# Lakshmi Narayan & Ors v. State of U.P. & Ors

- **Citation:** (2024) 11 ILRA 532
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-21
- **Case number:** Matters Under Article 227 No. 9914 of 2023
- **Bench:** Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakshmi-narayan-ors-v-state-of-u-p-ors-51095
- **Pages:** 5

## Headnote

Civil Law - Constitution of India,1950 -
Article
227
-
Criminal
Procedure
Code,1973 - Sections 145 & 146: - Misc.
Petition - Challenge to the Impugned order -
Plot in question belongs to the petitioners,
whose name was recorded in CH 45 during
consolidation proceedings, and whom have
residing there after constructing a two-story
house - Respondent No. 6, claiming cosharership over the house, initiated proceedings
under Section 145 Cr.P.C. on the grounds of
apprehension of breach of peace - Police report,
submitted - objection raised - spot inspection,
conducted by Naib Tehsildar and area Lekhpal -
SDM ordered to drop the proceedings u/s 145
Cr.P.C., based on the report of the Naib Tehsildar
- respondents No. 5 to 7 filed Criminal Revision
- remand order for fresh consideration - Misc.
Petition - Court observations - Spot inspection
report shows that petitioners are in possession
of the disputed plot and the house constructed
upon it and during proceedings u/s 145 Cr.P.C.,
respondents No. 5 to 7 also instituted an
Original Suit wherein notices were issued - Held:
Considering the Naib Tehsildar's report, it is
fairly concluded that petitioners are in peaceful
possession of the plot and the two-story house,
and there exists no apprehension of breach of
peace - hence, impugned order is set aside,
reaffirming the order of the SDM - Writ petition
allowed accordingly. (Para - 11, 12, 15, 16)

Misc. Petition Allowed. (E-11)

List of Cases cited:

Amresh Tiwari Vs Lalta Prasad Dubey & anr.
(2000 vol. 4 SCC 440).

## Text

532 INDIAN LAW REPORTS ALLAHABAD SERIES
of breach of peace and the proceeding
under Section 145 Cr.P.C. was initiated by
Ravindra Sonker respondent No. 4.

6. On the basis of a Police Report
dated
12.11.2020,
the
Sub-Divisional
Officer, Sadar, Varanasi vide order dated
24.11.2020 had passed a preliminary order
under Section 145 Cr.P.C. directing both
the parties to claim their rights. After
having
satisfied
that
there
was
all
likelihood of breach of peace as the
purchaser tried to take possession over the
disputed plot while the petitioners who
were already in possession raised objection,
accordingly, the disputed property was
attached vide order dated 27.02.2021 and
the Station House Officer, Maduadih,
Varanasi was directed to either take over
the custody himself or give to some other
impartial person and the parties were
directed to produce oral and documentary
evidence claiming their title.

7. Being aggrieved by the order of
attachment
dated
27.02.2021,
the
petitioners filed a Criminal Revision No.
102 of 2021 before the Additional
Sessions Judge, Court No. 1, Varanasi.
However, the said Criminal Revision was
dismissed and the order dated 27.02.2021
passed by the Sub-Divisional Officer,
Sadar, Varanasi was affirmed on the
ground that respondent No. 4 Ravindra
Sonker was not made a defendant in the
Civil Suit No. 239 of 2012 pending
before the Court of Civil Judge (Junior
Division), Varanasi Babbar Vs. Anand in
which the main dispute was with regard
to the possession of the disputed land
between
Ravindra
Sonker
and
the
petitioners. It is also apparent that no any
ad-interim injunction has been granted in
favour of the petitioners in the said suit.
The police report dated 12.11.2020 also
reveals that there was every chance of
breach of peace.

8. The Hon'ble Apex Court in the
case of Amresh Tiwari Vs. Lalta
Prasad Dubey and Anr. 2000 4 SCC
440 has held that "We clarify that we are
not stating that in every case where a civil
suit is filed, Section 145 proceedings would
never lie. It is only in cases where civil suit
is for possession or for declaration of title
in respect of the same property and where
reliefs regarding protection of the property
concerned can be applied for and granted
by the civil court then proceedings under
Section 145 should not be allowed to
continue. This is because the civil court is
competent to decide the question of title as
well as possession between the parties and
the orders of the civil court would be
binding on the Magistrate."

9. In the matter in hand, through the
civil suit is pending, but no protection or
ad interim injunction has been granted,
therefore, considering the aforesaid facts
and
circumstances,
the
submissions
advanced above and the case law
referred, there is no illegality in the order
impugned. No interference is required.

10. Hence, the petition is dismissed.
----------
(2024) 11 ILRA 532
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2024

BEFORE

THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Matters Under Article 227 No. 9914 of 2023

Lakshmi Narayan & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
11 All. Lakshmi Narayan & Ors. Vs. State of U.P. & Ors.
533
Counsel for the Petitioners:
Ashutosh Mishra

Counsel for the Respondents:
G.A., Kashif Gilani, Rakesh Kumar Mishra

Civil Law - Constitution of India,1950 -
Article
227
-
Criminal
Procedure
Code,1973 - Sections 145 & 146: - Misc.
Petition - Challenge to the Impugned order -
Plot in question belongs to the petitioners,
whose name was recorded in CH 45 during
consolidation proceedings, and whom have
residing there after constructing a two-story
house - Respondent No. 6, claiming cosharership over the house, initiated proceedings
under Section 145 Cr.P.C. on the grounds of
apprehension of breach of peace - Police report,
submitted - objection raised - spot inspection,
conducted by Naib Tehsildar and area Lekhpal -
SDM ordered to drop the proceedings u/s 145
Cr.P.C., based on the report of the Naib Tehsildar
- respondents No. 5 to 7 filed Criminal Revision
- remand order for fresh consideration - Misc.
Petition - Court observations - Spot inspection
report shows that petitioners are in possession
of the disputed plot and the house constructed
upon it and during proceedings u/s 145 Cr.P.C.,
respondents No. 5 to 7 also instituted an
Original Suit wherein notices were issued - Held:
Considering the Naib Tehsildar's report, it is
fairly concluded that petitioners are in peaceful
possession of the plot and the two-story house,
and there exists no apprehension of breach of
peace - hence, impugned order is set aside,
reaffirming the order of the SDM - Writ petition
allowed accordingly. (Para - 11, 12, 15, 16)

Misc. Petition Allowed. (E-11)

List of Cases cited:

Amresh Tiwari Vs Lalta Prasad Dubey & anr.
(2000 vol. 4 SCC 440).

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard Sri Ashutosh Mishra, learned
counsel for the petitioners, Sri Rajiv
Kumar, Advocate holding brief of Sri
Kashif Gilani, learned counsel for the
respondent Nos. 5 and 7, Sri Rakesh Kumar
Mishra, learned counsel for the respondent
No. 6, Sri Suraj Singh, learned A.G.A. for
the State of U.P. and perused the record.

2. The present writ petition under
Article 227 of the Constitution of India has
been filed with a prayer to set-aside the
order
dated
28.08.2023
(Anneuxre-1)
passed by learned Additional Sessions
Judge-I, Court No.1, Jaunpur in Criminal
Revision No.167 of 2023 (Rajkumar and
others vs. State of U.P. and others), arising
out of Case No.4287 of 2022 under Section
145 Cr.P.C. during the pendency of this
present petition.

3. Briefly, the dispute pertains to Plot
No. 287 Ka situated at Village Belwa,
Tehsil Mariahu, District-Jaunpur, which
belongs to the petitioner No.1 Laxmi
Narayan whose name was recorded in the
CH Form 45 during the consolidation
proceedings. The petitioner has been
residing
over
the
said
plot
after
constructing a two storey house using the
second floor for residential purpose and the
first floor with a godown for running the
shop.

4. On 08.05.2022, the respondent No.
6 Durga Prasad moved an application under
Section 145 Cr.P.C. before the SubDivisional Magistrate, Tehsil Mariahu,
District-Jaunpur alleging that there is
apprehension of breach of peace as he owns
a share in Plot No. 287 Ka and the
petitioners were illegally occupying the
said plot and the house constructed over it
whereas the respondent Nos. 5 to 7 together
owned half share in the said house.

5. Accordingly, a Police Report dated
21.05.2022 was sought from the concerned
534 INDIAN LAW REPORTS ALLAHABAD SERIES
Police Station. According to the said report,
the ground floor was occupied by the
petitioners whereas the second floor was
occupied by respondent Nos. 5 to 7.
However, the respondent Nos. 5 to 7 have
constructed a separate house and were
residing there.

6. Accordingly, the Sub-Divisional
Magistrate,
Tehsil
Mariahu,
DistrictJaunpur passed a preliminary order dated
01.06.2022 under Section 145(1) Cr.P.C.
holding that there was apprehension of
breach of peace over the disputed property
and directed the parties to appear with their
records claiming their title. After having
gone through the reply and the objections
raised by the parties, the Sub-Divisional
Magistrate, concerned vide order dated
10.04.2023 directed the Naib Tehsildar
concerned to submit a report after making a
spot
inspection.
The
Naib
Tehsildar
concerned
alongwith
the
Lekhpal
concerned submitted its report dated
13.04.2023 stating that the petitioners are
in possession of the plot in dispute and
currently residing with their family on the
second floor of the house and running the
shop on the first floor having a godown as
well. The said report also stated that there
was no apprehension of breach of peace
over the said plot and Durga Prasad had no
possession on that house.

7. Accordingly, the Sub Division
Magistrate, Tehsil Mariahu, DistrictJaunpur vide order dated 15.04.2023 had
recalled the order dated 01.06.2022 and
dropped the proceedings under Section
145 Cr.P.C. on the ground that as per the
report of Naib Tehsildar concerned, the
petitioners are in possession of the house
constructed over Plot No. 287 Ka and
there was no apprehension of breach of
peace.

8. Aggrieved by the said order, the
respondent Nos. 5 to 7 preferred a Criminal
Revision No. 167 of 2023 challenging the
order dated 15.04.2023 before the learned
Additional
Sessions
Judge-I,
Jaunpur.
Accordingly, vide order dated 28.08.2023
the Revisional Court had set aside the order
dated 15.04.2023 and remanded the matter
to the Sub Divisional Magistrate, Tehsil
Mariahu,
District-Jaunpur
for
fresh
consideration in respect to their possession
alongwith the relevant records.

9. Learned counsel for the petitioners
contended that the impugned order dated
28.08.2023 is highly illegal and arbitrary as
there was no apprehension of breach of
peace. It has also been contended that the
learned Revisional Court did not consider
the fact that the petitioners are the owners
of the disputed plot and the house
constructed over it and their names were
already existed in CH Form 45 vide order
dated 07.09.1972 under Section 9A(2) of
the U.P. Consolidation of Holding Act. The
said order was never challenged during the
consolidation
proceedings.
Once
the
consolidation proceedings came to an end
and notification under Section 52 of the
Consolidation of Holding Act, was issued,
the said entry in the name of Petitioner
No.1 became final. In order to circumvent
the consolidation process, the respondents
had initiated the proceedings under Section
145 Cr.P.C. As per section 49 of the U.P.
Consolidation of the Holding Act, there is a
bar on any civil or revenue proceedings.
Even the report of the Naib Tehsildar
concenred shows that on both the floors of
the house situated over Plot No.287 Ka, the
petitioner No.1 Lakshmi Narayan is having
the
possession.
It
has
been
further
emphasised that the parties are closely
related to each other as the father of the
respondent Nos. 5 to 7 was the brother of
11 All. Lakshmi Narayan & Ors. Vs. State of U.P. & Ors.
535
the petitioner No. 1 and could seek the
remedy by instituting a suit for the partition
of their share. The Police in its report dated
21.05.2022 has acted in bias by stating that
the private respondents are residing in one
of the floor. After the compromise, the
respondents have settled separately.

10. Per contra, learned counsel for the
respondent Nos. 4 to 7 have asserted that
they reside on the first floor of the
constructed house over the disputed plot
and own half of the share over the disputed
property.

11. Thus, from the perusal of the
records,
it
transpires
that
impugned
proceedings under section 145 Cr.P.C. have
been initiated by the respondents on the
basis of biased Police Report dated
21.05.2022. The spot inspection report
dated 13.04.2022 of the Naib Tehsildar
concerned and the Lekhpal concerned
shows that the petitioners are in possession
over the disputed plot as well as the house
constructed over it. The preliminary order
dated 01.06.2022 passed by the Sub
Divisional Magistrate Tehsil Mariahu,
District-Jaunpur
under
Section
145(1)
Cr.P.C., was passed without application of
mind.

12. During the course of arguments, it
has been informed by the learned counsel
for the petitioners that after the proceedings
under Section 145 Cr.P.C. was initiated by
the respondent Nos. 5 to 7, they instituted
an Original Suit No. 1262 of 2023 on
15.09.2023 before the Civil Judge (Junior
Division),
Jaunpur
seeking permanent
injunction against the petitioners on the
ground that the property in dispute is the
property of their grandfather and half of its
share belongs to the respondent Nos. 5 to 7.

13. Vide order dated 18.09.2023, the
Civil Judge (Junior Division), Jaunpur has
passed
the
following
order
on
the
Application 6C moved by the respondents:

"प्राथटना पत्र 6ग मय शपथ पत्र 7ग पर िादी के
खिद्वान अखधिक्ता को एकपिीय रूप से सुना एिं पत्रािली का
अिलोकन खकया।

प्रस्तुत प्रकरण आिादी/भिन खनजाई के शाश्वत
व्यादेश के अनुतोष हेतु दाखिल खकया गया है तथा प्राथटनापत्र 6ग के
माध्यम से प्रश्नगत आिादी पर अन्तररम व्यादेश का अनुतोष चाहा
गया है। िादी की ओर से स्ित्ि एिं अध्यासन के सम्िन्ध में कोई
अखभलेि दाखिल नहीं खकया गया है और न ही मौके की अिखस्थखत
के सम्िन्ध में कोई प्रपत्र दाखिल नही खकया गया है। अतः खिना
खिपिी को सुने एिं खिना मौके की आख्या आये प्रथम दृष्टया एक
पिीय अन्तररम व्यादेश जारी खकये जाने का आधार पयाटप्त नही है।
अतः खिपिी को िास्ते आपखत्त खनस्तारण 6ग खदनांक
17.10.2023 खनयत कर नोखिस जारी हो। पैरिी उभयप्रकार से
अन्दर सप्ताह हो।"

14. In support of his contention
learned counsel for the petitioners has
relied upon the judgment of the Hon'ble
Supreme Court in Amresh Tiwari vs.
Lalta Prasad Dubey and another, (2002)
4 SCC 440, wherein the Apex Court held
that:

"
The
SDM
was
right
in
discontinuing
the
proceedings
under
Section 145. It is not in every case where a
civil suit is filed. Section 145 proceedings
would never lie. It is only in cases where
civil
suit
is
for
possession
or
for
declaration of title in respect of the same
property and where reliefs regarding
protection of the property concerned can
be applied for and granted by the civil
court that proceedings under section 145
should not be allowed to continue. This is
because the civil court is competent to
decide the question of title as well as
possession between the parties and the
536 INDIAN LAW REPORTS ALLAHABAD SERIES
orders of the civil court would be binding
on the Magistrate."

15. Thus, considering the report of the
Naib Tehsildar concerned and the Lekhpal
concerned dated 13.04.2023 regarding the
possession of the petitioners and the entry
in
CH
Form 45
vide
order dated
07.09.1972, it can be fairly concluded that
the petitioners are in peaceful possession of
Plot No. 287 Ka and the two story house
constructed over it and there is no
apprehension of the breach of peace. The
Original Suit No. 1262 of 2023 filed by the
respondents is pending decision between
the parties.

16. After analysing the aforesaid facts
and circumstances and the submissions
advanced by the parties, the order dated
28.08.2023 (Anneuxre-1) passed by the
learned Additional Sessions Judge-I, Court
No.1, Jaunpur in Criminal Revision No.167
of 2023 (Rajkumar and others vs. State of
U.P. and others), arising out of Case
No.4287 of 2022, under Section 145
Cr.P.C. is hereby set-aside, affirming the
order dated 15.04.2023 passed by the Sub
Divisional Magistrate, Tehsil Mariahu,
District-Jaunpur.

Accordingly, the writ petition is
allowed.
----------
(2024) 11 ILRA 536
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.11.2024

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Cancellation Application No.
532 of 2023

Vinod Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Chandrika Patel, Gunjan Jadwani

Counsel for the Opposite Parties:
G.A., Shubham Kesarwani

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section - 438 (1)(ii) - Indian
Penal Code, Sections - 420, 467, 468, 471,
386, 397, 115, 323, 504 & 506 - Bail
Cancellation Application - order of trial court
granting Anticipatory Bail - by allowing second
Anticipatory Bail Application - wherein the
accused/opposite
party
no.
2
has
not
approached the court below with clean hand -
Court finds that, - opposite party no. 2 has
criminal antecedents and that too has not
explained,
as
such,
the
order
granting
anticipatory bail to the applicant cannot be
sustained and him being a practicing advocate
makes his case worse -held, the court seeks to
strike a delicate balance between safeguarding
individual liberty and upholding the interest of
justice and public safety - hence, he impugned
order is not sustainable and is liable to be set
aside - accordingly, instant bail cancellation
application is allowed - direction issued to
opposite party no. 2 to surrender before the trial
court with liberty to avail the remedy for regular
bail. (Para - 18, 23, 24)

Application allowed. (E-11)

List of Cases cited:

1. Deepak Yadav Vs St. of U.P - AIR 2022 SC
2514,

2. Dolat Ram & ors. Vs St. of Har.- (1995) I SCC
349,

3. Neeru Yadav Vs St. of U.P. & anr. - (2016) 15
SCC 422,

4. Mahipal Vs Rajesh Kumar @ Polia & anr. - AIR
2020 SC 670,

5. Colby Furniture Company, Inc. Vs Belinda J.
Overton - 299 So. 3D 259,