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2018 DIGILAW 2367 (ALL)

Balram Singh v. State Of U. P.

2018-11-20

JAYANT BANERJI

body2018
ORDER : Jayant Banerji, J. 1. Heard Shri Virendra Singh, learned counsel for the revisionist, Shri C.K. Singh, learned counsel for the O.P. Nos. 2 and 3 and learned A.G.A. for the State. 2. This criminal revision has been filed against the judgment and order dated 17.3.2018 passed by the Sessions Judge, Sonbhadra in Criminal Revision No. 2 of 2016 (Mahendra Singh Vs. State of U.P. and others), whereby, while allowing the revision, the order dated 22.1.2014 passed by the Sub-Divisional Magistrate, Robertsganj, District Sonbhadra in Case No. 41 of 2014 (Balram Singh Vs. Krishna Pratap Singh) passed under Section 145(1) and 146(1) Cr.P.C. was set aside and the matter was remanded. 3. From perusal of the affidavit it appears that the revisionist and the O.P. Nos. 2 and 3 are relatives and are descendants of a common ancestor namely Nathu Singh who had acquired property in village Mahuliya, Pargana Badhar, Tehsil Robertsganj, district Sonbhadra. In due course of time, part of the property devolved on the revisionist. Thereafter, the village Mahuliya came under consolidation operations. There occurred some dispute with regard to the plot no. 127, village Mahuliya. However, it is stated, mutual partition took place between the family members and Balram Singh (the revisionist) was given entire area of plot no. 126, 127 and 128 in village Mahuliya. However, on 26.12.2013, when the revisionist tried to raise the level of plot no. 127 then the respondent nos. 2 and 3 stopped him from doing so on the ground that on plot no. 127 their name was recorded. Then on enquiry the revisionist came to know that a fraud had been committed during consolidation proceedings and an order dated 15.7.1989 was obtained. The revisionist filed a restoration application before the Consolidation Officer which was rejected and thereafter the appeal filed by him before the Settlement Officer of Consolidation was allowed and the Consolidation Officer was directed to decide the case on merit. It has been stated that the case is pending before the Consolidation Authorities. 4. The police of the Police Station Robertsganj submitted a report before the Magistrate on 19.1.2014 that there is apprehension of breach of peace between the parties for possession over the plot no. 127 and there is imminent danger of a serious offence being committed in respect of that land. 4. The police of the Police Station Robertsganj submitted a report before the Magistrate on 19.1.2014 that there is apprehension of breach of peace between the parties for possession over the plot no. 127 and there is imminent danger of a serious offence being committed in respect of that land. Acting upon the police report, the Sub-Divisional Magistrate passed a preliminary order under Section 145(1) Cr.P.C. and the Magistrate also passed an order of attachment under Section 146(1) Cr.P.C. for attaching the disputed property and for giving same in custody to a third party. It is stated that the attachment order was complied on 22.1.2014. Notices were issued to both the parties and the revisionist as well as private opposite parties filed their statements before the Magistrate. The O. P. No. 2 filed a revision before the Sessions Judge which, it is alleged, came to be illegally allowed on 17.3.2018. 5. It is contended by the learned counsel for the applicant that the revisional court below has misdirected itself inasmuch as it has observed that the Magistrate has passed an order dated 22.1.2014 without there being a satisfaction recorded by him of extreme necessity/emergency. Learned counsel for the revisionist has placed reliance on the report of the police dated 19.1.2014 to demonstrate that the police report itself reveals that a serious situation exists which could lead to breach of peace and therefore there was necessity for attaching the disputed property i.e. plot no. 127 to prevent such breach of peace. Learned counsel has also pointed out that the police report also mentions that report under Section 107/116 Cr.P.C. with regard to the disputing parties was also being submitted. It is contended that the Magistrate has relied upon the report of the police while passing the order under Section 145(1) Cr.P.C. on 22.1.2014 as well as the attachment order under Section 146(1) Cr.P.C. dated 22.1.2014. It is contended that in view of the above, the order passed by the Sessions Judge is incorrect and deserves to be set aside. 6. Countering the submissions of the learned counsel for the revisionist, learned counsel for the O.P. Nos. It is contended that in view of the above, the order passed by the Sessions Judge is incorrect and deserves to be set aside. 6. Countering the submissions of the learned counsel for the revisionist, learned counsel for the O.P. Nos. 2 and 3 has stated that while passing the order under Section 145(1) Cr.P.C., the Magistrate has not stated the grounds of his satisfaction that the dispute was likely to cause breach of peace and it was incumbent on the Magistrate to have stated the grounds of his being so satisfied and therefore, the order passed by the Magistrate under Section 145(1) and 146(1) Cr.P.C. are not sustainable. It has been pointed out that the disputed plot no. 127 is situated in village Mahuliya while the police report refers to a plot situated in village Gauri Nisf. It is strongly contented that the respondents were in possession over the plot in question and they have been ousted from the same in pursuance of the order of attachment and the police have handed over the property after attachment to a third person. It is contended that the O.P. Nos. 2 and 3 are recorded bhoomidhar over the plot in dispute and as such the orders dated 22.1.2014 passed by the Magistrate is wholly illegal and the revisional court was justified in setting aside the orders passed by the Magistrate and remanding the matter. 7. The genesis of the present controversy is the police report dated 19.1.2014 that has been enclosed as Annexure No. 8 to the affidavit filed in support of the revision (hereinafter referred to as the 'affidavit'). In this report, it was stated by the police that during reconnaissance of the area it came to knowledge that at village Gauri Nisf, with regard to possession of plot no. 127, there was dispute and tension between the first party-Balram Singh (revisionist) and the second party-Krishna Pratap Singh and others. Both parties were claiming the plot no. 127 as their own and Krishna Pratap Singh of the second party was making new constructions over the plot in question. A dispute with regard to co-sharing was pending in the court with regard to the plot. Serious breach of peace was apprehended and in this situation preliminary orders under Sections 145(1) Cr.P.C. and attachment order under Section 146(1) Cr.P.C. and handing over the property in dispute to a receiver was necessary. A dispute with regard to co-sharing was pending in the court with regard to the plot. Serious breach of peace was apprehended and in this situation preliminary orders under Sections 145(1) Cr.P.C. and attachment order under Section 146(1) Cr.P.C. and handing over the property in dispute to a receiver was necessary. The plan of the disputed property was attached and the report also mentioned that report under Section 107/116 Cr.P.C. against the parties had also been furnished. It was then recommended that with regard to plot no. 127, Gauri Nisf a preliminary order under Section 145(1) and an attachment order under Section 146(1) Cr.P.C. be passed. This report dated 19.1.2014 of the police was forwarded to the Magistrate on 21.1.2014. It is admitted by the parties that this was the sole police report that was considered by the Magistrate while passing the order dated 22.1.2014. The preliminary order passed by the Magistrate on 22.1.2014 under Section 145(1) Cr.P.C. reveals that the Magistrate has relied upon the report of the Station House Officer of P.S. Robertsganj, District Sonbhadra dated 21.1.2014 in which it is reported that in respect of plot no. 127 situated at Mauza Mahuliya having an area of 0.3950 Hectare the parties are at dispute with regard to the possession of the same and there is a lot of tension and at any point of time, a serious incident can take place with regard to the possession of the same and they can assault each other leading to murder and rioting which would lead to breach of peace. The Magistrate has stated that he is satisfied on perusal of the report of the Station House Officer, P.S. Robertsganj that with regard to possession of the plot no. 127 situated at Mauja Mahuliya, both parties are disputing and serious offences can be committed including murder and rioting which would lead to breach of peace. Therefore, the Magistrate directed that with regard to disputed plot no. 127 the parties appear before him and place their claims. Subsequently, the Magistrate proceeded to attach plot no. 127 on the basis of the report of the Station House Officer, Robertsganj dated 21.1.2014 situated at Mauza Mahuliya and further directed handing over the property in dispute to a receiver. 8. Before the Sessions Judge, the case of the O.P. Nos. 127 the parties appear before him and place their claims. Subsequently, the Magistrate proceeded to attach plot no. 127 on the basis of the report of the Station House Officer, Robertsganj dated 21.1.2014 situated at Mauza Mahuliya and further directed handing over the property in dispute to a receiver. 8. Before the Sessions Judge, the case of the O.P. Nos. 2 and 3 was that they are the recorded bhoomidhar with transferable rights and were in possession of the property in dispute and the Station House Officer, Robertsganj, in collusion with the revisionist, had filed a report which was incomplete without making a spot inspection. The revisional court below observed that the Magistrate has passed the orders dated 22.2.2014 without recording his satisfaction as to the necessity/emergency existing that would warrant the passing of such an order. 9. The preliminary order under Section 145(1) and order of attachment under Section 146(1) Cr.P.C. passed by the Magistrate on the basis of the alleged report dated 21.1.2014 of the Station House Officer, Robertsganj in which apparently the description of the property is given of the plot no. 127 at Mauja Mahuliya having an area of 0.3950 Hectares, which report is also stated to reveal that with regard to the possession of the aforesaid plot rioting and murder could also takes place. However, a perusal of the police report dated 19.1.2014 that has been enclosed as Annexure No.-8 of the affidavit reveals that it is made by a Sub-Inspector of P.S. Robertsganj and the plot no. 127 is stated to be situated at village Gauri Nisf. In this report neither is the area of the plot is mentioned nor has it been specified that the parties are likely to commit offences of rioting and murder. In the reply filed by the revisionist before the Magistrate (Annexure No. 10 to the affidavit) in paragraph no. 12, it is stated that in the police report wrongly mentions the name of the village as Gauri Nisf in place of Mauza Mahuliya. In the reply filed by the revisionist before the Magistrate (Annexure No. 10 to the affidavit) in paragraph no. 12, it is stated that in the police report wrongly mentions the name of the village as Gauri Nisf in place of Mauza Mahuliya. It is, therefore, apparent that the report of the police recommending action under Section 145(1) and 146(1) Cr.P.C. that has been enclosed as Annexure No.-8 to the affidavit does not fit the specific description in the order dated 22.1.2014 of the Magistrate and neither do the grounds mentioned in the order of the Magistrate of imminent rioting and murder between the parties form part of the aforesaid police report dated 19.1.2014. 10. In this view of the matter, I do not find any illegality or infirmity in the order dated 17.3.2018 passed by the Sessions Judge in Criminal Revision No. 2 of 2016 which has been impugned in the present petition. The revisional court below has set aside the orders dated 22.1.2014 passed by the Magistrate and has left it open to the Magistrate to pass necessary orders in accordance with law. 11. For the reasons aforesaid, this revision lacks merit and is, accordingly, dismissed. The interim order is vacated. 12. However, it is made clear that the observations made herein are only for purpose of adjudication of this case and shall not be taken by the court below as opinion on merits of the case.