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2016 DIGILAW 631 (ALL)

Nandan Singh @ Chandan Singh v. State of U. P

2016-02-22

MAHENDRA DAYAL

body2016
JUDGMENT Mahendra Dayal, J. Heard learned counsel for the applicants and the learned AGA for the State. No one has appeared on behalf of the opposite parties No.2 and 3 in spite of case being taken up in the revised list. 2. The applicants have prayed for quashing of the proceedings of Case No.196/2013, under Section 145 Cr.P.C., pending in the Court of Sub-Divisional Magistrate, Tanda, District Ambedkar Nagar. 3. It has been argued by the learned counsel for the applicants that acting upon the police report dated 08.02.2013, the learned Sub-Divisional Magistrate on 23.02.2013 passed a preliminary order, under Section 145 (1) Cr.P.C. calling upon the parties to file their written statement. 4. The only ground of challenge by the applicants is that under the scheme of Section 145 Cr.P.C., the Magistrate upon police report or otherwise, has power to take cognizance under Section 145 Cr.P.C. and pass preliminary order under Sub-section (1) calling upon the parties to file their written statement and evidence only in those cases where the Magistrate is satisfied that there is apprehension of breach of peace with regard to possession of certain land, water or boundaries thereof. 5. The submission on behalf of the applicants is that unless the Magistrate records his satisfaction to the existence of breach of peace, he has no jurisdiction to pass preliminary order under Section 145 Cr.P.C. and call upon the parties to give evidence. 6. Learned AGA appearing on behalf of the State has submitted that the S.O. of Police Station, Imbrahimpur, District Ambedkar Nagar has given a detailed report that there was a serious dispute between the parties with regard to possession of Gata Nos.98, 99 and 100, situated at Village Kherpur within the jurisdiction of Police Station Imbrahimpur, District Ambedkar Nagar. The learned Magistrate relying upon the aforesaid police report, passed the preliminary order calling upon the parties to file their written statement and evidence in support of their respective claims. There is, therefore, no illegality in the order passed by the learned Magistrate. 7. The submission of the learned counsel for the applicants is that there is a decree of the Civil Court in his favour. This decree was passed by Additional Civil Judge, Faizabad in Regular Suit No.101/1985, decided on 28.07.1990 by which the father of the applicants was held to be in possession of the property in dispute. 7. The submission of the learned counsel for the applicants is that there is a decree of the Civil Court in his favour. This decree was passed by Additional Civil Judge, Faizabad in Regular Suit No.101/1985, decided on 28.07.1990 by which the father of the applicants was held to be in possession of the property in dispute. The said judgment and order has become final and once the title of the opposite parties has been held to be conclusive by the Civil Court, the learned Sub-Divisional Magistrate had no power to decide the dispute of possession when there was no report to the effect that there was any apprehension of breach of peace between the parties. 8. The opposite parties No.2 and 3 have filed their counter affidavit, but no one has appeared on their behalf. A perusal of the counter affidavit filed by the opposite parties reveals that status-quo order has been passed by the Additional Commissioner, Faizabad Division, Faizabad on 14.03.2007 in Revision No.797/2135, which is still pending. The applicants had been violating the aforesaid order passed by the Additional Commissioner, Faizabad, therefore, necessity arose for filing the application under Section 145 Cr.P.C. 9. After hearing learned counsel for the applicants and the learned AGA for the State and on perusal of the record, it appears that in the police report submitted by the S.O. of Police Station Imbrahimpur, District Ambedkar Nagar, it has no where been mentioned that there is any apprehension of breach of peace between the parties. The learned Magistrate has also not recorded his satisfaction in the preliminary order as to how he was satisfied that there was any apprehension of breach of peace. The language of Section 145 Cr.P.C. makes it clear that a Magistrate is empowered to take cognizance under Section 145 Cr.P.C. and pass preliminary order only if he is satisfied from a police report or otherwise that a dispute likely to cause a breach of peace exists with regard to any land within his jurisdiction. Since, no satisfaction has been recorded by the Magistrate in his preliminary order, therefore, the impugned preliminary order is per se illegal. 10. In view of above, the application is allowed and the preliminary order passed by the learned Sub-Divisional Magistrate, Tanda, District Ambedkar Nagar, which is dated 23.02.2013 is hereby set aside. Since, no satisfaction has been recorded by the Magistrate in his preliminary order, therefore, the impugned preliminary order is per se illegal. 10. In view of above, the application is allowed and the preliminary order passed by the learned Sub-Divisional Magistrate, Tanda, District Ambedkar Nagar, which is dated 23.02.2013 is hereby set aside. However, it will be open to the Magistrate to call a fresh police report and in case he finds his satisfaction that there is still existence of any apprehension of breach of peace, it will be open for him to pass appropriate orders in accordance with law.