljs gkFk esa idM+h ekfpl dh fMCch ls frYyh fudky dj vkx yxk yh ftldks gekjs }kjk rkyk yxs xsV ds ckn nwj ls le>kus dk dkQh iz;kl fd;k x;k Fkk ysfdu rc rd oks vkx yxk pqdh Fkh mlh le; ,d xksYMu dyj dh ,d vkYVks dkj rsth ls vkdj xsV ij #dh ftlds fy, vUnj ls nkSM+rs gq, leqfr ds yM+ds bUæthr us njoktk [kksyk fd eSa ,l vkbZ e; QkslZ ds xsV ds vUnj izos”k fd;k vkSj loZizFke gejkfg;ku dh enn ls efgyk dks cpk;k x;k ftlds “kky esa vkx yxh Fkh “kky tehu ij ty jgk FkkA o efgyk Hkh >qyl x;h FkhA ftls efgyk iq- dh enn ls le; 12-30 cts fgjklr esa fy;k x;k o ikl esa ikuh ds uy ls ikuh ysdj “kky o efgyk ds Åij ikuh Mkyk x;k bl chp vkYVks dkj ls vk;s efgyk ds nkekn iq= Lo- Jh lksgu yky us crk;k fd ekrk th vki esjh xkM+h esa cSBks eSa vkidks vius leFkZdksa ds ikl ysdj pyrk gw¡A geus tks Iyku cuk;k Fkk oks iwjk gks x;k ikl esa [kM+s efgyk ds yM+ds bUæthr dks Hkh fgjklr iq- esa fy;k x;k ekSds ij eq> ,l vkbZ }kjk 108 ,Ecwysal dks cqykdj efgyk et#ck lqefr nsoh ¼vfHk;qDr½ efgyk dkfu- 358 jhrk pkSgku o efgyk dkfu- vuhrk Fkkik dks lkFk dj okLrs mipkj fpfdRlky; Hkstk x;k ekSds ij dkQh HkhM+ bdVBk gSA-----Þ 5. In the above circumstances, on the next day, the City Magistrate passed another impugned order dated 13.11.2009, under Section 146(1) of Cr.P.C., attaching the property and appointing a Sub Inspector of Reporting Outpost Khaddhadi, police station Kotwali Haridwar, as Receiver. 6. Learned counsel for the petitioner submitted that the orders passed by the City Magistrate are erroneous in law, as Suit No. 84 of 2009 filed by the respondent No. 2 on behalf of the Trust is already pending before the civil court. Attention of this Court is drawn to the case of Kunjbihari Vs. Balram and another (2006) 11 Supreme Court Cases 66; Ram Sumer Puri Mahant Vs. State of U.P. and others, AIR 1985 Supreme Court 472; Virendra Kumar Vs. State of U.P. and others, 2003 CRI L.J. 2709 (All); and Atahaul Haque and others Mohd. Allauddin 2000 CRI L.J. 3245 (Patna), and it is argued that when the suit in respect of property in dispute is pending, the proceedings under Section 145 of Cr.P.C. must be dropped. I have examined the facts of the present case and also went through the cases referred on behalf of the petitioner. No doubt, it is settled principle of law that when the suit in respect of a property is already pending before a civil court, the proceedings under Section 145 of Cr.P.C. are not desirable. However, it is pertinent to mention here that Section 146(1) of Cr.P.C. provides three different situations when the order can be could be passed under said Section, namely (i) when it is a case of emergency, or (ii) when none of the parties are found in possession of the property in dispute, or (iii) when the Magistrate is unable to satisfy himself as to which of the parties are in possession over the property in dispute. 7. As far as abovementioned conditions No. (ii) and (iii) are concerned, certainly when the dispute is pending before the competent civil court, the Magistrate instead of proceeding further with the proceedings under Section 145 or 146 of Cr.P.C. should direct the parties to get their rights determined from the civil court, where the suit is pending. However, in the case of the emergency, Magistrate cannot be expected to wait for the decision of the civil court. However, in the case of the emergency, Magistrate cannot be expected to wait for the decision of the civil court. In the present case, as apparent from the police report that the petitioner’s wife and family members said to have closed the doors of the Ashram and Sumati (petitioner’s wife) threatened to set herself on fire, if any of the Trustee dared to enter in the premises of the Ashram. It is further reported that Sumati Devi (wife of the petitioner), to set herself on fire, poured kerosene oil on herself near the gate of the Ashram. In such circumstances, police had to take her into custody and make a report to the Sub Divisional Magistrate, after lodging the first information report. In the circumstances, the attachment order passed by the City Magistrate cannot be said to be illegal. But the main grievance of the petitioner in the present case before this Court is that the petitioner and his family has been ousted from the two rooms occupied by him as Trustee in the Ashram. I do agree with learned counsel for the petitioner that under the garb of the proceedings of 145/146 of Cr.P.C., the petitioner and his family could not have been evicted, in the manner complained by the petitioner before this Court. For eviction of the petitioner and his family only the civil court could have passed the decree in the suit filed by the respondent No. 2 on behalf of the Trust. It is not a case of any party that petitioner illegally occupied the two rooms within two months before the proceedings initiated under Section 145 of Cr.P.C. In the circumstances, in the opinion of this Court necessary orders are required to be passed by this Court under Section 482 of Cr.P.C. to do justice between the parties to the extent of restoration of possession of the two rooms. However, the rest part of the impugned orders do not require interference. 8. Accordingly, this petition under Section 482 of Cr.P.C. is disposed of with the direction that the petitioner shall be restored possession of the two rooms which were in his occupation for stay of his family without any right of management of the Ashram, subject to decision of the civil court. Rest part of the impugned orders are not interfered with. Accordingly, this petition under Section 482 of Cr.P.C. is disposed of with the direction that the petitioner shall be restored possession of the two rooms which were in his occupation for stay of his family without any right of management of the Ashram, subject to decision of the civil court. Rest part of the impugned orders are not interfered with. As to the management of the property by the Trustees, including respondent No. 2, they are free to obtain necessary orders from the civil court which would supercede the impugned orders of attachment, and appointment of the Receiver.