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2014 DIGILAW 982 (ALL)

Surya Narain v. State of U. P.

2014-03-27

KARUNA NAND BAJPAYEE

body2014
JUDGMENT Karuna Nand Bajpayee, J.: - This petition has been filed assailing the validity of the order dated 28.4.2012 passed by Sub Divisional Magistrate, Maharajganj whereby the proceedings under 145 Cr.P.C. were dropped and the Magistrate refused to attach the property. Criminal Revision no.38 of 2012 Surya Narain Vs. State of U.P. filed against the aforesaid order was also dismissed vide order dated 23.1.2014 which is also under challenge in this writ petition. 2. This is a fourth round but even today despite repeated calls none has appeared to press this petition. The counsel for respondent Sri A.K. Pandey is present. In such circumstances this court deemed it fit to proceed in the matter on the basis of the record and also with the assistance of the learned AGA. 3. It appears from the record that notice u/s 145 Cr.P.C. were issued and the parties after putting in their appearance placed their respective versions before the Magistrate concerned. Subsequently the Magistrate found that the proceedings in a Civil/Revenue Court on the same subject matter is also going on and in the opinion of the Magistrate there was no satisfactory evidence produced regarding the apprehension of breach of peace. A very detailed discussion regarding the facts and documents and the respective claims etc. has been made in the impugned order and the court below found that there was any hardly any justification to continue the proceedings under 145 Cr.P.C. In such circumstances the proceedings were dropped. Apart from this an incidental order has also been passed to the effect that because prima facie on the basis of the facts and documents produced before the court the possession of second party Kanti Devi is sufficiently proved and therefore, the property in question is being released in her favour. It has also been directed in the impugned order that the first party Surya Narain and Durgeshwar are also not to interfere with the peaceful possession of the second party till the final adjudication of consolidation court. The direction was in the nature of an injunction order from all corners. 4. So far as the right of the Magistrate to drop the proceedings is concerned, section 145(5) Cr.P.C. confers sufficient powers on him to do so. The direction was in the nature of an injunction order from all corners. 4. So far as the right of the Magistrate to drop the proceedings is concerned, section 145(5) Cr.P.C. confers sufficient powers on him to do so. If the Magistrate after initiating the proceedings u/s 145 Cr.p.C. was satisfied at a latter stage about non existence of apprehension of breach of peace there was no question for him to continue the proceedings, because the very basis which gives rise to the jurisdiction of the Magistrate to proceed u/s 145 Cr.P.C. scuttles . To that extent the impugned order passed by the Sub Divisional Magistrate is unassailable. 5. But the objectionable anomaly which the impugned order contains is the nature of incidental order which has been passed. Normally such an order could have been passed only by way of a final order after taking evidence of both the parties. If the Magistrate did not deem it fit to take the proceeding to their logical end and wanted to abandon the same in the mid way the question to give such findings as have been referred to above, which amount to adjudication on important civil rights of the parties cannot be countenanced with. In fact such a finding is more in nature of an administrative order because the judicial order of that nature could have been passed only at a proper stage in judicial proceedings after following due procedure and not in a summary manner or in breach of the regular procedure laid down by law. If the Magistrate desired to give any such finding in judicial capacity he must have allowed both the sides to give their respective evidence under 145(4) of Cr.P.C. and could not have by- passed and over jumped the provision of law in the manner which he has done. 6. The court of revision appears to have over looked this part of the order. It confined its Judicial evaluation only with regard to the power of the Magistrate to drop the proceeding under 145 (5) Cr.P.C. In that regard the order of the revision is unassailable. 6. The court of revision appears to have over looked this part of the order. It confined its Judicial evaluation only with regard to the power of the Magistrate to drop the proceeding under 145 (5) Cr.P.C. In that regard the order of the revision is unassailable. But as it has failed to take note of another part of the order, this court deems it proper to observe that so far as the incidental order of releasing the property in favour of the second party and the order directing the first party not to interfere in the peaceful possession of the second party is concerned it shall be treated to be a pure administrative order. In fact the property was never attached at any stage of the proceeding and there was no question therefore, to release the same in favour of any party. But it is also clarified that because almost a year has passed since the impugned order was passed by the S.D.M. and it is presumed that it has already been complied with and the second party must be enjoying the peaceful possession of the same, this order should not be construed to mean that her possession is to be disturbed or that the first party shall have the right or liberty to disturb the same. If the matter is sub-judice it is very much expected that the parties must abide by the orders of the civil or revenue court. It is also very much required that none of the parties shall take the law in its hand or shall commit crime of any kind or commit any breach of peace. What is meant by the above observations is only this much that the finding regarding the possession of the property will not be deemed to be a judicial finding nor it shall be presumed that there has been any judicial adjudication regarding the fact of their possession by way of Sub Divisional Magistrates order dated 28.4.2012. The arrangement made by the S.D.M shall be deemed to be a pure administrative arrangement. 7. With the aforesaid observations the petition is disposed of.