# Mahant Govind Sharan Ji Maharaj v. State of U.P. & Ors. 698 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 10 ILRA 697
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-12
- **Case number:** Crl. Misc. Writ Petition No. 15890 of 2013
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahant-govind-sharan-ji-maharaj-v-state-of-u-p-ors-698-indian-law-reports-49510
- **Pages:** 16

## Headnote

Govt. Advocate, Sri Anurag Pathak, Sri Vageesh
Pandey, Sri Yogesh Pandey, Sri Anoop Trivedi
(Sr. Advocate)

A.
Criminal
Law-Constitution
of
India,1950-Article
226
-
Criminal
Procedure
Code,1973-Section
145maintainablity of proceeding u/s 145
Cr.P.C. when civil suit is pending-the
jurisdiction
which
a
Magistrate
is
supposed to exercise, is quite different
from the jurisdiction which a Civil Judge
may
exercise-Where
there
is
an
apprehension with regard to breach of
peace and no effective order is in exercise
or has already been passed or may be
passed by the civil court, interim or
otherwise, the utility of provisions like
section 145 Cr.P.C. cannot be underminedThere 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-The City Magistrate dropped the
proceeding under section 145 Cr.P.C. on
the sole ground that civil suits are
pending-Thus, the revisional court rightly
went into the legal issue of de-facto
possession on the date of issuance of
preliminary order u/s 145(1) Cr.P.C.-the
revisional court rightly observed that
dropping of the proceeding may not be
appropriate,
in
the
facts
and
circumstances of the case and that it was
enjoined upon the City Magistrate to
decide
upon
the
question
of
possession.(Para 1 to 30)

B. When a Magistrate is seized of a
matter, while exercising his jurisdiction
under the provisions of section 145
Cr.P.C., he is only concerned with de-facto
possession at a particular point of time.
This may range from the possession on
the date of the order passed under section
145(1) Cr.P.C. or within two months next
before the date on which the report of the
police officer or other information was
received or after that date and before the
date of his order, as is provided in proviso
to section 145(4) Cr.P.C., where there is
illegal dispossession.(Para 24)

The petition is disposed of. (E-6)

List of cases cited:

## Text

_Characters 0–39,926 of 53,942. This is a partial read: ask again with offset=39926 for what follows._

10 All. Mahant Govind Sharan Ji Maharaj Vs. State of U.P. & Ors.
697
because a civil remedy may be available to
the complainant that itself cannot be a
ground to quash a criminal proceeding.
Relevant extract of para 13 of the said judgment
reads as under:-

"13. It is true that a given set of facts may
make out a civil wrong as also a criminal
offence and only because a civil remedy may be
available to the complainant that itself cannot
be a ground to quash a criminal proceeding.
The real test is whether the allegations in the
complaint disclose the criminal offence of
cheating or not...."

(Emphasis supplied)

12. A Co-ordinate Bench of this Court
in Criminal Misc. Writ Petition No.18302
of 2022 (Dilip Kumar Singh @ Deepu
Singh vs. State of U.P. and 3 Others) has
held as under:-

"Considering the aforesaid facts, it cannot
be denied that there is no express bar to the
simultaneous continuance of a criminal
proceeding as well as civil proceedings. Citing
the decision rendered by Hon'ble Supreme
Court in (1999) 8 SCC 686 (Trisuns Chemical
Industry Vs. Rajesh Agarwal & Others). It has
been held that criminal prosecution cannot be
thwarted merely because civil proceedings are
also maintainable. Merely because an act has a
civil profile is not sufficient to denude it of its
criminal outfit.

Thus, even if the civil proceedings are
subjudice
before
the
Provident
Fund
Commissioner,
Varanasi,
the
criminal
prosecution can still proceed against the
petitioner.

Having
considered
the
submissions
advanced by learned counsel for the parties and
from the perusal of records, it is apparent that
the allegations in the FIR do constitute
ingredients of a cognizable offence."

(Emphasis supplied)

13. In this view of the matter and the law
laid down by the Hon'ble Apex Court in the
case of Trisuns Chemical Industry (supra),
Paramjeet Batra (supra), Vesa Holdings
(supra) as well as judgment passed by a Coordinate Bench of this Court in the case of Dilip
Kumar Singh @ Deepu Singh (supra) and
considering the facts and circumstances of the
case as alleged in the first information report
and the contents of the Original Suit No.191 of
2023 (Tuphail Ahmad vs. Rajesh Tandon) as
already discussed in the proceeding paragraphs,
we find that the argument of the learned counsel
for the petitioners that as a civil dispute is
pending and no criminality is attached in the
act, is not sustainable in the eye of law hence,
stands rejected.

14. We also find that on a bare reading of
the impugned FIR a cognizable offence is made
out. Therefore, in view of the law laid down by
Hon'ble Supreme Court in the case of State of
Haryana and others vs. Bhajan Lal and
others, 1992 Supp. (1) SCC 335 and M/s
Neeharika Infrastructure Pvt. Ltd. vs. State of
Maharashtra, AIR 2021 SC 1918 and in
Special Leave to Appeal (Crl.) No.3262/2021
(Leelavati Devi @ Leelawati & another vs. the
State of Uttar Pradesh) decided on 07.10.2021,
no case has been made out for interference
with the impugned first information report.
----------
(2023) 10 ILRA 697
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Misc. Writ Petition No. 15890 of 2013

Mahant Govind Sharan Ji Maharaj
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
698 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Atul Sharma, Sri A.K. Sharma, Sri Rajeev
Mishra

Counsel for the Respondents:
Govt. Advocate, Sri Anurag Pathak, Sri Vageesh
Pandey, Sri Yogesh Pandey, Sri Anoop Trivedi
(Sr. Advocate)

A.
Criminal
Law-Constitution
of
India,1950-Article
226
-
Criminal
Procedure
Code,1973-Section
145maintainablity of proceeding u/s 145
Cr.P.C. when civil suit is pending-the
jurisdiction
which
a
Magistrate
is
supposed to exercise, is quite different
from the jurisdiction which a Civil Judge
may
exercise-Where
there
is
an
apprehension with regard to breach of
peace and no effective order is in exercise
or has already been passed or may be
passed by the civil court, interim or
otherwise, the utility of provisions like
section 145 Cr.P.C. cannot be underminedThere 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-The City Magistrate dropped the
proceeding under section 145 Cr.P.C. on
the sole ground that civil suits are
pending-Thus, the revisional court rightly
went into the legal issue of de-facto
possession on the date of issuance of
preliminary order u/s 145(1) Cr.P.C.-the
revisional court rightly observed that
dropping of the proceeding may not be
appropriate,
in
the
facts
and
circumstances of the case and that it was
enjoined upon the City Magistrate to
decide
upon
the
question
of
possession.(Para 1 to 30)

B. When a Magistrate is seized of a
matter, while exercising his jurisdiction
under the provisions of section 145
Cr.P.C., he is only concerned with de-facto
possession at a particular point of time.
This may range from the possession on
the date of the order passed under section
145(1) Cr.P.C. or within two months next
before the date on which the report of the
police officer or other information was
received or after that date and before the
date of his order, as is provided in proviso
to section 145(4) Cr.P.C., where there is
illegal dispossession.(Para 24)

The petition is disposed of. (E-6)

List of cases cited:

1. Shaym Sunder Vs D.J., Ballia (2003) 46 ACC
2019

2. Prakash Chand Sachdeva Vs St. & anr. (1994)
AIR SC 1436

3. Amresh Tiwari Vs Lalta Prasad Dubey (2000)
4 Supreme 665

4. Prabhakar Tiwari Vs St. of U.P & ors. Matter
U/A 227 No 10770 of 2022

5. Sanjai Kumar & anr. Vs VIth A.D.J. & ors.
(1996) CriLJ 2413

6. Raj Bahadur & ors. Vs St. of U.P & anr. CRLR
No. 1032 of 1994

7. Dhara Begum Vs St. of U.P. & ors. Matters
U/A 227 No. 4546 of 2018

8. M/S Shiv Baba Industry Lalpur, Shajahanpur
Vs St. of U.P. & ors.

9. Radhey Shyam & anr. Vs Chhabi Nath & ors.
(2015) 5 SCC 423

10. Premgiri Vs St. of U.P. & ors. Matter U/A
227 No. 5579 of 2019

11. Ajaib Singh Vs Sirhind Co-op. Marketing cum
Processing Service Sty. Ltd. (1999) 6 SCC 82

12. Mohan Amba Prasad Agnihotri Vs Bhaskar
Balwant Aheer (2000) SC 931

13. U.O.I. & ors. Vs Himmat Singh Chahar
(1999) 4 SCC 521

14. Indian Overseas Bank Vs Indian Overseas
Bank Staff Canteen Workers' Union (2000) 4
SCC 245
10 All. Mahant Govind Sharan Ji Maharaj Vs. State of U.P. & Ors.
699
(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Atul Sharma, learned
counsel for the petitioner, Sri Anoop
Trivedi, learned Senior Advocate assisted
by Sri Vageesh Pandey, learned counsel for
respondent no. 3 and learned AGA for the
State.

Written submissions filed on behalf of
the petitioner and on behalf of the
respondent no. 3, have been taken on
record.

2. The petitioner has filed this writ petition
under article 226 of the Constitution
against
the
respondents
including
respondent no. 3-Mahant Shri Lalita Saran
Maharaj Deva Charya challenging the order
dated 25.07.2013 passed by Sessions
Judge, Mathura in Criminal Revision No.
384 of 2012 (Mahant Shri Lalita Saran
Maharaj Deva Charya vs. State of U.P. and
Others).

3. Following reliefs have been
claimed by the petitioner:-

"A. Issue a writ order or direction in
the nature of Certiorari quashing the
impugned order dated 25.7.2013 passed by
respondent No. 2 (Annexed as Annexrue
No. 18) to this writ petition.

B. Issue a writ order or direction in
the nature of Mandamus commanding the
respondents not to interfere in the peaceful
possession of the petitioner over the
Ashram situated at Plot No. 199 (199Ka).
C. Issue any other and further order which
this Hon'ble Court may deem fit and proper
in the cirumstances of the case."

4. The petitioner submits as below:-

(i) Mahant Shri Lalita Saran Maharaj
Deva Charya, disciple of Baba Madhuri
Dass, filed Original Suit No. 450 of 2005
(Lalita Sharan vs. Parmeshwar Dass and
Others) in the Court of Civil Judge (Senior
Division),
Mathura
for
permanent
injunction in respect of the property of Van
Vihar Ashram, with the averments in
nutshell that the plaintiff (Lalita Saran), on
the basis of a Will dated 25.04.2005, has
been taking care of Van Vihar Ashram,
situated at Vrindavan Parikrama Marg,
after the death of the testator Garvili
Sharan; the defendant have declared that
they will dispossess the plaintiff and obtain
illegal possession of Ashram property,
therefore, they may be restrained from
dispossessing the plaintiff.

(ii) During the pendency of the
aforesaid Original Suit No. 450 of 2005,
the S.H.O., Vrindavan, Mathura submitted
a report to the City Magistrate, Mathura
regarding Van Vihar Ashram, situated on
plot no. 199 (199Ka), for attaching the
property, under the provisions of section
145 Cr.P.C. on 20.06.2005. The City
Magistrate passed a preliminary order
under section 145(1) Cr.P.C., directing the
parties to appear and submit their evidence
and also passed an order under section
146(1) Cr.P.C. on 27.06.2005, attaching the
property and giving its custody to some
independent person.

(iii) Subsequently, the City Magistrate
heard both the sides and stayed the
execution of its own aforesaid order dated
27.06.2005, by which the property was
directed to be attached. By this order of
07.07.2005 the court concerned further
directed
the
parties
to
make
their
submissions and produce their evidence.

(iv) The respondent no. 3 challenged
the aforesaid order dated 07.07.2005, by
filing a Criminal Revision No. 394 of 2005.
700 INDIAN LAW REPORTS ALLAHABAD SERIES
The same was dismissed by the Additional
Sessions Judge by order dated 05.12.2005.

(v) The respondent no. 3, therefore
filed a Criminal Misc. Application under
Section 482 Cr.P.C. No. 130 of 2006,
challenging the dismissal of the revision
which is still pending.

(vi) The petitioner filed a separate
Original Suit No. 328 of 2006 (Mahant Shri
Govind Sharan Ji Maharat vs. Lalit Sharan
Dass and Others) for a decree of
permanent injunction which too is pending
in the Court of Civil Judge (Senior
Division), Mathura.

(vii) With regard to the disputed
property, the S.H.O., Vrindavan, Mathura,
submitted another report dated 06.06.2008,
before the City Magistrate, Mathura; the
City Magistrate, Mathura set aside the
order
dated
07.07.2005
and
further
directed the S.H.O. to comply with the
order dated 27.06.2005, passed under the
provisions of section 146(1) Cr.P.C. This
order was passed on 10.06.2008.

(viii) The petitioner preferred a
Criminal Revision No. 412 of 2008
challenging the order dated 10.06.2008,
passed by the Court of City Magistrate. The
revision was allowed and the order dated
10.06.2008 was set aside.

(ix) The order allowing the Criminal
Revision dated 04.07.2009 was challenged
by respondent no. 3, by filing a Writ
Petition no. 13633 of 2009. The High Court
passed an interim order dated 08.09.2009
direcing the parties to maintain status quo.

(x) The aforesaid writ petition was
dismissed on 23.08.2011 for want of
prosecution and therefore the interim order
was vacated, however the respondent filed
an application for recall/restoration of his
application.

(xi) The petitioner Mahant Govind
Sharan Ji Maharaj, filed an application
before the City Magistrate for recall of
attachment order on the basis, that the Writ
Petition No. 13633 of 2009 has been
dismissed
on
23.08.2011.
The
City
Magistrate set aside the attachment order
and fixed another date for hearing, by
passing an order dated 02.09.2011 and
attached
property
was
released
in
possession of the petitioner on 07.09.2011
and the memo of handing over possession
was prepared and since thereafter the
petitioner is in actual physical possession
of the Ashram situated over plot no. 199
(199ka).

(xii) Mahant Lalita Sharan Das
challenged the order dated 02.09.2011,
setting aside the attachment, in Criminal
Revision No. 419 of 2011; the same was
dismissed, giving liberty to the revisionist
Lalita Sharan to file an objection regarding
possession, before the City Magistrate, with
further directions that it will be decided by
the City Magistrate, in the light of the
objections
so
filed.
Meanwhile
the
recall/restoration
application
for
recall/restoration of Writ Petition no.
13633 of 2009 was decided and the order
dated 23.08.2011 was set aside, however no
interim stay order was passed.

(xiii) The City Magistrate, Mathura
dropped the proceeding under section 145
Cr.P.C. on the ground that a civil suit was
pending regarding the same. This order
was passed on 25.07.2012.

(xiv) The aforesaid order dated
25.07.2012, was challenged in Criminal
Revision No. 384 of 2012. The same was
allowed by an order dated 25.07.2013.

Now the petitioner is before this court
challenging the aforesaid order dated
25.07.2013 passed by the revisional court.

5. It is submitted on behalf of the
petitioner that the impugned order dated
25.07.2013 is without jurisdiction, patently
10 All. Mahant Govind Sharan Ji Maharaj Vs. State of U.P. & Ors.
701
illegal, unjust and arbitrary. The City
Magistrate
had
rightly
dropped
the
proceeding on the ground that a civil suit
was pending. The Sessions Judge ignored
the settled legal position that when the civil
suit is pending, the proceeding under
section 145 Cr.P.C. is not maintainable. The
proceeding under section 145 Cr.P.C. was
initiated in the year 2005 whereas the civil
suits were filed in the year 2005 to 2009.
The civil suit no. 450 of 2005 for the relief
of permanent injunction with regard to
same property was pending at that time.
The trial court had correctly appreciated the
legal and factual position whereas the court
of revision wrongly set aside the order of
the City Magistrate for deciding the
question of possession afresh.

6. The main contesting respondent no.
3, in his counter affidavit, stated as below:-

* Through the last and final 'Will' of
Sanat Kumar Ji Maharaj, the respondent
no. 3- Mahant Shri Lalita Sharan Maharaj
became his sole successor and therefore, on
his death on 27.12.1978, he became the
'peethadheesh' of all the properties of the
said institution, including the property in
dispute. The earlier 'Will' executed in
favour of Garvili Sharan on 16.05.1966,
became ineffective because of execution of
subsequent registered Will on 17.10.1978.
The name of the respondent no. 3 was
mutated
in
the
revenue
record
on
23.01.1982 and still continuing as such, in
the record of rights.

* The respondent no. 3 was in
continuous possession of the property in
dispute till, it was attached.

* Garvili Sharan, one of the chelas of
Sanat Kumar Das Ji Maharaj, through
whom, the petitioner alleges to have the
ownership of the property, never challenged
the registered Will dated 17.10.1978. He
never challenged the mutation of name of
the respondent no. 3 in the record of rights.

* The proceedings under section 145
Cr.P.C. was initiated on 20.06.2005, after
the death of Garvili Sharan on 29.04.2005,
as breach of peace was apprehended.
Radhacharan Das was trying to forcefully
dispossess the respondent no. 3.

* Following suits regarding the title
and possession are/were pending.

(i) Suit No. 450 of 2005 filed on
31.05.2005,
(Lalita
Sharan
Das
vs.
Parmeshwar Das and Others) (later on
dismissed in default);

(ii) Suit No. 128 of 2006 filed on
17.02.2006, (Radharaman Das and Others
vs. Lalita Sharan Das chela of Madhuri Das
and Others) (later on dismissed in default);

(iii) Suit No. 328 of 2006 filed on
09.05.2006, Govind Sharan vs. Lalita
Sharan Das chela of Sanat Kumar Das and
Others (pending);

(iv) Suit No. 372 of 2009 filed on
27.05.2009, Anant Shri Vibhushit Shri
Mahant Lalita Sharan Ji Maharaj vs. Lalita
Sharan Das and Others (pending).

* Only in suit no. 372 of 2009, an
order of status quo was granted in favour of
Mahant Lalita Sharan and no other. This
fact was concealed by the petitioner.

* In Case crime no. 66 of 2006, during
the investigation, Lalita Sharan Das, chela
of Madhuri Das stated that he never filed
any civil suit and that he did not put his
signatures on any such civil suit and that he
did not file any application for restoration
of those suits. He also stated that no Will
was ever executed by Garvili Sharan in his
name.

* In civil suit no. 372 of 2009, Civil
Judge (Senior Division), Mathura, passed
an order observing that the question of
handing over the possession to Govind
Sharan, shall be decided by the court of
City Magistrate, as the criminal revision
702 INDIAN LAW REPORTS ALLAHABAD SERIES
no. 384 of 2012 has been allowed by the
Sessions Judge, Mathura.

* The City Magistrate as well as the
court of revision, did not adjudicate the
question that, which of the parties was in
possession of the property at any point of
time or on the date of preliminary order
passed under section 145(1) Cr.P.C. or the
order passed under section 146(1) Cr.P.C.

* The possession was handed over to
the writ petitioner by the police in
purported compliance of the order of
attachment. As status quo order was in
existence, hence neither the City Magistrate
nor the police had power to disturb the
possession or put any person in possession.
The possession was handed over to the
petitioner without any authority and in
flagrant violation of law.

* The argument of the respondent no.
3 is that, as no effective order of the civil
court, with regard to the party in actual
possession or entitled for possession was
ever passed, therefore, the proceedings
under section 145 Cr.P.C., should have
continued and the Magistrate wrongly
dropped the proceeding. The order of the
revisional court cannot be faulted and by
applying principle as held in Shaym Sundar
vs. District Judge, Ballia; 2003 (46) ACC
2019, the Sessions Judge rightly remanded
the matter to the City Magistrate to decide
upon the question of possession. The City
Magistrate, while dropping the proceeding
did not direct as to which of the parties
should be put in possession of the disputed
property.

* When the status quo order passed by
the civil court in suit no. 372 of 2009 was
in force, the City Magistrate could not have
altered the status quo by putting one of the
parties in possession.

* The City Magistrate while passing
the order dated 25.07.2012 did not decide
the question of possession, in spite of
directions of the Sessions Judge in criminal
revision no. 419 of 2011, contained in order
dated 14.09.2011 and wrongly dropped the
proceedings, without appropriate decision
on the point of possession.

7. From affidavit, counter affidavit
and the rejoinder affidavits, it emerges that
at least four civil suits were filed by
different parties with regard to the property
in dispute. in my opinion, though the
litigation
commenced
only
after
the
proceedings under section 145 Cr.P.C. had
already been initiated, therefore, before
other issues are taken up, it will be
appropriate to refer to some of the
judgments
given
on
the
point
of
maintainability/continuance of proceeding
under section 145 Cr.P.C., where civil suits
are pending.

8. 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.

9. 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.

10. The Allahabad High Court in its
judgment passed in Prabhakar Tiwari vs.
State of U.P. and 5 Others (Matter Under
Article 227 No. 10770 of 2022) delivered
on 9.10.2023 has held as below:-

"7.
To
decide
the
matter
in
controversy, it is appropriate to once
consider the provisions of section 145
Cr.P.C. Section 145 Cr.P.C. provides for a
10 All. Mahant Govind Sharan Ji Maharaj Vs. State of U.P. & Ors.
703
procedure where an Executive Magistrate
has to act upon, in cases where there is
likelihood of breach of peace on account
of a dispute concerning land or water. It
may be noted that Chapter-X of Cr.P.C. is
titled as maintenance of public order and
tranquility. This Chapter-X is divided into
four parts i.e. A, B, C and D. Part A deals
with unlawful assemblies, Part B deals
with public nuisances, Part C deals with
urgent cases of nuisance or apprehended
danger and Part D deals with disputes
relating to immovable property. As is clear
from the above, this Chapter provides for
an action to prevent breach of peace and
maintenance thereof. The legislature has
given powers to the Executive Magistrates
to take action under certain contingencies
with the sole motive of preventing breach
of peace and maintenance of public order
and tranquillity. No substantive rights of
the parties are decided and the proceeding
is essentially preventive and procedural in
nature.

11. In the aforesaid judgment,
highlighting the fact that provisions under
section
145
Cr.P.C.
are
essentially
preventive in nature, this court further
examined
the
scope
of
enquiry
as
envisaged under section 145 Cr.P.C. and the
procedure to be adopted. Relevant portion
of the judgment is as below:-

"8. Sections 145(1) and 145(4) of
Cr.P.C. are as below:-

"145.
Procedure
where
dispute
concerning land or water is likely to cause
breach of peace.

1. 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.

2. ....................

3. .....................

4. The Magistrate shall then, without,
reference to the merits or the claims of
any of the parties to a right to possess the
subject of dispute, peruse the statements
so put in, hear the parties, receive all such
evidence as may be produced by them,
take such further evidence, if any, as he
thinks necessary, and, if possible, decide
whether any and which of the parties was,
at the date of the order made by him under
sub- section (1), in possession of the
subject of dispute:

Provided that if it appears to the
Magistrate that any party has been forcibly
and wrongfully dispossessed within two
months next before the date on which the
report of a police officer or other
information
was
received
by
the
Magistrate, or after that date and before the
date of his order under sub- section (1), he
may treat the party so dispossessed as if
that party had been in possession on the
date of his order under sub- section (1)."

9. From conjoint reading of the above
provisions, it is quite clear that the primary
duty of the Magistrate is to examine the
claims of the parties as regards de-facto
possession over the subject of dispute. The
parties, are of course entitled to submit
their written statements of their respective
claims. In turn, the Magistrate shall look
into their claims to decide upon which of
the parties is or was in possession on the
date of the order passed by him under sub-
704 INDIAN LAW REPORTS ALLAHABAD SERIES
section 1 of section 145 Cr.P.C. or to decide
which party was in actual possession,
within two months next before the date (on
which the report of police officer was given
or the information was received by the
Magistrate after that date and before the
date of this order), in cases where any party
has
been
forcibly
and
wrongfully
dispossessed."

12. In the same case, this court further
clarified that how the legal claims to title
etc are to be kept separate from 'factual
possession'. It was observed in para no. 10
to 12 of the judgment as below:-

10. From the provisions of law, an
undisputed position emerges that rival
claims have to be considered, (irrespective
of the fact whether or not they touch upon
the right to title or the ownership over the
property), to find out as to whether any
party is/has been/was in possession on
such material dates as above. For this
limited purpose, the Magistrate can sift
through the oral and documentary
evidence produced by the parties. The
Magistrate is empowered to adjudicate
the question of de-facto possession and
no more.

11. The principles of law involved
herein, have been recited with the only
purpose that this Court proceeds in this
matter with that much legal clarity in
mind as regard the scope of enquiry
under
section
145
Cr.P.C.
Simultaneously one more important
aspect which has to be kept in mind is
that the petitioner has invoked the
jurisdiction of this Court under Article
227 of the Constitution of India and this
Court here is not deciding a revision or
an appeal.
12. In any legal battle, one contesting
party may have some merit in their
claims and the other party too may have
some merits to their claims. The merits
may flow from their respective claims as
to ownership. And where the claim to
ownership or title are involved, the fact
of
de-jure
possession
or
implied
possession may be of value. However, as
far as the law which applies in the
matters coming within the purview of
section 145 Cr.P.C. is concerned, the
claims to title or validity of possession,
express or implied may not be of much
utility. Even if the Executive Magistrate
finds some merit in the claims of one
party or the other, which might flow
from their valid rights to the ownership,
he may have to turn a blind eye. He has
to exercise a limited power with a view to
prevent breach of peace. In matter of
such nature, there is always an invisible
third party that is the society at large.
The
jurisdiction,
the
Executive
Magistrate has to exercise, is aimed at
upholding the rights of the society at
large, to have peace in the area or may
be in the neighbourhood. This is not to
say that the claims or the averments and
the evidence, whether documentary or
the oral, as regards ownership and
consequent possession over the property
or as regards "possession" only with or
without any reasonable or credible claim
of ownership or title, cannot be perused
or assessed at all. Of course, the Court is
entitled to go through such claims and
the evidence but only for a limited
purpose of finding out the actual
possession over the property in dispute."

After
discussing
several
other
judgments on the point, the Allahabad
High Court took the view that it is not
always that the proceeding under section
145 Cr.P.C. shall not be maintainable, when
civil suit is pending.
10 All. Mahant Govind Sharan Ji Maharaj Vs. State of U.P. & Ors.
705

13. 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. It
would be proper to reproduce below the
relevant findings of this Court in the said
decision."

14. The Allahabad High Court also
dealt with the question of applicability of
the law laid down by Supreme Court in
Ram Sumer Puri case in following manner
in Sanjai Kumar and Another (supra).

"In the case of Ram Sumer Puri,
Mahani,
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
706 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15. 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 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 and revenue courts 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.

16. This legal position, in my view
has crystallized that mere pendency of
10 All. Mahant Govind Sharan Ji Maharaj Vs. State of U.P. & Ors.
707
proceeding before a civil court is not a bar
to initiate/continue a proceeding under
section 145 Cr.P.C.

17. Though the respondent no. 3 have
not claimed that the type of relief which
has been sought in the present proceeding
styled as criminal misc. writ petition under
Article 226 of the Constitution cannot be
granted and instead the petitioner should
have filed criminal misc. writ petition
under Article 227 of the Constitution,
however as this issue may have legal
ramifications,
therefore,
I
find
it
appropriate to deal with it.

In Matters under Article 227 No.
4546 of 2018 (Dhara Begum) vs. State of
U.P.
and
2
Others)
decided
on
01.08.2018, a similar situation arose before
this High Court and the High Court, in
view of the facts and circumstance and
especially in view of the fact that matter
had already been finally heard, and further
observing from a judgment given in M/S
Shiv Baba Industry Lalpur, Shajahanpur
vs. State of U.P. and 3 Others proceeded
to decide the same. The para which was
reproduced from the aforesaid judgment is
being reproduced here as well:-

"27.
Thus
after
the
consistent
expression of unanimous opinion by their
Lordships of the Supreme Court in
Shalini Shyam Shetty (supra) and the
decision of Three Judge Bench of their
Lordships in Radhey Shyam (supra), there
remains no cavil notwithstanding any kind
of interpretation that might have been
earlier placed on the amended Rules of
Chapter XXII of the High Court Rules
that a petition under Article 227 of the
Constitution can never be styled as a writ
petition and styling it as a writ petition is
certainly a defect that goes to the root of
the matter rendering such a petition illframed beyond maintainability. A petition
under Article 227 of the Constitution in
order to be in tune with the jurisdiction it
invokes may be styled as a Civil Misc.
Applications
or
Criminal
Misc.
Applications or may be labelled by any
appropriate nomenclature which eschews
the use of the word writ. In addition, the
relief clause should not ask for issue of
any of the writs or orders in the nature of
writs as are enumerated in Article 226 of
the Constitution, that includes mandamus,
certiorari, prohibition or quo-warranto.
The relief in a matter under Article 227 of
the Constitution may not only seek setting
aside of the order under challenge, but
reversal of the same and further orders on
the applications made to the subordinate
court or tribunal in the same manner as a
court of appeal or revision, subject of
course to limitations on the exercise of the
power under Article 227, could have
passed
including
injunctions
and
directions of an appropriate kind to
private parties or in the context of
criminal proceedings like one involving
reversal
of
an
interlocutory
order,
refusing discharge by the Trial Court and
the
Sessions
Judge
in
revision
concurrently."

The Supreme Court in the case of
Radhey Shyam and another vs. Chhabi
Nath and others, (2015) 5 SCC 423, in
para no. 25 observed as below:-

"25. All courts in the jurisdiction of a
High Court are subordinate to it and
subject to its control and supervision
under Article 227. Writ jurisdiction is
constitutionally conferred on all High
Courts.
Broad
principles
of
writ
jurisdiction followed in England are
applicable to India and a writ of certiorari
708 INDIAN LAW REPORTS ALLAHABAD SERIES
lies against patently erroneous or without
jurisdiction
orders
of
Tribunals
or
authorities or courts other than judicial
courts. There are no precedents in India
for High Courts to issue writs to
subordinate courts. Control of working of
subordinate courts in dealing with their
judicial orders is exercised by way of
appellate or revisional powers or power of
superintendence under Article 227.Orders
of civil court stand on different footing
from the orders of authorities or Tribunals
or courts other than judicial/civil courts.
While appellate or revisional jurisdiction
is
regulated
by
statutes,
power
of
superintendence under Article 227 is
constitutional. The expression "inferior
court" is not referable to judicial courts."

18. Thus it has been clearly laid down
that order of civil 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. 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. Hence forth comes the scope
of interference under Article 227 of the
Constitution.

19. The Allahabad High Court in
Premgiri vs. State of U.P. and 3 Others,
decided on 18.09.2019 in Matter under
Article 227 No.5579 of 2019, has observed
as below:-

"It is well settled that in exercise of
supervisory jurisdiction of this Court over
subordinate courts, the scope is very
limited and narrow. It is not to correct the
errors in the orders of the court below but
to remove manifest and patent violation of
law and jurisdiction without acting as an
appellate authority. This power involves a
duty on the High Court to keep the
inferior courts and tribunals within the
bounds of their authority and to see that
they act according to law. But this power
does not vest the High Court with any
unlimited prerogative to correct all species
of hardship or wrong decisions made
within the limits of the jurisdiction of the
Court or Tribunal. It must be restricted to
cases of grave dereliction of duty and
flagrant abuse of fundamental principle of
law or justice, where grave injustice would
be done unless the High Court interferes."

The power under Article 227 of
judicial superintendence cannot be used to
upset the conclusions of facts, howsoever
erroneous they may be, unless they are so
perverse and so unreasonable that no Court
could have reached them.

20. Similar views were expressed in
Ajaib Singh vs.