# Irfan Ali v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 1685
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-05
- **Case number:** Criminal Misc. Writ Petition No. 9505 of 2013
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/irfan-ali-v-state-of-u-p-ors-51588
- **Pages:** 10

## Headnote

Criminal Procedure Code, 1973 - Sections
145 & 146 - Constitution of India,1950 -
Article 227 -dispute relating to possession -
attachment of property - revisional court setting
aside order of Executive Magistrate - claim of
ownership based on sale deeds - title based on
Land Acquisition Reference alleged to be forged
- pendency of civil suit - no effective interim
order of civil court indicating possession -
apprehension of breach of peace - Magistrate
concerned with maintenance of peace and
tranquillity - revisional court not powerless to
set aside findings ignoring apparent facts and
evidence - no manifest or patent violation of
law - no interference required .

Writ petition dismissed. (E-9)

Cases Cited:

## Text

3 All. Irfan Ali Vs. State of U.P. & Ors.
1685
presumption of fairness in due discharge of
his official duties.

16. This Court restraints itself from
passing any further remarks against the
respondent no. 2 but a direction is being
issued to the respondent no.1, Principal
Secretary,
Department
of
Home,
Government of U.P., Lucknow that he
should ensure that the public servants
exercising powers of the State should
remain within the bounds of law and
violation of law may entail disciplinary
proceedings against them.

17. The impugned notice is hereby
quashed.

18. The writ petition is, accordingly,
allowed with cost of Rs. 20,000/- payable
to the petitioner by the State within two
months.

19. Registrar(Compliance) is directed
to communicate this order to respondent
nos. 1 and 2 within a week.

20. Respondent no. 1 will report
compliance
of
this
order
to
the
Registrar(Compliance) of this Court within
ten weeks.
----------
(2024) 3 ILRA 1685
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Misc. Writ Petition No. 9505 of 2013

Irfan Ali ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashish Agrawal

Counsel for the Respondents:
G.A., Sri Anurag Pathak, Sri Swetashwa Agarwal,
Sri Srijan Pandey

Criminal Procedure Code, 1973 - Sections
145 & 146 - Constitution of India,1950 -
Article 227 -dispute relating to possession -
attachment of property - revisional court setting
aside order of Executive Magistrate - claim of
ownership based on sale deeds - title based on
Land Acquisition Reference alleged to be forged
- pendency of civil suit - no effective interim
order of civil court indicating possession -
apprehension of breach of peace - Magistrate
concerned with maintenance of peace and
tranquillity - revisional court not powerless to
set aside findings ignoring apparent facts and
evidence - no manifest or patent violation of
law - no interference required .

Writ petition dismissed. (E-9)

Cases Cited:

1. Radhey Shyam and Another v. Chhabi Nath
and Others, (2015) 5 SCC 423.

2. Mahar Jahan and Others v. State of Delhi and
Others, (2004) 13 SCC 421.

3. Ram Sumer Puri Mahant v. State of U.P. and
Others, AIR 1985 SC 472.

4. Smt. Prema Devi v. State of U.P. and
Another, 2007 (10) ADJ 227.

5. Aman Deep Singh Shishya v. State of U.P.
and Another, 2023:AHC:241628.

6. Sanjai Kumar and Another v. VIth Additional
District Judge, Bareilly and Others, 1996 Cri LJ
2413.

7. Abdul Gafoor v. State of U.P., 1992 JIC 35.

8. Raj Bahadur and Others v. State of U.P. and
Another, Criminal Revision No. 1032 of 1994
(decided on 25 July 1994).

9. Prakash Chand Sachdeva v. State and
Another, AIR 1994 SC 1436.
1686 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Amresh Tiwari v. Lalta Prasad Dubey, 2000
(4) Supreme 665.

11. Mahant Govind Sharan Ji Maharaj v. State of
U.P. and Others, 2023:AHC:196973.

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Ashish Agrawal, learned
counsel for the petitioner, Sri Srijan
Pandey, learned Advocate holding brief for
Sri Swetashwa Agarwal, learned counsel
for the private respondents and Sri R.K.
Gupta, learned AGA for the State.

2. This writ petition has been filed by
the petitioner-Irfan Ali against opposite
party no. 2-Rajeev Gupta and 4 others,
challenging the order passed by the Court
of Session in Criminal Revision No. 286 of
2012 (Rajeev Gupta Vs. Irfan Ali and
others), whereby an order passed by the
Court of Additional City Magistrate dated
29.08.2012 passed under sections 145 and
146 Cr.P.C. was set-aside.

3. The submissions of the petitioner
are as below:-

• The opposite party no. 2-Rajeev
Gupta filed an application before the
Executive Magistrate which gave rise to a
proceeding under sections 145/146 Cr.P.C.
with regard to plot no. A-13, Gandhi
Nagar, Moradabad and the learned Court
of Additional City Magistrate, after hearing
both the sides and perusal of papers on
record, dropped the proceedings and
released the plot in favour of the petitionerIrfan Ali. However, the order rightly
passed by the Additional City Magistrate
was set-aside by the Court of revision.

• The case of the petitioner is that
he acquired the ownership and possession
of the disputed plot on the basis of two
registered sale deeds of 03.06.2011, from
previous owners namely, Mohd. Furkaan,
Mohd. Gurfaan and Mohd. Rizwan, all sons
of Late Mohd. Jaan; this property was
released in favour of aforesaid Mohd. Jaan
in a Land Acquisition Reference No. 70 of
1956 by an order dated 24.03.1960.

•
The
then
S.O.,
Thana
Galshaheed, Moradabad filed a chalani
report on 10.06.2011, requesting the City
Magistrate for attatchment of disputed
property i.e., plot no. A-13 part of gata no.
124, area 381.51 square meters; The
Additional City Magistrate issued notice
against them i.e., Irfan Ali and 3 others
under section 145(1) Cr.P.C. by order
dated 15.06.2011; the court concerned
passed another order the same day under
section 146(1) Cr.P.C., directing for
attachment and for handing over the
possession to a receiver.

• Earlier, the opposite party no. 2
had filed an Original Suit no. 506 of 2011,
challenging the two sale deed dated
03.06.2011 executed in favour of the
petitioner, which is pending.

• Though the plaintiff opposite
party no. 2-Rajeev Gupta also made a
prayer for injunction, but no injunction had
been granted to him;

• The petitioner filed objections
against the proceedings under sections 145
and 146 Cr.P.C.

• During the pendency of the
proceedings, the opposite party no. 2 had
filed an application under section 145(5)
Cr.P.C. expressing that no longer any
apprehension of breach of peace existed,
therefore the proceedings may be dropped
and the property may be released; this
application was moved on 22.06.2011;

• The contention is that the claim
of the opposite party no. 2 having been
based on unregistered, unstamped title
deed dated 27.08.1957, allegedly executed
3 All. Irfan Ali Vs. State of U.P. & Ors.
1687
by the Moradabad Cooperative Housing
Society in favour of father of opposite party
no. 2, no reliance could be placed on the
same and therefore opposite party no. 2
has no rights from such documents.

• The Additional City Magistrate,
after considering all the material, rightly
dropped the proceeding and released the
same in favour of the petitioner; the
property was attached and handed over to
a receiver from possession of Irfan Ali (the
petitioner), therefore rightly released to
him.

• Another ground which has been
taken in this writ petition is that the court
of revision had stayed the operation of
impugned order dated 15.06.2011, which
was being extended from time to time but
was not extended after 12.07.2012, hence
the finding of the revisional court on this
point is not sustainable.

• The parties were asserting that
there existed no longer any apprehension
of breach of peace; the High Court in an
Application u/s 482 No. 40653 of 2011,
directed the Magistrate to decide the
proceeding pending before it, within a
period of three months, therefore the
Magistrate decided and dropped the same
by order dated 29.08.2012.

•
The
revisional
court
has
wrongly held that the Magistrate is not
competent to drop the proceeding and that
it had no jurisdiction to go into the
questions of facts, as regard Land
Acquisition Reference No. 70 of 1956; the
application moved under section 145(5)
Cr.P.C. was pending and not dismissed.

• A civil suit no. 506 of 2011 was
also pending, therefore the learned trial
court/SDM rightly released the same in
favour of the petitioner.

• The revisional court is not at all
justified in setting aside the order passed
by the learned Magistrate and gave
contrary finding which are perverse.

• Had the revisional court of a
different view, it could have remanded the
matter
to
the
Magistrate
for
fresh
consideration;
the
argument
of
the
petitioner is that the proceeding under
section 145 Cr.P.C. continued for about
two years, but later on lost its significance
in view of civil suits and non-existence of
apprehension of breach of peace.

4. The submissions, on the other
hand, of opposite party no. 2 (the main
contesting party) in nutshell are as below:-

• The petitioner's claims title and
ownership of plot no. A-13 part of Gata no.
124 on the basis of copy of an order of
Land Acquisition Reference No. 70 of 1956
dated 24.03.1960 which is patently a
forged and fabricated document, a fact
which is revealed from perusal of the paper
i.e., a certified copy obtained by the
answering opposite party no. 1, which is
annexed
with
the
counter
affidavit,
therefore he lodged an FIR case crime no.
156 of 2011 under sections 147, 420, 468,
504, 506 IPC, in which the investigating
officer, after collection of evidence, filed a
chargesheet
against
several
persons
including the petitioner-Irfan Ali.

• During the investigation, it was
found that plot no. A-13 has been falsely
shown after manipulation in the order; the
criminal case is pending against the
accused persons.

• In the above circumstances, two
sale deed dated 03.06.2011 do not convey
any right, title or possession to the
petitioner as no such right, title or
possession could be conveyed on the basis
of non-existent title deed.

• The opposite party no. 2 filed
Original Suit no. 506 of 2011 for
1688 INDIAN LAW REPORTS ALLAHABAD SERIES
cancellation of sale deeds; neither the
vendor nor the purchaser-Irfan Ali have
ever been in actual physical possession of
the disputed plot;

• On the other hand, the facts are
that the Governor of Uttar Pradesh gave
the land to the Moradabad Cooperative
Housing Society, which included Gata no.
124 and one of the plots namely, plot no. A13 was transferred on 27.08.1957 to the
father of answering opposite party no. 2.
The sale deed dated 27.08.1957 is duly
registered in Sub-Registrar Office;

• Though the application under
section
145(5)
Cr.P.C.
moved
on
22.06.2011 was pending but he had moved
a subsequent application on 24.08.2012,
for withdrawal of the aforesaid application
and no order was passed by the Court of
SDM on his subsequent application.

• The Additional City Magistrate
passed the order in haste and ignored
number of facts and circumstances. It did
not let the opposite party no. 2 file
objections, though he had applied for a
week's time.

• The basis on which the orders
were passed, had no legs to stand; it cannot
be said that the revisional court cannot
take note of the fabrication of order dated
24.03.1960 passed in land acquisition
reference of the suit no. 95 of 2007.

• The police acted in collusion
with the petitioner; the impugned orders
suffers from no illegality of the nature as
my be taken note of or may be corrected in
this writ petition.

5. I went through all the material on
record, including the order passed by the
Executive Magistrate as well as the
impugned order passed by the court of
revision. A few things attract attention of
this Court.

(i) very first objection from the
opposite side is that the petitioner has filed
Misc. Writ Petition under Article 226 of the
Constitution, instead he should have filed
Misc. Writ Petition under Article 227 of the
Constitution. On the above issue, I prefer to
place reliance on the judgment of the
Supreme Court in Radhey Shyam and
another vs. Chhabi Nath and others,
(2015) 5 SCC 423. In the above noted case,
the Supreme Court has clearly laid down
that order of judicial court could be
challenged under Article 227 of the
Constitution of India and not under original
writ jurisdiction under Article 226 of the
Constitution of India. In my opinion, there
is no legal hindrance in converting the
petition under Article 226 to one under
Article 227 of the Constitution. I, therefore,
treat this petition as one under Article 227
of the Constitution. The registry shall
assign appropriate number accordingly.

(ii) the petitioner claims of
ownership and possession over the property
is based on two sale deeds dated
03.06.2011, executed by the heirs of Late
Mohd. Jaan and the title of said Mohd. Jaan
is based on Land Acquisition Reference
No. 70 of 1956 order dated 24.03.1960; the
petitioner has filed a copy of order dated
24.03.1960, which is Annexure no. 3. On
the other hand, the opposite party no. 2Rajeev Gupta has filed certified copy of the
same order (paper no. 30 annexed to the
counter affidavit) which clearly shows that
this order was passed in respect of land in
plot no. 59, Khata Khewat no. 33 at Prince
Road, Mauza Bhadaura (which according
to respondent is 800 meters away from the
disputed plot) and this paper conspicuously
does not mention disputed plot A-13 of
Gata no. 124.

(iii) it may also be noted at this
juncture that the opposite party no. 2 had
taken this plea before the revisional court
3 All. Irfan Ali Vs. State of U.P. & Ors.
1689
as well, that the document which formed
the basis of claim of the petitioner is forged
one and that sufficient evidence has been
found by the investigating officer during
the investigation of FIR case crime no. 156
of 2011 under sections 147, 420, 468, 504,
506 IPC, lodged by him and that the
chargesheet has also been submitted against
him and several others.

(iv) the learned court of revision
observed in para no. 14 that even before the
initiation of present proceeding under
section 145 Cr.P.C., the petitioner's side
made earlier attempt to obtain possession
of the dispute and property in an Original
Suit no. 95 of 2007 on the basis of same
document of Land Acquisition Reference
No. 70 of 1956 order dated 24.03.1960 and
how the learned Magistrate ignored the
evidence with regard to very doubtful title
and possession of Irfan Ali and instead
gave a finding on the basis of mere police
report and further observed that had those
documents and evidence considered by the
Magistrate, the finding would have been
different.

(v) In my view, the aforesaid
inference and observation of the learned
revisional court are logical, well founded
and based on evidence which was available
on
record.
The
observation
by
the
revisional court that the learned Magistrate
had ignored some apparent facts and
evidence does not appear to be unfounded.
In my opinion, where some discrepancies
are apparent and ignored by the trial court,
the revisional court is not powerless to setaside the findings given on such basis. All
these observations need not be disturbed by
the court in exercise of powers under
Article 226/227 of the Constitution.

6. Perusal of the impugned order
shows that the revisional court took note of
the fact that the order passed under section
145(1) Cr.P.C. had been stayed by the
revisional court in Revision No. 250 of
2011, impleading both Rajiv Gupta and
Irfan Ali, as opposite parties. This revision
was admittedly filed by the instant opposite
party no. 4, challenging both the orders
dated 15.06.2011 passed under section
145(1)
and
146(1)
Cr.P.C.
and
undisputedly there was an interim stay
passed by the revisional court in that
revision (para nos. 6 and 7 of impugned
order).

Further another observation in para no.
8 of the impugned order is that the
Magistrate wrongly treated the Revision
No. 250 of 2011, challenging the order
under
section
145(1)
Cr.P.C.,
as
a
proceeding parallel to the proceeding under
section 145 Cr.P.C. and the view taken by
the revisional court in para nos. 9 and 10
that in Original Suit No. 95 of 2007, which
was admittedly dismissed in default at
initial stages, could not form basis of
dropping of the proceedings, is not liable to
be interfered at. It may also be mentioned
that the revisional court expressed surprise
over a fact that though earlier the opposite
party no. 2 had moved an application for
withdrawal of proceedings under section
145 Cr.P.C., but subsequently he had given
an
application
for
withdrawal
of
withdrawal application, a fact conveniently
ignored by the Magistrate.

7. The next important debatable issue
involved in this case is that admittedly an
Original Suit No. 506 of 2011 has been
filed by the opposite party, therefore a
parallel proceeding under section 145
Cr.P.C. is bad in law. It may be noted that
the instant petitioner in support of his
contention relies upon the judgments i.e.,
Mahar Jahan and Others vs. State of
Delhi and Others, 2004 13 SCC 421; Ram
1690 INDIAN LAW REPORTS ALLAHABAD SERIES
Sumer Puri Mahant vs. State of U.P. and
Others, 1984 0 Supreme(SC) 361; Smt.
Prema Devi vs. State of U.P. and Another,
2007 10 ADJ 227; Aman Deep Singh
Shishya vs. State of U.P. and Another,
2023:AHC:241628.

The Supreme Court in Mahar
Jahan and Others (supra), in a peculiar
facts and circumstances of the matter
before it, took a view that there was no
such emergency so as to justify invocation
of powers under section 146(1) Cr.P.C. to
attach the property and set-aside the order
passed by the S.D.M. and the High Court.
In this case before the Supreme Court, the
civil court has been seized of the matter
since before the initiation of proceeding
under section 146(1) Cr.P.C.

In Smt. Prema Devi case (supra),
the application under section 482 Cr.P.C.
was allowed and the proceedings under
section 145 Cr.P.C. were quashed in a case
where the applicant was a recorded tenureholder and was in possession and her title
was not under cloud and a civil suit was
pending.

In Aman Deep Singh Shishya
case (supra), the Allahabad High Court
found
following
peculiar
facts
and
circumstances that when a preliminary
order under section 145(1) Cr.P.C. was
passed an interim order passed by the High
Court was in existence and a civil suit was
also pending, in which the possession of
one of the parties was shown, therefore the
court took a view that a parallel criminal
proceedings under section 145 Cr.P.C. was
not justified and therefore preliminary
order under section 145(1) Cr.P.C. was
quashed.

8. It may be noted that there is no
absolute bar for initiating or for continuing
the proceedings under section 145 Cr.P.C.
where circumstances do call for some
urgent action on the part of the State, so
that the ugly situations could be averted
and that public peace and tranquillity may
be maintained.

9. In Sanjai Kumar and Another vs.
VIth Additional District Judge, Bareilly
and Others, 1996 CriLJ 2413, a question
arose before the Allahabad High Court,
whether in cases, where there is no
effective interim order recording that a
particular party was in possession, passed
by any civil court, the proceedings under
section 145 Cr.P.C. shall be dropped? The
Court considered that question; the relevant
part of the judgement is as below:-

"4. The only material question
for decision was as to whether in the
absence of an effective interim order
indicating possession by the civil Court in
the aforesaid civil suit in favour of either of
the parties to the dispute, the proceedings
under Section 145, Cr. P. C. had become
liable to be dropped?

5. Learned counsel for the
parties relied upon a few decisions of
various Courts for and against on the
aforesaid question and after going through
the same I find that the decision which
applied to the facts of the instant case was
a decision of this Court reported in 1992
JIC 35, Abdul Gafoor v. State of U.P.
wherein it was held that the criminal Court
continued to exercise the jurisdiction under
Section 145, Cr.P.C., if no effective interim
order was passed in the suit pending before
the competent civil or revenue Court. This
Court before laying down the aforesaid
proposition of law, had considered some
other decisions also."

10. The Allahabad High Court also
dealt with the question of applicability of
3 All. Irfan Ali Vs. State of U.P. & Ors.
1691
the law laid down by Supreme Court in
Ram Sumer Puri Mahant vs. State of U.P.
and Others; AIR 1985 SC 472 in following
manner [as differentiated in Abdul Gafoor
case (supra)].

"In the case of Ram Sumer Puri,
Mahant, the question of title and possession
over the subject- matter had already been
adjudicated
and
the
suit
had
been
dismissed by the Civil Judge. An appeal
against the judgment and order of the Civil
Judge was still pending. It was in this
background that the Supreme Court did not
approve the parallel proceedings under
Section 145, Cr. P. C. in respect of the
same subject-matter between the same
parties. Thus, Sumer's case is not an
authority on the question that proceedings
under Section 145, Cr. P. C, must be
dropped in all cases whenever a civil suit is
pending in respect of the same subjectmatter between the same parties or
between the parties through whom the
panics are claiming their rights. Of course,
parallel proceedings should not be allowed
to continue, if a party under Section 145,
Cr.
P.
C.,can
seek
an
effective
remedy/declaration from the Civil Court.
Even in such a case, the proceedings under
Section 145, Cr.P.C. should be dropped
only when the Civil Court has passed some
effective order indicating as to which of the
parties was entitled to possession. In some
cases, the proceedings should also be
dropped
when
the
Civil
Court
has
appointed a receiver or has made some
arrangement for the maintenance of such
property. But, when the Civil Court does
not clarify the position regarding the
possession of the contesting parties by
passing an effective order and simply
passes
an
innocuous
order
like
maintenance of status quo, the criminal
proceedings are not to be dropped because
in that case both the parties may stake their
claim for possession and the situation may
lead to the breach of peace. In such cases,
even
the
proceeding
under
Sections
107/116, Cr.P.C. may not prove to be
effective and the subject-matter may have
to be attached by the Criminal Court. Of
course, orders passed by the Criminal
Court in such cases shall be subject to the
decision of the Civil Court. Thus, the
Magistrate is not bound to drop the
proceedings pending in his Court in all
cases under Section 145, Cr. P. C. for the
simple reason that a civil suit is pending in
the Civil Court in respect of the same
matter between the same parties or through
whom they are claiming.

6. In the instant case, Civil Court
even did not pass order directing the
parties to maintain status quo although the
same would have been of no help as it
would not have indicated the actual
possession of either party. Thus, it is not a
case in which any help would have been
available to the Magistrate from the mere
pendency of the civil suit between the
parties
for
maintaining
peace.
The
Magistrate was duty bound to maintain
peace
and,
therefore,
had
got
no
alternative except to proceed further with
the proceedings under Section 145, Cr.P.C.
and the impugned attachment order thus
appealed to be perfectly legal and valid.
The proceedings under Section 145,
Cr.P.C.,
therefore,
continued
to
be
maintainable and the Magistrate could not
be directed by this Court to drop the
same."

11. A similar situation arose before
the Allahabad High Court in Raj Bahadur
and Others vs. State of U.P. and Another,
decided on 25 July, 1994 in Criminal
Revision No.1032 of 1994. In that case, the
civil court had passed orders directing the
1692 INDIAN LAW REPORTS ALLAHABAD SERIES
parties to maintain status-quo. The S.D.M.
Court had dropped the proceeding under
section 145 Cr.P.C. on the ground that the
dispute between the parties is pending
before civil court and revenue court and
interim orders were in operation between
them. In revision, the learned Sessions
Judge disagreed with the assertions on the
ground that the orders passed by the
revenue and civil court for maintaining
status-quo did not and could not effectively
prevent the parties from fighting for the
land and property in dispute and therefore
the apprehension of breach of peace
remained. The High Court observed in
para- 3 and 4 as below:-

"3. It is not disputed that the
orders passed are only for maintaining
status quo. The order passed by the civil
court has already expired, as it was not
extended further. The purpose and objects
of the proceedings under section 145
Cr.P.C. is to maintain the law and order
and to prevent the parties from taking law
in their own hands which may create
breach of peace. The order passed by the
civil court or revenue court should be such
which may effectively prevent either of the
parties from entering into dispute for
taking possession of the property by force.
In case of an order for maintaining status
quo position about possession remains
vague and the parties are still left to get it
decided by themselves by use of disputed
property on the date the order of status quo
was passed. If the proceedings under
Section 145 Cr.P.C. are allowed to be
dropped in such state of affairs, the objects
of the preventive provisions contained in
original procedure code may be defeated.

4. For the reasons stated above, I
do not find it proper to make any
interference in this revision. It is being left
open to the parties to make an application
before civil court or revenue court as the
parties are advised and to pray for passing
a definite order with regard to possession
of the parties during pendency of the suit. If
such an application is filed, same shall be
considered and decided in accordance with
law. After a fresh order is passed by the
civil court or revenue court, it shall be
open to the Magistrate to pass a fresh
order.
Subject
to
aforesaid
observation/directions, this revision is
rejected."

12. This view finds strength from
several judgments that it is not always that
proceeding under section- 145 Cr.P.C. shall
not be maintainable, if civil suits are
pending.

The Supreme Court in Prakash
Chand Sachdeva vs. State and Another,
AIR 1994 SC 1436, held that where the
dispute is on the question of possession, the
Magistrate
is
empowered
to
take
cognizance under section 145 Cr.P.C.

The Supreme Court in Amresh
Tiwari vs. Lalta Prasas Dubey, 2000 (4)
Supreme 665, has clarified that it will not
be right to say that a proceeding under
section 145 Cr.P.C. would never lie in a
case where a civil suit has been filed.

13. The Allahabad High Court in
Mahant Govind Sharan Ji Maharaj vs.
State
Of
U.P.
And
2
Others;
2023:AHC:196973 has observed in para
no. 25 as below:-

"25. In my firm view, the
jurisdiction which a Magistrate is supposed
to exercise, is quite different from the
jurisdiction which a Civil Judge may
exercise. In both the cases, the question of
possession is important but the aim and
objective, is different. The civil court is
3 All. Irfan Ali Vs. State of U.P. & Ors.
1693
concerned with the righteousness of once
claim whereas the Magistrate is concerned
with the maintenance of peace and
tranquillity between the parties as well as
for the society. In my view wherever there
is an apprehension with regard to breach
of peace and no effective order is in
existence or has already been passed or
may be passed by the civil court, interim or
otherwise, the utility of the provisions like
section 145 Cr.P.C. cannot be undermined.
There may be instances where exigencies
of a situation may require the authorities
to interfere immediately and that may
precisely the case where section 145
Cr.P.C.
will
come
into
play,
notwithstanding the pendency of any civil
suit."

14. In the instant case, the question of defacto possession of opposite party no. 2, at
the time of initiation of proceeding or two
months prior to that is quite important. The
admitted factual position is that the
proceeding under section 145 Cr.P.C.
commenced on 10.06.2011 and preliminary
order under section 145(1) Cr.P.C. and
order of attachment under section 146(1)
Cr.P.C., as regard the attachment of subject
of dispute, appointment and delivery of
possession to the receiver was passed on
15.06.2011. Very forceful and vehement
contention of opposite party no. 2 is that
this measure was taken by the authorities in
collusion with the petitioner-Irfan Ali, who
had no basis for the claim, as regard
possession and entitlement. The false and
spurious claim of the petitioner was acted
upon by the authorities and his bonafide
pleas and papers were discarded. Further in
such circumstances, he was compelled and
had no option but to file a civil suit for
cancellation of sham sale deeds. This civil
suit was filed about two weeks after
commencement of the proceedings under
section 145 Cr.P.C. Admittedly, there has
not been any interim order of any civil
court, restraining any party from interfering
in any others possession or to maintain
status quo or showing factual position of
the de-facto possession of either of the
parties.

In the above senerio and in my
opinion whether any apprehension of
breach of peace exist and there is no need
for taking any urgent action, the aggrieved
person has to depend on the Executive
authorities for redressal by taking recourse
to proceeding under sections 145 and 146
Cr.P.C. It may be noted, as held and
referred to above in Mahant Govind
Sharan Ji Maharaj case (supra), a civil
court is concerned with the righteousness
of one's claim whereas the Magistrate
while exercising powers under the
provisions of sections 145/146 Cr.P.C. is
concerned with the maintenance of peace
and tranquillity between the parties as
well as in the society. And whenever
there is an apprehension of breach of
peace and there no effective order passed
by a civil court is in existence, the utility
of provisions under sections 145/146
Cr.P.C., cannot be underestimated. In a
civil case as well as in a case of the
nature of sections 145 and 146 Cr.P.C.
the question of de-facto possession is
important but the aim and objective is
different. It may also be significantly be
noted that it is for the authorities to take
stock of the situation and give a finding
whether there existed any apprehension of
breach of peace and then take a decision for
dropping the proceeding. The Executive
Magistrate cannot depend upon a mere
assertion of any of the parties.

In my opinion, the revisional
court rightly set-aside the order passed by
1694 INDIAN LAW REPORTS ALLAHABAD SERIES
the Additional City Magistrate. Moreover,
the petitioner has, in my view, not able to
convince this Court that there existed
manifest and patent violation of law which
should be corrected by this High Court in
exercise of its powers under Article
226/227 of the Constitution. In my opinion,
no case for interference in the impugned
order is made out and this petition is liable
to
be
dismissed
and
is
dismissed
accordingly.

15. The interim order is hereby
vacated.

16. As the matter is quite old,
therefore learned trial court/Executive
Magistrate concerned is directed to take up
the matter expeditiously and comply with
the order of the revisional court dated
08.05.2013.
----------
(2024) 3 ILRA 1694
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Misc. Writ Petition No. 9949 of 2021

Ms. Baba Beti ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Udai Chandani, Sri Vivek Srivastava, Sri
Gyanendra Kumar Mishra

Counsel for the Respondents:
G.A., Sri R.P.S. Chauhan, Sri Satish Chaturvedi,
Sri Kuldeep Srivastava, Sri Gyan Prakash (Sr.
Advocate), Sri Sanjay Kumar Yadav, Sri G.S.
Chaturvedi (Sr. Advocate), Sri Aditya Gupta

Fair
investigation-Initially
the
petitioner
approached
this
Court
-seeking
a
fair
investigation in the impugned FIR- prayer was
modified to request the transfer of the
investigation to the CBI- petitioner became
aware of corporate fraud allegedly committed
by SKS Power Generation Limited-and its
holding
companies
through
a
newspaper
publication-the investigation was entrusted to
Economic Offences Wing, Varanasi Division-
Following the investigation the police filed the
closure report- Economic Offences Wing (EOW),
Varanasi
Division,
has
conducted
the
investigation with a predetermined in collusion
with the accused persons-such actions have farreaching implications for the integrity of the
criminal
justice
system-and
raise
serious
questions about the functioning of the policeCBI, New Delhi is directed to investigate a case
against SKSPGL and its affiliated companies-
which were involved in the illicit transfer of
substantial
funds
-the
Serious
Fraud
Investigation Office (SFIO), the Enforcement
Directorate, and regulatory bodies like the
Securities and Exchange Board of India (SEBI)
may also be consulted in appropriate cases of
financial crime-and suitable and adequate
direction be issued in this regard by the Chief
Secretary, Government of Uttar Pradesh, at the
earliest.

Writ Petition allowed. (E-9)

Case Law Cited

1. State of Punjab v. CBI, (2011) 9 SCC 182.

2. State of West Bengal and others v.
Committee for the Protection of Democratic
Rights, West Bengal and others, (2010) 3 SCC
571.

3. Minor Irrigation & Rural Engg. Services, U.P.
v. Sahngoo Ram Arya, (2002) 5 SCC 521.

4. Air India Stationery Corpn. v. United Labour
Union, (1997) 9 SCC 377.

5. K.V. Rajendran v. Superintendent of Police,
CBCID South Zone, Chennai, (2013) 12 SCC
480.