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2012 DIGILAW 1904 (ALL)

Pashupatinath Gupta v. State of U. P. and Others

2012-08-24

MANOJ MISRA

body2012
Manoj Misra, J.;— Heard learned counsel for the petitioner, Sri S.N.Tripathi, Advocate, for the opposite party No.2 and learned A.G.A for the State. 2. With the consent of the learned counsel for the parties, the petition is being disposed of without inviting any counter affidavit. 3. By this writ petition, the petitioner has challenged the order dated 9.8.2012 passed by the Additional Session Judge, court No.2, Gorakhpur to the extent that it direct the Executive Magistrate to pass order directing the S.H.O, Rajghat, Gorakhpur to break open the lock put by the police or "any other person". 4. The contention of the petitioner is that proceedings under section 145 Cr.P.C were initiated in respect to the property concerned. These proceedings were dropped by order dated 30.3.2012 passed by the City Magistrate/Executive Magistrate, in Case No. 7/16/2012, under section 145(1) Cr.P.C, on the ground that in respect to the property concerned, proceedings were pending before the civil court, and that there were various orders operating in the civil proceedings. Against the order dated 30.3.2012, the opposite party No.2 preferred revision with a claim that during the proceeding, under section 145 Cr.P.C, the premises were locked by the police, therefore, when the proceeding, under section 145 Cr.P.C, have been dropped, the lock should be put off. The court below being impressed by the claim of the opposite party No.2, allowed the revision application and directed the Executive Magistrate to direct the S.H.O, Rajghat to break open the lock put by the police or any other person. 5. Aggrieved by the above direction given by the court below, the present writ petition has been filed. It has been contended on behalf of the petitioner that when the proceedings under section 145 Cr.P.C have been dropped, the parties are to be relegated to the position in which they were prior to the said proceeding and, therefore, the lock put by any other person cannot be removed inasmuch as that lock was not put in exercise of power under section 145 Cr.P.C or other ancilliary provision. 6. 6. Sri S.N. Tripathi, Advocate, who has put in appearance on behalf of opposite party No.2 makes a statement that the petitioner himself had claimed that the lock on the main channel gate was put by the police, therefore, he cannot challenge the order passed by the court below to the extent that it directs to break open the lock. In response to the contention of Sri S.N. Tripathi, learned counsel for the petitioner pointed out that in the application moved by the petitioner, a claim was made that the lock was put by the police on the channel gate whereas in the chalani report submitted by the police a statement was to the effect that there was a lock of the first party put on the gate. The first party to the proceedings, as per the chalani report, is Pashupati Nath Gupta, who is the petitioner herein. 7. Be that as it may, since the proceedings under section 145 Cr.P.C have been dropped, the order passed by the court below directing the Executive Magistrate to direct opening of lock put by the police cannot be faulted. However, the direction to break open the lock put by "any other person" would be beyond the scope of the power, once the proceedings under section 145 Cr.P.C have been dropped. Consequently, the order dated 9.8.2012 passed by the Additional Session Judge, Court No.2, Gorakhpur in Crl. Revision No. 135 of 2012 is modified to the extent that it shall remain operative only to the extent that it directs the Executive Magistrate to direct the S.H.O Rajghat, Gorakhpur to break open the lock put by the police. 8. With the aforesaid directions, the writ petition stands disposed of. _____________