# Anoop Keshari @ Anoop Chowdhary v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 84
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-27
- **Case number:** Application U/S 482 No. 2331 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anoop-keshari-anoop-chowdhary-v-state-of-u-p-ors-45805
- **Pages:** 5

## Headnote

A. Criminal Law - Criminal Procedure Code
(2 of 1974) - Section 145 - Section 145 -
deals with dispute concerning land likely to
cause breach of peace - however dispute
regarding office of Management of the Society,
registered under Societies Registration Act,
cannot be held
as a dispute regarding
ownership
and
possession
of
immovable
property
-
Executive
Magistrate
has
no
jurisdiction to decide such dispute u/s 145 CrPC

Immovable property in dispute was a Arya
Samaj
Temple,
a
property
of
religious
6 All. Anoop Keshari @ Anoop Chowdhary Vs. State of U.P. & Ors.
85
endowment - Held - it is not a property of either
of the party but is a property dedicated to
Almighty and open for worship by all - no
question of dispute regarding ownership or
possession of the property is there - dispute was
only regarding office of Management of the
Society - such dispute can never be held as a
dispute regarding ownership and possession of
immovable property - City Magistrate without
jurisdiction passed order of attachment of the
Temple as well School Property of Arya Samaj
Temple u/s 146(1) Cr.P.C. - orders passed by
the City Magistrate u/s 145(1) and 146(1)
Cr.P.C. quashed (Para 7, 8, 9)

B. Criminal Law - Criminal Procedure
Code (2 of 1974) - Section 145, 146 -
Condition precedent for passing order by
the Magistrate u/s 145 Cr.P.C. is that the
Magistrate has to give proper reasons for
his satisfaction for invoking jurisdiction u/s
145 Cr.P.C. - order to be passed after
application of mind - Application of judicial
mind - meaning - an order can be held to
be passed on application of judicial mind
only
when
it
contains
both
sides'
contentions and the documents filed by
them in support of their respective claim &
the reasons for taking the decision. (Para 7,
8)

Application allowed. (E-5)

## Text

84 INDIAN LAW REPORTS ALLAHABAD SERIES
the CrPC. We hence allow the appeal and
set aside the judgment of the High Court. In
consequence, the complaint, being C.R.P
No.
27/2004
shall
stand
quashed."
(Emphasis supplied)

6. He further relied upon various orders
passed by a co-ordinate bench of this Court
where on the basis of similar contention relief
has been granted to the applicant. Details of said
petitions are as follows: (i) Criminal Misc. Writ
Petition No.25369 of 2013 dated 19.11.2019;
(ii) Criminal Misc. Writ Petition No.24377 of
2013 dated 19.11.2019; (iii) Criminal Misc.
Writ Petition No.24632 of 2013 order dated
19.11.2019; (iv) Criminal Misc. Writ Petition
No.25491 of 2013 order dated 19.11.2019.

7. Shri. Ajay Kumar Sharma, learned
counsel appearing on behalf of the State has not
disputed the legal position as submitted by the
learned counsel for the applicant.

8. From perusal of the contents of the
notice and complaint, it is evident that the
notice as well as the complaint was filed against
the applicant in his individual capacity.
Company was not arrayed as a party neither in
the notice nor in the complaint. Hon'ble Apex
Court in the case of Aneeta Hada (supra) has
held that for maintaining the prosecution under
Section 141 of the Act, arraigning of a company
as an accused is imperative.

9. Judgment passed in Aneeta Hada
(supra) is also followed in the case of
Himanshu (supra), wherein the Apex Court
has dismissed the complaint, since company
was not arraigned as an accused. Present case is
squarely covered by the judgment passed in
Aneeta Hada (supra) and Himanshu (supra).

10. In view of the above discussions, this
application is allowed and the order dated
17.7.2013 passed by A.C.J.M., Court No.2,
Muzaffarnagar in Criminal Complaint Case
No.152/9 of 2013, "Pawan Kumar Goel Vs.
Devendra Kumar Garg" and order dated
05.12.2015 passed by learned Additional
Sessions Judge, Court no.10, Muzaffarnagar in
Criminal Revision No.290 of 2013, 'Devendra
Kumar Garg Vs. Pawan Kumar Goel', as well
as the entire proceedings of Criminal Complaint
Case No.152/9 of 2013, 'Pawan Kumar Goel
Vs. Devendra Kumar Garg' under Section 138
of N.I.Act, Police Station-Civil Lines, DistrictMuzaffarnagar, presently pending before the
Court of learned A.C.J.M. IInd, Muzaffarnagar
are hereby quashed.
----------
(2020)06ILR A84
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.02.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 2331 of 2020

Anoop Keshari @ Anoop Chowdhary
 ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Vimlendu Tripathi

Counsel for the Opposite Parties:
A.G.A., Sri Ram Vishal Mishra

A. Criminal Law - Criminal Procedure Code
(2 of 1974) - Section 145 - Section 145 -
deals with dispute concerning land likely to
cause breach of peace - however dispute
regarding office of Management of the Society,
registered under Societies Registration Act,
cannot be held
as a dispute regarding
ownership
and
possession
of
immovable
property
-
Executive
Magistrate
has
no
jurisdiction to decide such dispute u/s 145 CrPC

Immovable property in dispute was a Arya
Samaj
Temple,
a
property
of
religious
6 All. Anoop Keshari @ Anoop Chowdhary Vs. State of U.P. & Ors.
85
endowment - Held - it is not a property of either
of the party but is a property dedicated to
Almighty and open for worship by all - no
question of dispute regarding ownership or
possession of the property is there - dispute was
only regarding office of Management of the
Society - such dispute can never be held as a
dispute regarding ownership and possession of
immovable property - City Magistrate without
jurisdiction passed order of attachment of the
Temple as well School Property of Arya Samaj
Temple u/s 146(1) Cr.P.C. - orders passed by
the City Magistrate u/s 145(1) and 146(1)
Cr.P.C. quashed (Para 7, 8, 9)

B. Criminal Law - Criminal Procedure
Code (2 of 1974) - Section 145, 146 -
Condition precedent for passing order by
the Magistrate u/s 145 Cr.P.C. is that the
Magistrate has to give proper reasons for
his satisfaction for invoking jurisdiction u/s
145 Cr.P.C. - order to be passed after
application of mind - Application of judicial
mind - meaning - an order can be held to
be passed on application of judicial mind
only
when
it
contains
both
sides'
contentions and the documents filed by
them in support of their respective claim &
the reasons for taking the decision. (Para 7,
8)

Application allowed. (E-5)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This application u/s 482 Cr.P.C. has
been filed by applicant Anoop Keshari alias
Anoop Chowdhary against State of U.P.
and three others with a prayer for quashing
impugned order dated 24.12.2019 passed
u/s 146(1) Cr.P.C. as well as impugned
order dated 28.11.2019 passed u/s 145(1)
Cr.P.C. by the City Magistrate, Allahabad,
in Case No. D-201902030007120 of 2019,
Pratap Narain Mishra Vs. Anoop Keshari
and
others,
P.S.
Kotwali,
District
Allahabad, as well as entire proceeding of
above mentioned case.

2. Learned counsel for applicant
argued that the matter in question was not
with regard to ownership and possession of
any individual immovable property. Rather
property in question is of Arya Samaj
Temple having two colleges running with it
and it is belonging of Arya Pratinidhi
Sabha, U.P., Lucknow, under general
superintendence
of
Sarvdeshik
Arya
Pratinidhi Sabha, New Delhi, for whole of
India since mid of 19th century and
everybody is having right and use to
worship in above temple. There occurred
no apprehension of breach of peace
regarding above Arya Samaj Temple
because O.P. No. 2 as well as applicant use
to visit and worship in above temple. The
dispute
was
regarding
office
of
management and O.P. No. 2 was Secretary.
In the year 2017 election of office bearers
took place wherein the applicant was
elected as Mantri to manage the affairs of
above Arya Samaj Temple and its allied
subject at Allahabad. This was duly
recognized by State Unit at Lucknow.
Representation was made by O.P. No. 2,
but it was rejected by State Level Unit. In
between two cases regarding criminal
breach of trust and other mismanagement
of property of Society, Arya Pratinidhi
Sabha, was got lodged against O.P. No. 2
and one Pawan Jaiswal, wherein other coaccused preferred a proceeding u/s 482
Cr.P.C. before this court, which was
rejected. Then after a Special Leave
Petition was filed before Apex Court where
the S.L.P. was rejected. Only after this
failure to have some relief, manipulation
was made by O.P. No. 2 under connivance
with local police as well as Executive
Magistrate. Thereafter a proceeding u/s
107/116 Cr.P.C. was undertaken and on
this, report for proceeding u/s 145 Cr.P.C.
was submitted before the City Magistrate
wherein likelihood of breach of peace in
86 INDIAN LAW REPORTS ALLAHABAD SERIES
Arya Samaj Temple, Chowk, Allahabad,
was reported and the Magistrate in a
routine way issued notices to both sides
fixing a date. Though, there was no
apprehension of breach of peace nor it was
an
individual
immovable
property,
requiring any interference by Executive
Magistrate u/s 145 Cr.P.C. Moreso, a civil
suit was also pending on behalf of O.P. No.
2
for
determination
of
right
of
Secretaryship of Management Committee
of Arya Samaj Temple, Chowk, Allahabad,
and its allied property. But the learned
Magistrate, without applying his judicial
mind, passed the impugned order u/s
145(1) Cr.P.C. Both sides appeared before
the City Magistrate, therein, documents
with reply were filed, wherein, it was
specifically mentioned that no dispute
regarding ownership or possession of
immovable
property
of
Arya
Samaj
Temple, Chowk, Allahabad, is there,
because the Temple is under ownership of
Almighty and worship of deities are done
by each member belonging to Arya Samaj.
The dispute was regarding office of
management of Temple and it is within the
domain of Assistant Registrar, Societies, as
Arya Samaj Temple, Chowk, Allahabad, is
a registered Society registered under
Societies Registration Act. In case there
arises a dispute regarding Management of
the Society, it is to be referred to the Sub
Divisional Magistrate concerned, who will
decide the same. But the learned City
Magistrate
without
making
any
appreciation of facts and law; by giving any
reason, passed the impugned order of
attachment of the Temple as well School
Property of Arya Samaj Temple, Chowk,
Allahabad, under section 146(1) Cr.P.C.
whereby work of receivership has been
assigned to consignee (supurdagar), which
was not within the jurisdiction of the City
Magistrate. The dispute regarding office of
Management of a Society is to be resolved
either by its State Unit or by Central Unit
regarding its internal management or by the
Assistant Registrar, Societies, under the
Societies Registration Act and in case of its
failure, reference is to be made under Rule
4 of the Societies Registration Act to the
Court
of
Sub
Divisional
Magistrate
concerned, who will decide as per rules
given in the Societies Registration Act. But
the learned City Magistrate did not give
any reason and without applying its judicial
mind passed the impugned order of
attachment
u/s
146(1)
Cr.P.C.
and
appointed a receiver. It was a mechanical
order. It is apparently under abuse of
process of law. Hence this application with
above prayer.

3. Learned counsel for O.P. No. 2
vehemently opposed the application with
contention that O.P. No. 2 is elected Secretary
of Committee of Management of Arya Samaj
Temple, Chowk, Allahabad, and he was
rightly in the office of Management, for
which, effort was made by applicant for
dispossessing
him.
Owing
to
which
apprehension of breach of peace was reported
by the police to the Executive Magistrate.
The jurisdiction u/s 145(1) Cr.P.C. was
invoked by the City Magistrate, Allahabad,
following the order of attachment u/s 146(1)
Cr.P.C. It was well in accordance with law
with no abuse of process of law. However, it
is being admitted that the property is of Arya
Samaj Temple, district Unit Allahabad, open
for worship to everybody. The property of
Arya Samaj Temple, unit Allahabad, is
property of Almighty. Hence, there is no
dispute regarding ownership and possession
of the property. Rather the dispute is
regarding office of management of the Unit.
If this Court directs the City Magistrate for
disposal of proceeding then O.P. No. 2 is
having no objection.
6 All. Anoop Keshari @ Anoop Chowdhary Vs. State of U.P. & Ors.
87

4. Learned AGA has vehemently
opposed the application.

5. Section 145 Cr.P.C. provides that
whenever an Executive Magistrate is
satisfied from a report of a police officer or
upon other information that a dispute,
likely to cause a breach of the peace, exists
concerning any land or water or the
boundaries
thereof,
within
his
local
jurisdiction, he shall make an order in
writing, stating the grounds of his being so
satisfied,
and
requiring
the
parties
concerned in such dispute to attend his
Court in person or by pleader, on a
specified date and time, and to put in
written statements of their respective
claims as respects the fact of actual
possession of the subject of dispute.

6. Hon'ble Apex Court in Ram Sumer
Puri Mahant vs State Of U.P. and others,
(1985) 1 SCC 427 has propounded that
when a civil litigation is pending in regard
to some immovable property wherein
question of possession is involved, the
parties in possession to approach civil court
for interim order such as injunction or
appointment of receiver for adequate
protection of the property, during pendency
of suit, then there is no jurisdiction for
initiating a parallel criminal proceeding
under section 145 Cr.P.C. The order made
under section 145 Cr.P.C. deals only with
the factum of possession of party as on a
particular date. It confers no title to remain
in possession of disputed property against
any decision of civil court.

7. Admittedly, immovable property in
dispute is a Arya Samaj Temple, Chowk,
Allahabad. Meaning thereby it is a property
of religious endowment. Admittedly, the
Society, being a registered Society under
Societies Registration Act, is having its full
control by its Divisional Unit for whole of
Division, State Unit of Lucknow for whole
of the State of U.P. and National Unit Delhi
for whole of the nation. Meaning thereby it
is not a property of either of the party. It is
a property dedicated to Almighty and open
for worship by all. Hence no question of
dispute regarding ownership or possession
of the property is there. The dispute is only
regarding office of Management of the
Society. In the impugned order, the
Magistrate, for initiating proceeding u/s
145 Cr.P.C., has written about dispute
regarding ownership and possession of the
property, which is apparently against facts
on record. This reveals that the Magistrate,
while passing the impugned order, has not
applied its judicial mind. This order is with
no reason. Whereas initial order is to be
passed with reason, as has been mentioned
in section 145 Cr.P.C. The condition
precedent
for
passing
order
by
the
Magistrate is that the Magistrate has to give
proper reasons for his satisfaction for
invoking jurisdiction u/s 145 Cr.P.C. But in
the impugned order there is no reason at all.
On this score only the impugned order u/s
145(1) Cr.P.C. is not to be sustained.

8. Regarding second impugned order
u/s 146(1) Cr.P.C., the parties appeared
before the Magistrate, they filed their reply
and
documents
in
support
of
their
contentions. What were the documents,
how it was appreciated, what questions
were
involved,
what
were
facts
of
documents, what were contentions of
parties have not been mentioned in the
impugned order. It itself shows that the
Executive
Magistrate,
while
passing
impugned orders u/s 145(1) Cr.P.C. as well
as u/s 146(1) Cr.P.C., has not followed the
mandate
of
Legislature
given
under
sections 145 and 146 Cr.P.C. Order of this
character can never be said to be an order
88 INDIAN LAW REPORTS ALLAHABAD SERIES
after application of judicial mind. There is
principle of legislative expectancy that
when a dispute is there, both sides are filing
their reply and documents in support of
their claim then the man, who is making
decision, has to mention both sides'
contentions and the documents filed by
them in support of their respective claim,
then the reasons for taking the decision and
then only the order can be held to be on
application of judicial mind. Hence both
the impugned orders are not to be
sustained, as such they are under abuse of
process of law.

9. The dispute regarding office of
management
of
Society,
registered
under Societies Registration Act, can
never be held as a dispute regarding
ownership and possession of immovable
property and for this Legislature has
given Societies Registration Act with
rules framed there under. Assistant
Registrar has the authority to decide the
dispute regarding management of office
of Society. In case of its failure,
reference is to be made to the Sub
Divisional Magistrate of the area under
Rule of the above Act for adjudication.
But by these impugned orders, under
challenge, the City Magistrate has
decided to take over possession of the
property
and
has
appointed
some
receiver for making management of the
above property, which was of Almighty
having
no
dispute
regarding
its
ownership and possession. Under garb
of attachment order, receiver has been
appointed, which power never vests
with
the
Executive
Magistrate,
particularly when a civil suit has
already been filed by O.P. No. 2. There
is a chapter under Code of Civil
Procedure for appointment of receiver
to protect the property in dispute.
Hence this application merits to be
allowed.

10. The application under section 482
Cr.P.C. is allowed and both the impugned
orders passed by the City Magistrate u/s
145(1) and 146(1) Cr.P.C. are hereby
quashed with this specific mention that an
officer of City Magistrate rank i.e. a senior
Executive officer should be careful in
future in making such type of decision
without any reason in order.

11. The file is being remanded back to
the Magistrate concerned to make decision
in accordance with law, provisions of Code
of
Criminal
Procedure
along
with
precedents of Apex Court and this court.
----------
(2020)06ILR A88
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.02.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

U/S 482/378/407 No. 2801 of 2012

Smt. Archana Gupta & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Arun Sinha, Riyaz Ahmad

Counsel for the Opposite Parties:
Govt. Advocate, Vinay Kumar Singh

A. Criminal Law - Indian Penal Code (45 of
1860) - Section 415- Section 420 - Offence
of Cheating - distinction between mere breach
of contract & the offence of cheating - for
cheating - fraudulent or dishonest intention to
cheat/ deceive must be shown to exist right at
the time of making of promise -"mens rea" on
the part of accused must be established at the