Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 2865 (ALL)

Rama Shankar Panday v. State of U. P.

2015-09-11

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta, J. – Heard counsel for the petitioner. 2. The petitioner aggrieved by order dated 26.8.2015 passed by the Additional District and Sessions Judge, Court no.1, Ghazipur in Criminal Revision no.200 of 2014 has approached this Court challenging its validity. By the said order, the revisional court has set aside the order of attachment dated 6.6.2014 passed by the Sub Divisional Magistrate under section 146(1), Cr.P.C. in case no. 24 of 2013. The revisional court has held that from the material on record, it is evident that the dispute between the parties relate to the land of which, they are joint tenure holders. The revisional court has referred to the police report paper no. 4-A, wherein, it is mentioned that the land in dispute is being cultivated by the second party to the proceedings, namely, the third respondent herein. The petitioner was trying to take possession of his share, which had given rise to apprehension of breach of peace. In the opinion of the revisional court, once possession of second party is admitted in the police report, it was not within the purview of the learned Magistrate to initiate proceedings under section 145 Cr.P.C. or to pass order of attachment. For coming to such conclusion, the revisional court has placed reliance on decision of Supreme Court in case of Ashok Kumar v. State of Uttarakhand, 2013 (80) ACC 599 (SC) : 2013 (122) AIC 205, and of this Court in case ofGopal and others v. State of U.P. and others, 2001 (43) ACC 496 (HC) wherein it is held as under : - "Proceeding under Section 145 , Cr.P.C. do not contemplate cases of joint property or joint holding or joint possession. In case of joint property proceeding under Section 145 , Cr.P.C. can be drawn only where a co-owner claims his actual possession over a specified portion of joint property to the exclusion of other co-tenure holders. The Magistrate had no power or jurisdiction to put the parties in possession as per their shares in the disputed property." 3. It is not disputed by learned counsel for the petitioner that the parties are co-tenure holders of the land in question. The Magistrate had no power or jurisdiction to put the parties in possession as per their shares in the disputed property." 3. It is not disputed by learned counsel for the petitioner that the parties are co-tenure holders of the land in question. However, it is submitted by learned counsel for the petitioner that the petitioner was in exclusive possession of the land and thus, the aforesaid decision in the case of Gopal and others (supra) would not apply to the facts of the case. It is further submitted that the learned Magistrate in proceedings under section 145 Cr.P.C. is competent to put a party back in possession, in exercise of power conferred by sub section (6). It is thus urged that even if the petitioner had been dispossessed, the learned Magistrate was competent to restore the possession of the petitioner. 4. Concededly, the parties to the dispute are co-tenure holders and the land in dispute is an agricultural holding. The name of both the parties is duly recorded in the revenue record. There is neither any pleading nor any evidence on record that the petitioner was in possession of any specified part of the land in dispute. On the contrary, as police report indicate, the second party was cultivating the land and the petitioner had raised the dispute as he wanted to take possession of his share. 5. Sub-section (6) of section 146 read with proviso to subsection 4 empowers the Magistrate to restore possession in case a party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer is received by the Magistrate, or after that date and before the date of his order under sub-section (1) of section 145 Cr.P.C. In the instant case, it is not even the case of the petitioner that he was covered by the provision to sub-section (4). Thus, contention of the petitioner that even if he was out of possession, his possession could be restored in proceedings under section 145 Cr.P.C. cannot be accepted. 6. The Supreme Court in the case of Ashok Kumar (supra) has held as under : - "9. The ingredients necessary for passing an order under Section 145 (1) of the Code would not automatically attract for the attachment of the property. 6. The Supreme Court in the case of Ashok Kumar (supra) has held as under : - "9. The ingredients necessary for passing an order under Section 145 (1) of the Code would not automatically attract for the attachment of the property. Under Section 146, a Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment. A case of emergency, as contemplated under Section 146 of the Code, has to be distinguished from a mere case of apprehension of breach of the peace. The Magistrate, before passing an order under Section 146, must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be a material on record before Magistrate when the submission of the parties filed, documents produced or evidence adduced. 10. We find from this case there is nothing to show that an emergency exists so as to invoke Section 146(1) and to attach the property in question. A case of emergency, as per Section 146 of the Code has to be distinguished from a mere case of apprehension of breach of peace. When the reports indicate that one of the parties is in possession, rightly or wrongly, the Magistrate cannot pass an order of attachment on the ground of emergency. The order acknowledges the fact that Ashok Kumar has started construction in the property in question, therefore, possession of property is with the appellant Ashok Kumar, whether it is legal or not, is not for the SDM to decide." 7. Thus, the Supreme Court has reiterated in the said decision that for exercise of power under Section 146(1) Cr.P.C. it should be a case of extreme emergency, which could not be equated with the power to initiate proceedings under Section 145 Cr.P.C. It has further been held that in case, the police report and other material indicate that any of the party is in possession of the land, rightly or wrongly, the Magistrate cannot pass an order of attachment. 8. In the instant case, the police report apprehending breach of peace, was submitted on 30.7.2013. 8. In the instant case, the police report apprehending breach of peace, was submitted on 30.7.2013. There was no material on record to establish that apprehension of breach of peace had continued or there was such emergency, as to invoke power of attachment under Section 146(1) Cr.P.C. However, the learned Magistrate abruptly after passing of about one year since the report was submitted by the police, passed order of attachment on 6.6.2014. 9. As noted above, under section 146(1) Cr.P.C., the power to attach subject matter of dispute and to appoint a receiver, has been conferred on the Magistrate in case of emergency. In the instant case, there was no material on record on the date the order of attachment was passed, that there was any emergency. Thus, in the opinion of the court, the exercise of power under section 146(1) Cr.P.C. cannot be countenanced. 10. Moreover, in case of joint agricultural holding, where the dispute is between two real brothers, it was not a proper exercise of jurisdiction to initiate proceedings under Section 145 Cr.P.C. The petitioner should have been directed to approach the civil court. This is more so when the police report mentions that the petitioner, the first party, at whose instance the proceedings were initiated, was trying to come in possession, on the basis of entry of his name in khatauni, though not in actual physical possession. 11. In the totality of the facts and circumstances of the case, this Court does not find any illegality or jurisdictional error on part of the revisional court in allowing the revision so as to warrant interference in exercise of power under Article 227 of the Constitution. 12. The petition lacks merit and is dismissed. Petition dismissed.