# Hasina Khatoon v. The State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 974
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-03
- **Case number:** Application U/S 482. No. 7121 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hasina-khatoon-v-the-state-of-u-p-ors-49367
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 145 - Procedure where
dispute concerning land or water is likely
to cause breach of peace, Section146 -
Power to attach subject of dispute and to
appoint
receiver
-
once
the
civil
proceedings is pending before the court of
civil competence and interim order is
passed protecting the property in question
therein, the proceedings under Section
145 Cr.P.C. is not permissible. (Para - 4,14
)

Property Dispute - Title Suite Pending on Land -
Litigations ongoing before Consolidation Officer
and civil court - direction to maintain status quo
- Interim protection granted - quashing of -
order passed by SDM under section 145/146 .
(Para -2,12,17)

HELD:- Impugned order passed by Sub
Divisional Magistrate set aside. (Para -18 )

Application u/s 482 Cr.P.C. allowed. (E-7)

LIST OF CASES CITED:-

## Text

974 INDIAN LAW REPORTS ALLAHABAD SERIES
adjudicated earlier. Such act drains the
funds of public exchequer that too of no
significant avail.

7. This Court feels that adequate
exercise for counseling of officers, who
remain oblivion on the recent settled issues
by the Courts, be expounded to them on
regular intervals by issuing circulars for the
purpose, with the assistance and guidance
of panel State Law Officers who are paid
hefty amount from the State Exchequer to
render their services in order to protect the
interest of State who is ultimately meant for
public at large. It would certainly save the
precious time of the Courts also.

8. In view of the above, the Secretary,
Panchayat Raj, U.P., Lucknow is required
to issue circular in this regard under the
intimation to this Court. Immediately on
receipt of the circular, Registrar General of
this Court shall ensure that same be placed
on record of this case.

9. With above observations and
directions, the writ petition stands allowed.

10. No order as to costs.

11. Registrar (Compliance) shall place
this order before the Registrar General of
this Court, who shall communicate it to the
Secretary, Panchayat Raj., U.P., Lucknow
forthwith, and place the circular on record,
as directed above.

12.

Copy
of
this
order
be
communicated to the learned Advocate
General, U.P., also.
----------
(2023) 10 ILRA 974
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.10.2023
BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 7121 of 2023

Hasina Khatoon ...Applicant
Versus
The State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Diwakar Singh, Dinesh Kumar Srivastava

Counsel for the Opposite Parties:
G.A., Ram Kumar Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 145 - Procedure where
dispute concerning land or water is likely
to cause breach of peace, Section146 -
Power to attach subject of dispute and to
appoint
receiver
-
once
the
civil
proceedings is pending before the court of
civil competence and interim order is
passed protecting the property in question
therein, the proceedings under Section
145 Cr.P.C. is not permissible. (Para - 4,14
)

Property Dispute - Title Suite Pending on Land -
Litigations ongoing before Consolidation Officer
and civil court - direction to maintain status quo
- Interim protection granted - quashing of -
order passed by SDM under section 145/146 .
(Para -2,12,17)

HELD:- Impugned order passed by Sub
Divisional Magistrate set aside. (Para -18 )

Application u/s 482 Cr.P.C. allowed. (E-7)

LIST OF CASES CITED:-

1. Ram Sumer Puri Mahant Vs St. of U.P. & ors.,
(1985) 1 SCC 427

2. Mahant Ram Saran Dass Vs Harish Mohan &
anr.,
(2001)
10
SCC
758
10 All. Hasina Khatoon Vs.The State of U.P. & Ors.
975
(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri D.K. Srivastava and
Diwakar Singh, learned counsels for the
applicant, Sri Ram Kumar Singh, learned
counsel for the opposite party nos. 2 to 6,
Sri Nirmal Kumar Pandey, learned A.G.A.
for the State and perused the material
placed on record.

2. Instant application has been filed
with the prayer to quash the order dated
29.4.2023 passed by the Sub Divisional
Magistrate,
Sirauli
Gauspur,
District
Barabanki in Case No.886 of 2023 (Mohd.
Ayub Vs. Hasina Khatoon) under Section
145/146 Cr.P.C. for Gata No.1438 area
0.21 hectare, and Gata No.1715 area 0.402
hectare, situated at Kasba Ichauli, Police
Station Tikait Nagar, Pargana Dariyabad,
Tehsil
Sirauli
Gauspur,
District
Barabanki.

3. Learned counsel for the applicant
submits that admittedly, there is a dispute
with respect to property, namely, Gata
No.1438 area 0.21 hectare and Gata
No.1715 area 0.402 hectare situated at
Kasba Ichauli, District Barabanki and
there are several set of litigation before
the Civil Court as well as Consolidation
Officer, which are pending consideration
and has further drawn attention towards
the application dated 10.7.2015, which
was moved by the applicant before the
Consolidation Officer, Ram Sanehi Ghat,
Barabanki and pointed out that on the
aforesaid application, the Consolidation
Officer passed an order on 10.7.2015 and
directed the parties to maintain status quo.
Further submitted that the order dated
10.7.2015 is still in operation and has also
drawn attention towards questionnaire
dated 16.5.2023 obtained by the applicant
dated 16.5.2023, wherein it is evident that
the order dated 10.7.2015 is still operative.

4. Adding his arguments, he submits
that a civil suit was filed by the applicant
wherein the application 6C was rejected on
the ground that the matter is pending before
the Consolidation Officer to decide the
claim with respect to the ownership of land
in question and there is no balance of
convenience in favour of the applicant. He
next submits that in the meantime, the
opposite party nos.2 to 6 moved an
application on 31.1.2020 under Section 145
of Cr.P.C. for the same Gata numbers and
thereafter, calling the report, the Sub
Divisional Magistrate passed an order and
attached the said land. He submits that the
settled principle of law has been ignored
that once there is an interim protection
granted by the court of civil competence,
the power under Section 145 Cr.P.C. shall
not be invoked by the Sub Divisional
Magistrate.

5. In support of his contention, he has
placed reliance upon the Judgments of the
Apex Court rendered in Ram Sumer Puri
Mahant Vs. State of U.P. and others,
(1985) 1 SCC 427 and Mahant Ram
Saran Dass Vs. Harish Mohan and
another, (2001) 10 SCC 758.

6. Para 2 of Judgment rendered in
Ram Sumer Puri Mahant (supra) reads as
under:-

"Challenge in this application is
to the order of the Allahabad High Court
refusing to interfere in its revisional
jurisdiction against an order directing
initiation of proceedings under Section
145, Cr.P.C. (Code for short), and
attachment of the property at the instance
of respondents 2-5. Indisputably, in respect
976 INDIAN LAW REPORTS ALLAHABAD SERIES
of the very properly there was a suit for
possession and injunction being Title Suit
No. 87/75 filed in the Court of the Civil
Judge at Ballia wherein the question of title
was gone into and by judgment dated
February 28, 1981, the said suit was
dismissed. The appellant was the defendant
in that suit. According to the appellant
close relations of respondents 2-5 were the
plaintiffs and we gather from the counter
affidavit filed in this Court that on appeal
has been carried from the decree of the
Civil Judge and the same is still pending
disposal before the appellate court. The
assertion made in the Petition for Special
Leave to the effect that respondents 2 to 5
are close relations has not been seriously
challenged in the counter affidavit. When a
civil litigation is pending for the property
wherein the question of possession is
involved and has been adjudicated, we see
hardly any justification for initiating a
parallel criminal proceeding under Section
145 of the Code. There is no scope to doubt
or dispute the position that the decree of
the Civil Court is binding on the criminal
court in a matter like the one before us.
Counsel for respondents 2-5 was not in a
position to challenge the proposition that
parallel
proceeding
should
not
be
permitted to continue and in the event of a
decree of the Civil Court, the criminal
court should not be allowed to invoke its
jurisdiction particularly when possession is
being examined by the civil court and
parties are in a position to approach the
civil court for interim orders such as
injunction or appointment of receiver for
adequate protection of the property during
dependency of the dispute. Multiplicity of
litigation is not in the interest of the parties
nor should public time be allowed to be
wasted over meaningless litigation. We are,
therefore,
satisfied
that
parallel
proceedings should not continue and the
order of the learned Magistrate should be
quashed. We accordingly allow the appeal
and quash the order of the learned
Magistrate by which the proceeding under
Section 145 of the Code has been initiated
and the property in dispute has been
attached. We leave it open to either party to
move the appellate judge in the civil
litigation for appropriate interim orders, if
so advised, in the event of dispute relating
to possession."

7. Para 2 of Judgment rendered in
Mahant Ram Saran Dass (supra) reads as
under:-

"2. The short question that arises
for consideration is whether in the facts and
circumstances of the present case, a civil
suit for declaration under Section 92 of the
Code of Civil Procedure being pending
before the competent forum, the civil court,
the respondent was entitled to invoke the
jurisdiction of the Magistrate under Section
145 CrPC, and the Magistrate was entitled
to initiate the proceedings and pass any
interim order of appointment of receiver
therein. It is not disputed that in the civil
suit itself the court has passed interim order
of injunction, and put certain restrictions on
the parties with regard to alienation of the
property in question. It is true that the
applicant before the Magistrate, has not
been arrayed as party-defendant in the civil
suit, but that will not alter the position in
any manner since in our view the civil
court being in seisin of the matter, any
appropriate relief could be obtained from
the civil court itself and the Magistrate had
no jurisdiction in the case in hand to
entertain the application under Section 145,
and to pass any orders thereon. In the
circumstances, the impugned order of the
High Court as well as the proceedings
initiated before the Magistrate under
10 All. Hasina Khatoon Vs.The State of U.P. & Ors.
977
Section 145 CrPC stand set aside. The
appeal is disposed of accordingly. Needless
to mention the status quo as of today to be
maintained to enable the parties to move
the civil court for appropriate orders."

8. Placing reliance on the above-said
Judgment, he argued that the case of the
applicant is identical and, therefore, it is
squarely covered. He next added that it is
undisputed fact that a title suit is pending
before the Consolidation officer wherein an
interim protection has been granted on
10.7.2015 on an application moved by the
applicant and, therefore, the Sub Divisional
Magistrate has erroneously passed the order
dated 29.4.2023. Therefore, submission is
that the impugned order may be set aside.

9. On the other hand, learned counsel
for the opposite party no.2 has vehemently
opposed the contention aforesaid and
submits that so far as the application dated
10.7.2015 is concerned, the same has not
been filed under any prescribed provisions
and the said application was moved by the
applicant for being impleaded as a party in
the case pending before the Consolidation
Officer but the same was rejected vide
order dated 1.4.2016. Further in Civil Suit
No.1693 of 2015 filed by applicant, the
interim relief application has also been
rejected on 16.12.2022.

10. Referring the aforesaid, he
submits that once the application has been
rejected, then the order dated 10.7.2015
passed by the Consolidation Officer has no
meaning at all and the order dated
10.7.2015 merges with the order of
dismissal passed on the application No. 6C
and, thus, the Sub Divisional Magistrate
has rightly invoked the power under
Section 145 of Cr.P.C. and has also rightly
passed the order under Section 146 of the
Cr.P.C., attaching the property in question,
as there was apprehension of breach of
peace
and
thus,
no
interference
is
warranted.

11. Learned counsel for the State has
also vehemently opposed the submissions
aforesaid and submitted that the impugned
order has rightly been passed and the same
is not liable to be interfered.

12. Having heard learned counsel for
the parties and after perusal of the material
placed on record, it transpires that there is a
dispute with respect to property, namely,
Gata No.1438 area 0.21 hectare and Gata
No.1715 area 0.402 hectare, situated at
Kasba Ichauli, District Barabanki and
certain litigations are going on, before the
Consolidation Officer as well as the civil
court.

13. On 10.7.2015 an application was
moved
by
the
applicant
wherein
Consolidation Officer passed an order on
10.7.2015 and directed the parties to
maintain status quo. It has been brought in
the knowledge of this Court that the
applicant has also moved an application for
impleading him as a party in the
consolidation case but the same was
rejected. Fact remains that the order of
rejection was again challenged before the
Deputy
Director
of
Consolidation
whereafter the rejection order was set aside
and the matter has been remitted back to be
heard afresh.

14. When this Court examines the
aforesaid facts of the case and submission
of the parties, it emerges that the order
dated 10.7.2015 is still operative, as the
application for impleading the applicant
was rejected but later on the same was set
aside
by
the
Deputy
Director
of
978 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation
and
the
order
dated
10.7.2015 is still intact. This Court has also
noticed the fact that the applicant has
annexed the copy of the questionnaire,
wherein it has been disclosed that the order
dated 10.7.2015 is still continuing.

15. It is trite law that once the civil
proceedings is pending before the court of
civil competence and interim order is
passed protecting the property in question
therein, the proceedings under Section 145
Cr.P.C. is not permissible. This view has
been taken by the Apex Court in the cases
of Ram Sumer Puri Mahant (supra) and
Mahant Ram Saran Dass (supra).

16. This Court is also not unmindful to one
of the aspect of the law that there cannot be
a strait-jacket formula for coming to the
conclusion that whether there is actual
apprehension of breach of peace or
emergent situation so as to invoke the
power under Section 145 Cr.P.C. but if title
is clear and there is no dispute regarding
possession and the protection has already
been granted under a civil proceeding with
respect to property in question, the power
under Section 145 of Cr.P.C. cannot be
exercised.

17. So far as the instant matter is
concerned, a title suite is pending regarding
the
land
in
question,
before
the
Consolidtion Officer and vide order dated
10.7.2015, parties are directed to maintain
status quo and, thus, admittedly, there is an
interim protection and, therefore, the case of
the applicant is squarely covered with the
Judgment and ratio as discussed above.

18. In view of the above submissions and
discussions,the
impugned
order
dated
29.4.2023 passed by the Sub Divisional
Magistrate, Sirauli Gauspur, District Barabanki
in Case No.886 of 2023 are hereby set aside.

19. It is expected that the parties shall
follow the order dated 10.7.2015 passed by the
Consolidation Officer until it remains in
operation and it is open for the opposite party
no.2 that if he has any grievance regarding any
of proceedings before the court below, he may
approach
the
appropriate
forum
while
challenging the same. Further legal recourse is
always open to the parties.

20. With the aforesaid observations,
instant application is hereby allowed.

21. It is clarified that the observations
made hereinabove, would have no bearing on
the merits of the case, pending before any court
of law.
----------
(2023) 10 ILRA 978
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2023

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI,
J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 84 of 2017

Shivnath ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ramji Singh Patel, Sri Swayamanand
Sisodiya, Sri Vijay Gopal

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 498-A - Indian Evidence
Act, 1872 - Section 134 - Criminal Appeal