# Mohd. Kasim Usmani & Ors v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2025) 4 ILRA 940
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-18
- **Case number:** Crl. Misc. W.P. No. 28135 of 2018
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-kasim-usmani-ors-v-state-of-u-p-ors-opp-parties-53276
- **Pages:** 13

## Headnote

G.A., Akhilesh Pratap Singh, Anurag Tiwari,
Ashok Kumar Verma, Avadhesh Kumar Shukla,
Gayasuddeen Hari Bux Singh, Mahmood Alam,
Mayank Dwivedi, Mohd. Shahanshah Newaz
Khan

Criminal Law - Constitution of India, 1950
- Article 226 - Criminal Procedure Code,
1973 - Sections 145, 145(1), 146 &
146(1) - Writ Petition - challenging the
impugned orders u/s 145 and 146(1) Cr.P.C. -
alleging that petitioner held long-standing
ancestral possession and that parallel civil suits
on title and injunction were already pending -
as such making the criminal proceedings
unwarranted - Respondent no.4 argued that the
proceedings
were
necessary
due
to
apprehension of breach of peace - though both
his
own
application
and
police
reports
acknowledged the petitioners' possession -
Despite this, the Magistrate issued attachment
orders without establishing emergent need -
Revision - the Revisional Court failed to evaluate
maintainability or the civil litigation context -
writ petition - Court finds that, learned
Magistrate failed to record any findings as to
when civil suits have been filed by both the
parties, as to whether the application u/s 145
CrPC was maintainable or not and even if it was
maintainable, whether any order could have
been passed in the facts and circumstances of
the present case or not -relying on Supreme
Court precedents, court held that - unless the
issue of title is determined, the long and
admitted possession of the petitioners cannot be
settled in the proceedings u/s 145 CrPC and in
view of the ongoing civil suits, there was no
need of passing order of attachment -
consequently, the impugned orders are not
sustainable in the eyes of law and liable to be
set-aside - accordingly, writ petition is allowed.
(Para - 19, 20, 24, 25)
Writ Petition Allowed. (E-11)

List of referred Cases: -

## Text

_Characters 0–39,702 of 45,814. This is a partial read: ask again with offset=39702 for what follows._

940 INDIAN LAW REPORTS ALLAHABAD SERIES
settlement agreement dated 03.01.2024,
wherein they have mutually agreed that the
terms and conditions recorded in these
agreements are binding and there shall
remain no dispute, difference, litigation,
claim or counter claim whatsoever between
the petitioner and the informant. Based on
the aforesaid settlement agreements, the
Principal Judge, Family Court, Firozabad
had decreed the H.M.P. No.1088 of 2023
under Section 13-B of Act, 1955 on
31.05.2024. In these circumstances, in the
interest of justice, it appears to be a fit case
qua
the
petitioner
to
exercise
our
discretionary powers under Section 226 of
Constitution of India.

33. Accordingly, for the aforesaid
reasons, the writ petition is allowed and the
impugned FIR dated 18.05.2023 registered
as Case Crime No.358 of 2023 under
Sections 501, 500, 384, 188, 171-F IPC and
Section 67 I.T. Act, 2008, Police Station
Firozabad North, District Firozabad qua the
petitioner is quashed.

34. In view of the aforesaid facts and
circumstances, we do not find any merit in
the application, which has been moved by
the informant under Section 379 of
B.N.S.S., 2023, and the same stands
rejected.
----------
(2025) 4 ILRA 940
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.04.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Crl. Misc. W.P. No. 28135 of 2018

Mohd. Kasim Usmani & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Opp. Parties
Counsel for the Petitioners:
Rajeiu Kumar Tripathi, Diwakar Singh Gautam,
Rajeiu Kumar Tripathi

Counsel for the Opp. Parties:
G.A., Akhilesh Pratap Singh, Anurag Tiwari,
Ashok Kumar Verma, Avadhesh Kumar Shukla,
Gayasuddeen Hari Bux Singh, Mahmood Alam,
Mayank Dwivedi, Mohd. Shahanshah Newaz
Khan

Criminal Law - Constitution of India, 1950
- Article 226 - Criminal Procedure Code,
1973 - Sections 145, 145(1), 146 &
146(1) - Writ Petition - challenging the
impugned orders u/s 145 and 146(1) Cr.P.C. -
alleging that petitioner held long-standing
ancestral possession and that parallel civil suits
on title and injunction were already pending -
as such making the criminal proceedings
unwarranted - Respondent no.4 argued that the
proceedings
were
necessary
due
to
apprehension of breach of peace - though both
his
own
application
and
police
reports
acknowledged the petitioners' possession -
Despite this, the Magistrate issued attachment
orders without establishing emergent need -
Revision - the Revisional Court failed to evaluate
maintainability or the civil litigation context -
writ petition - Court finds that, learned
Magistrate failed to record any findings as to
when civil suits have been filed by both the
parties, as to whether the application u/s 145
CrPC was maintainable or not and even if it was
maintainable, whether any order could have
been passed in the facts and circumstances of
the present case or not -relying on Supreme
Court precedents, court held that - unless the
issue of title is determined, the long and
admitted possession of the petitioners cannot be
settled in the proceedings u/s 145 CrPC and in
view of the ongoing civil suits, there was no
need of passing order of attachment -
consequently, the impugned orders are not
sustainable in the eyes of law and liable to be
set-aside - accordingly, writ petition is allowed.
(Para - 19, 20, 24, 25)
Writ Petition Allowed. (E-11)

List of referred Cases: -

1. Amresh Tiwari Vs Lalta Prasad Dubey & anr.-
(2000)
4
SCC
440,
4 All. Mohd. Kasim Usmani & Ors. Vs. State of U.P. & Ors.
941
2. Mahant Ram Saran Dass Vs Harish Mohan &
anr.- (2001) 10 SCC 758,

3. Ashok Kumar Vs St. of Utterakhand & ors.-
(2013) 3 SCC 366

(Delivered by Hon'ble Hon'ble Rajnish
Kumar, J.)

1. Heard, Shri Rajeiu Kumar Tripathi,
learned counsel for the petitioners, Shri S.P.
Tiwari, learned AGA for the State and Shri
Mahmood Alam, learned counsel for the
respondent no. 4.

2. This petition under Article 227 of
the Constitution of India has been filed
assailing the judgment and order dated
29.08.2018, passed in Criminal Revision
No.141 of 2017 (Mohd. Kasim Usmani
and Others Vs. State of U.P. and Others)
by Third Additional Sessions Judge,
Bahraich and the order dated 24.06.2017
passed in Case No.23 of 2015, under
Section 145 of the Code of Criminal
Procedure
(here-in-after
referred
as
Cr.P.C.) by the City Magistrate, Bahraich
and to quash the proceedings of the said
case.

3. Learned counsel for the petitioners
submitted that the petitioners are the
owner and in possession of the property in
dispute since the time of their ancestors.
Earlier, the names of predecessors of the
petitioners were recorded in the records
and now the petitioners' names are
recorded. He further submitted that the
proceedings under Section 145 Cr.P.C. are
not maintainable as the dispute of title is
also pending before the civil court in one
of the suits filed by the respondent no.4
for declaration as well as cancellation of
the sale deed. Another suit filed by the
petitioners for injunction is also pending
before the civil court. It was only after
coming to know about the institution of
the suit for permanent injunction filed by
the
predecessor-in-interest
of
the
petitioners, application under Section 145
Cr.P.C. was filed before the Magistrate,
which is apparent from the fact that the
specific plea of knowledge of the suit
taken in paragraph-21 of the petition has
not been specifically denied and only a
vague reply has been given in paragraph33 of the counter affidavit. He further
submitted
that
the
respondent
no.4
admitted
the
possession
of
the
predecessor-in-interest of the petitioners in
the
application
itself,
therefore,
the
application was not maintainable. He
further submitted that the impugned order
dated 24.06.2017 could not have been
passed by the learned Magistrate because
there was no report of emergent need for
passing the order on account of breach of
public
peace
and
tranquility.
The
impugned order dated 24.06.2017 was
passed on a report dated 30.06.2015,
whereas not even a single incident was
reported after that and it also does not
disclose of any emergent need. No any
further report was also sought in this
regard.

4. He further submitted that the
petitioners had placed ample evidence on
the record of the court below to show that
the petitioners have been in possession for
a long time and are also paying the taxes
etc. The sale deed dated 25.09.1937 of a
neighbour was also placed on record, in
which in the boundaries, the house of the
petitioners has been shown in the south
with the name of grand father of the
petitioners. He further submitted that
learned revisional court also without
considering the aforesaid and grounds
raised in the revision, dismissed the
revision. He further submitted that no
942 INDIAN LAW REPORTS ALLAHABAD SERIES
interim injunction has been granted by
the civil court in either of the suits and if
there was any urgency, the application
could have been moved in the suits filed
before the civil court. He further submitted
that the possession can not be taken away
from the petitioners in such an illegal
manner. Thus, the submission is that the
impugned orders are not sustainable in the
eyes of law and liable to be set-aside. He
relied on Amresh Tiwari Vs. Lalta
Prasad Dubey and Another; (2000) 4
SCC 440, Mahant Ram Saran Dass Vs.
Harish Mohan and Another; (2001) 10
SCC 758 & Ashok Kumar Vs. State of
Utterakhand and Others; (2013) 3 SCC
366.

5. Per contra, learned counsel for the
respondent
no.4
submitted
that
the
application under Section 145 Cr.P.C. was
filed by the respondent no.4 as there was
apprehension of breach of public peace and
tranquility. He further submitted that
admittedly, the predecessor-in-interest of
the respondent no.4 is the owner of the
property-in-dispute. However on account of
certain circumstances, the predecessor-ininterest of the petitioners were asked to get
the map sanctioned. Since the predecessorin-interest of the respondent no.4 was out
and residing in Delhi in connection with
employment for livelihood, where the
respondent no.4 was also living with his
father, therefore the possession was with
the
predecessor-in-interest
of
the
petitioners. After death of his father, the
petitioners could not come for a long time
and when he came back then he came to
know that the property has changed a lot
and the name of the predecessor-in-interest
of the petitioners has been got recorded,
therefore, an
F.I.R.
was
lodged
on
08.06.2013, the proceedings of which are
pending. He further submitted that prior to
filing of the suit by the parties, the
application was moved on account of
emergent need and it is wrong to say that
the application was filed only after coming
to know about the institution of suit by the
petitioners. Even otherwise, it is apparent
from the written statement filed by the
respondent no.4 in the suit filed by the
petitioner as the same was filed after
coming to know about the suit on
16.04.2015, whereas the application under
Section
145
Cr.P.C.
was
filed
on
30.01.2015.

6. He further submitted that no proof
of title has been filed by the petitioners
even before this Court and no rejoinder
affidavit to the counter affidavit filed by the
respondent no.4 has also been filed even
after passing of a long time, therefore, the
facts disclosed in the counter affidavit are
unrebutted. He further submitted that the
impugned orders have rightly been passed
in accordance with law and there is no
illegality or infirmity in the same. The
judgment relied by the learned counsel for
the petitioners are not applicable on the
facts and circumstances of the present case
and the petitioners are not entitled for any
benefit of the same. The petition has been
filed
on
misconceived
and
baseless
grounds, which is liable to be dismissed.

7. Learned A.G.A. could not dispute
the factual aspects of the matter as argued
by learned counsels for the parties and the
legal position under which an order under
Section 145 Cr.P.C can be filed on account
of emergency on account of threat of
breach of public peace and tranquility.
However he submitted that the impugned
orders have been passed in accordance with
law and there is no illegality or infirmity in
them. Thus, the petition is misconceived
and liable to be dismissed.
4 All. Mohd. Kasim Usmani & Ors. Vs. State of U.P. & Ors.
943

8. I have considered the submissions
of learned counsel for the parties and
perused the records.

9. An application under Section 145
Cr.P.C. was moved by the respondent no.4
against the predecessor-in-interest of the
petitioners on 30.01.2015. A report was
called
from
the
in-charge
Inspector,
Kotwali Nagar. In response thereof the
report dated 30.06.2015 and 02.07.2015
were submitted stating therein that there
was tension between the parties regarding
possession and that a serious incident could
occur at any time, therefore, the further
legal action was required in the matter.
Having been satisfied with the report of
S.H.O. that there was tension between the
parties due to possession on the property in
dispute, a preliminary order was passed on
20.08.2015
by
the
City
Magistrate,
Bahraich i.e. the respondent no.2 and a
notice was issued to appear and file
objection and relevant documents. In
response thereof, the applicant i.e. the
respondent no.4 appeared and filed his
documents relating to the property in
dispute and an application under Section
146 (1) Cr.P.C. However, the respondents
i.e.
the
petitioners
did
not
appear.
Thereafter the learned Magistrate passed an
ex-parte order of attachment under Section
146 (1) Cr.P.C. on 17.10.2016. Being
aggrieved by the same, the petitioners filed
a Revision No.194 of 2016, which was
allowed by the Revisional Court by means
of the order dated 24.12.2016 and the
matter was remanded to pass a fresh order
on merit after affording an opportunity of
hearing to both the parties and to adduce
evidence.

10. In compliance of the aforesaid
order passed by the Revisional Court the
respondent no.4 appeared before the
learned Magistrate but the petitioners did
not appear. The learned Magistrate passed a
fresh order on 24.06.2017, recording a
finding that since the petitioners have not
appeared, therefore, there is no effect on
the circumstances under which the order
dated 17.10.2016 was passed and after
considering the documents filed by the
petitioners alongwith their application for
restoration filed on 30.11.2016, the learned
Magistrate passed a fresh order under
Section 146 (1) Cr.P.C. for attachment and
closed the proceedings recording a finding,
on perusal of the documents placed on
record, that it is apparent that there is a
dispute of title between the parties. It has
also been recorded that it is also apparent
from the Police report that there is serious
dispute between the parties with regard to
possession of the house in question and
there is serious possibility of breach of
peace on the spot.

11. The order dated 24.06.2017 was
challenged by the petitioners in Revision
No.141 of 2017 before the Session Judge,
which was dismissed by means of the
judgment and order dated 29.08.2018, by
the
IIIrd
Additional
Session
Judge,
Bahraich. The revision was decided exparte, as the petitioners had not appeared,
with the assistance of assistant District
Government Counsel and counsel for the
respondent no.4 and after perusing the
records. The learned Revisional Court,
considering the plea taken before the
Revisional Court that on account of start of
election procedure the petitioners could not
know about the proceedings of the case
before the learned Magistrate, therefore,
they could not place their case and
objections, recorded a finding that the
matter was remanded by the Revisional
Court by means of the order dated
24.12.2016, whereas the nominations for
944 INDIAN LAW REPORTS ALLAHABAD SERIES
Elections were made on 01.02.2016 and the
Election
Symbols
were
allotted
on
12.02.2016 and the impugned order by the
learned
Magistrate
was
passed
after
completion
of
Election
process
on
24.06.2017, therefore, the plea is not
tenable and it appears that they had
deliberately not appeared for some undue
benefit. It has also been recorded that on
account of it, they have again not appeared
in the last many dates before the Revisional
Court also. Thus, no illegality appears in
the lower court's order dated 24.06.2017
and there is no need of interference in the
matter. Thus, it is apparent that the
Revisional court passed the order merely
on the ground of the petitioners' absence
before the Revisional Court as well as
learned Magistrate during the proceedings
and on presumption without considering as
to whether the application under Section
145 Cr.P.C. was maintainable or not and if
maintainable as to whether the order could
have been passed in the facts and
circumstances of the case and on the basis
of Police Report.

12. An authority or Court can pass an
order only in accordance with law and after
considering the pleadings and material on
record even if a party does not appear for
any reason.

13. The section 145 Cr.P.C., relevant
for consideration of the case in hand, is
extracted here-in-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) For the purposes of this
section, the expression "land or water"
includes buildings, markets, fisheries,
crops or other produce of land, and the
rents or profits of any such property.

(3) A copy of the order shall be
served in the manner provided by this
Code for the service of a summons upon
such person or persons as the Magistrate
may direct, and at least one copy shall be
published by being affixed to some
conspicuous place at or near the subject
of dispute.

(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, persue 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
4 All. Mohd. Kasim Usmani & Ors. Vs. State of U.P. & Ors.
945
that party had been in possession on the
date of his order under sub-section (1).

(5) Nothing in this section shall
preclude any party so required to attend, or
any other person interested, from showing
that no such dispute as aforesaid exists or
has existed; and in such case the
Magistrate shall cancel his said order, and
all further proceedings thereon shall be
stayed, but, subject to such cancellation,
the order of the Magistrate under subsection (1) shall be final.

(6) (a) If the Magistrate decides
that one of the parties was, or should under
the proviso to subsection (4) be treated as
being, in such possession of the said
subject, he shall issue an order declaring
such party to be entitled to possession
thereof until evicted therefrom in due
course
of
law,
and
forbidding
all
disturbance of such possession until such
eviction; and when he proceeds under the
proviso to sub-section (4), may restore to
possession
the
party
forcibly
and
wrongfully dispossessed.

(b) The order made under this
sub-section shall be served and published
in the manner laid down in sub-section (3).

(7) When any party to any such
proceeding dies, the Magistrate may cause
the legal representative of the deceased
party to be made a party to the proceeding
and shall thereupon continue the inquiry,
and if any question arises as to who the
legal representative of a deceased party for
the purposes of such proceeding is, all
persons claiming to be representatives of
the deceased party shall be made parties
thereto.

(8) If the Magistrate is of opinion
that any crop or other produce of the
property, the subject of dispute in a
proceeding under this section pending
before him, is subject to speedy and natural
decay, he may make an order for the proper
custody or sale of such property, and, upon
the completion of the inquiry, shall make
such order for the disposal of such
property, or the sale-proceeds thereof, as
he thinks fit.

(9) The Magistrate may, if he
thinks fit, at any stage of the proceedings
under this section, on the application of
either party, issue a summons to any
witness directing him to attend or to
produce any document or thing.

(10) Nothing in this section shall
be deemed to be in derogation of powers of
the Magistrate to proceed under section
107."

14. Section 146 Cr.P.C. provides the
power to attach the subject of dispute and
to appoint a receiver, which is extracted
here-in-below:-

"146. Power to attach subject of
dispute and to appoint receiver.-

(1) If the Magistrate at any time
after making the order under sub-section
(1) of section 145 considers the case to be
one of emergency, or if he decides that none
of the parties was then in such possession
as is referred to in section 145, or if he is
unable to satisfy himself as to which of
them was then in such possession of the
subject of dispute, he may attach the
subject of dispute until a competent Court
has determined the rights of the parties
thereto with regard to the person entitled to
the possession thereof:

Provided that such Magistrate
may withdraw the attachment at any time if
he is satisfied that there is no longer any
likelihood of breach of the peace with
regard to the subject of dispute.

(2) When the Magistrate attaches
the subject of dispute, he may, if no receiver
in relation to such subject of dispute has
been appointed by any Civil Court, make
946 INDIAN LAW REPORTS ALLAHABAD SERIES
such arrangements as he considers proper
for looking after the property or if he thinks
fit, appoint a receiver thereof, who shall
have, subject to the control of the
Magistrate, all the powers of a receiver
appointed under the Code of Civil
Procedure, 1908 (5 of 1908):

Provided that in the event of a
receiver being subsequently appointed in
relation to the subject of dispute by any
Civil Court, the Magistrate-

(a) shall order the receiver
appointed by him to hand over the
possession of the subject of dispute to the
receiver appointed by the Civil Court and
shall thereafter discharge the receiver
appointed by him;

(b)
may
make
such
other
incidental or consequential orders as may
be just."

15. In view of above, on being
satisfied by a police officer's report or upon
other information that a dispute is likely to
cause a breach of peace exists concerning
any land or water or the boundaries thereof
within his jurisdiction, an Executive
Magistrate shall make an order recording
the grounds of satisfaction and requiring
the parties concerned in such dispute to
appear and file their respective claims
regarding the actual possession of disputed
subject. Thereafter, proceeding in the
manner provided under Section 145, after
passing the order under sub-section (1), if
the Magistrate finds the case to be one of
emergency or if he decides that some of the
parties came in such possession or he is
unable to satisfy as to who was in such
possession of the subject or dispute, he may
attach the subject of dispute until a
competent court determines the rights of
the parties therein with regard to the person
entitled thereon. However, the attachment
may be withdrawn at any time if the
learned Magistrate is satisfied that there is
no longer likelihood of breach of peace
subject to dispute. Thus, in case after
passing an order under Section 145 (1)
Cr.P.C. from a report of police officer or
any other information that there is a dispute
in regard to any land or water or boundaries
thereof, an Executive Magistrate may pass
an order under Section 145 (1) and if
during
the
proceedings
thereof,
he
considers that there is an emergency in the
case or none of the parties was in
possession or if he is unable to satisfy
himself as to who was in possession, he
may pass an order of attachment of the
property in dispute until a competent court
determines the rights of the parties with
regard to the possession.

16. Adverting to the facts of the
present case, respondent no.4 filed an
application under Section 145 Cr.P.C. on
30.01.2015, stating therein that the grand
father, late Mohd. Bux was the owner and
in possession of the disputed property and
after his death, the respondent no.4
inherited it. His grand father got the map
sanctioned in the year 1939 for boundaries
and thereafter again in the year 1964 and
got the boundaries constructed. After his
death, the father of the respondent no.4 got
the map sanctioned for a room and latrine
but due to financial constraints, he had to
go out for livelihood and gave some money
to Mohd. Naseem Usmani residing near the
house for approval of map and also told
that in case the money would be short, he
may incur further which he would give to
him but Mohd. Naseem Usmani and his
sons colluded and got a forged map
sanctioned in the name of Mohd. Naseem
Usmani and informed to the father of the
applicant that the map has been sanctioned.
The applicant i.e. the respondent no.4's
father got the room and latrine constructed.
4 All. Mohd. Kasim Usmani & Ors. Vs. State of U.P. & Ors.
947
He asked to the respondents i.e. the
petitioners for the map but they said that it
is missing. His father had not given any
attention to it. The applicant was also
residing with his father in Delhi. The father
of the applicant had full faith on Mohd.
Naseem Usmani, therefore, the house and
plot was left with him. The father of the
applicant died in the year 1992. The
applicant thereafter could not come about
18-20 years. Thereafter, when he came
back there was a lot of changes in the
property and there is a wall on some part
and constructions on the other. Some of the
portion is also on rent. The applicant gave
an application in Nagar Palika Parishad for
a copy of the map and for registering the
house in his name, then he came to know
that the respondents had got their names
also recorded in the Nagar Palika Parishad.
The house number was changed from 313
to 497. In regard to the aforesaid, fraud and
cheating by the respondent, the applicant
lodged an F.I.R. on 08.06.2013, in which
the respondents have been bailed out. It
was also submitted that the respondents i.e.
the petitioners are trying to sell the property
and other things without permission.
Accordingly, he prayed for proceedings
under
Section
145
Cr.P.C.
and
for
attachment to save the property.

17. The aforesaid averments made by
respondent no.4 indicates that he has
admitted the possession of the petitioners
and the predecessor-in-interest of the
petitioners. The report was called by the
learned
Magistrate
on
the
aforesaid
application from the in-charge Inspector,
Kotwali Nagar by means of the order dated
22.04.2015. In response thereof, the report
was submitted by the Police Station-
Kotwali
Nagar,
District-
Bahraich
disclosing therein the boundaries of the
property-in-dispute and stating that in half
of the portion of the property in dispute,
there is a furniture shop by a firm of Mohd.
Haneef and on some portion there is lock
and it has been informed by the people
residing in the vicinity that Mohd. Usmani
is residing in the same, who is presently
residing in Lucknow in regard to which
F.I.R. has been lodged by Mohd. Nasir son
of Naseerullah against the respondents. The
report was submitted on 30.06.2015. It has
also been stated in the report that both the
parties have filed the suites in regard to the
property in dispute bearing Case No.63 of
2014; Mohd. Usmani and Others Vs.
Nafees in the court of civil judge (Jr.
Division) Bahraich and Regular Suit No.45
of 2015; Mohd. Nafees Vs. Usmani in the
court
of
Civil
Judge
(Jr.
Division)
Bahraich. Thereafter, it has been stated that
there is tension between the parties with
regard to possession on the property in
dispute, therefore, there is a need of legal
action with regard to the property in dispute
during pendency. Thus, it is apparent that
the possession of the petitioners has been
admitted in the report also and it has also
been admitted that the petitioners were not
on the spot at the time of the inspection and
the report was only for tension (Kasheedgi)
between
the
parties
with
regard
to
possession on the property in question but
there is no report of any emergency for
passing an order for attachment in the
matter. The fact of filing of the suit by both
the parties were also disclosed in the report.

18. On the basis of aforesaid report,
the order dated 20.08.2015 was passed by
the learned Magistrate requiring the parties
to appear and file there written statement
with their claims of actual possession of the
property in dispute. In response thereof the
respondent no.4 appeared through his
counsel and filed an application under
Section 146 (1) Cr.P.C. stating therein that
948 INDIAN LAW REPORTS ALLAHABAD SERIES
the other parties i.e. the petitioners used to
make tussle for possession on the land in
dispute and there is a possibility of breach
of peace, therefore, there is a need of
attachment of disputed property. It appears
that no document with regard to the
ownership
or
possession
were
filed
alongwith the application either under
Section 145 Cr.P.C. or under Section 146
(1) Cr.P.C. Thus, merely on the basis of the
police report, the order dated 17.10.2016
was passed under Section 146 (1) Cr.P.C.,
which is also apparent from the perusal of
the order, which is annexed as annexure
no.21 of the petition. In pursuance of the
said order a report was submitted by the
Police Station- Kotwali Nagar, Bahraich
that there is a hardware shop of Mohd.
Haneef in some part of the property in
dispute, who has told that he has got the
sale deed of the same from the respondent
Mohd. Usmani and in some part Anas son
of Haji Zaheer Ahmad is residing on rent,
therefore, the house could not be vacated
and attached. A request was also made to
appoint some competent magistrate for
execution of the order after getting it
vacated. Thus, from this report also it is
apparent that the property in dispute was in
possession of the persons mentioned in the
report out of which one was doing business
of hardware and the other was residing on
rent but there is no report that there was
any emergency of attachment on account of
emergent need of likelihood of breach of
peach or tranquility. The aforesaid order
passed by the learned Magistrate on
17.10.2016
was
challenged
by
the
petitioners in Revision No.184 of 2016,
which was allowed by means of the order
dated 24.12.2016 and the matter was
remanded back to pass a fresh order on
merit on application under Section 145
Cr.P.C. after affording opportunity of
hearing to the parties.

19. In pursuance of the aforesaid
order though the petitioners had not
appeared before the learned Magistrate but
the learned Magistrate passed the impugned
order dated 24.06.2017 without calling any
fresh report and merely on the ground that
there is no change in situation of
circumstances under which the order dated
17.10.2016
was
passed,
whereas
as
discussed above, even the order dated
17.10.2016 was not passed in accordance
with law after considering as to whether
there is any emergency or need of passing
the said order because there was no dispute
in regard to possession on the property in
dispute, which was also apparent from the
pleadings made in the application by the
respondent no.4 and the report of police.
Both had admitted that the petitioners were
in possession of the property in dispute.
The learned Magistrate has even not
considered that two civil suits were
pending, one by each party. The learned
Magistrate also failed to record any
findings as to when civil suits have been
filed by the both the parties, as to whether
the application under Section 145 Cr.P.C.
was maintainable or not and even if it was
maintainable, whether any order could have
been passed in the facts and circumstances
of the present case or not.

20. The suit for permanent injunction
has been filed by the petitioners on
24.03.2014, bearing Regular Suit No.63 of
2014 and other suit has been filed by the
respondent no.4 for declaration of his title,
cancellation of sale deed dated 17.01.2013
and
for
permanent
injunction
on
24.02.2015. The pleadings made in the suit
filed by the respondent no.4 are similar to
the pleadings made in the application under
Section 145 Cr.P.C. as disclosed above and
a specific plea has been taken by the
petitioner in paragraph- 21 of the petition
4 All. Mohd. Kasim Usmani & Ors. Vs. State of U.P. & Ors.
949
that after coming to know about the filing
of the suit of permanent injunction by the
petitioners, the application under Section
145 Cr.P.C. has been filed by the
respondent no.4, which has not been
specifically denied in paragraph-33 of the
counter affidavit and only a vague reply has
been given. Para- 21 of the petition and
para- 33 of the counter affidavit are
extracted here-in-below:-

"21. That, in the meantime, by
concealing the fact of the pendency of
Regular
Civil
Suit
for
Permanent
Injunction filed by the petitioners nos.1 and
2, the opp-party no.4, malafidely with quite
false and flimsy averments, only with
intention to dispossess the petitioners nos.1
and 2, from the ancestral property in
dispute, filed an application under the
provisions of Section 145 of the Code of
Criminal Procedure before the opp-party
no.2 on 30.1.2015. A true copy of the
aforesaid application, filed under the
provisions of Section 145 of the Code of
Criminal Procedure before the opp-party
no.2, by opp-party no.4, on 30.1.2015, is
being filed herewith as Annexure No.16.

33- That contents of paragraph
No. 21 of the petition are misconceived
hence denied. It is stated that application
u/s 145 Cr.P.C. was filed in the compelling
circumstances."

21. In view of above, it appears that
after coming to know about filing of the
suit for permanent injunction by the
petitioners, the application under Section
145 Cr.P.C. was filed on 30.01.2015. The
contention of the learned counsel for the
respondent no.4 that he after coming to
know about the pendency of the suit filed
by the petitioners had filed a written
statement on 16.04.2015, does not indicate
that he came to know only at that time as
no specific date of knowledge has been
indicated, therefore, it is nothing but a
misconceived plea. Even otherwise when
admittedly the title was not in favour of the
respondent no.4 and he had subsequently
filed a suit for declaration of his title, he
could have, instead of filing an application
under Section 145, filed an application in
the suit in which the relief for injunction as
well as attachment could have been prayed
and learned Magistrate without considering
it and that there was no emergency of
passing any order as no report was also
called even after remand of the matter, and
even no incident was also reported during
this period which may indicate that a
dispute likely to cause a breach of the
peace exist, passed the impugned order,
which could not have been passed. Learned
Revisional Court also failed to consider it
and the grounds of remand.

22. The Hon'ble Supreme Court, in
the case of Amresh Tiwari Vs. Lalta
Prasad Dubey and Another (Supra), has
held that 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
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. The relevant
paragraphs 12, 13 and 14 are extracted
here-in-below:-

"12. The question then is whether
there is any infirmity in the order of the
SDM discontinuing the proceedings under
Section 145 of the Criminal Procedure
Code. The law on this subject-matter has
950 INDIAN LAW REPORTS ALLAHABAD SERIES
been settled by the decision of this Court in
the case of Ram Sumer Puri Mahant v.
State of U.P. [(1985) 1 SCC 427 : 1985
SCC (Cri) 98] In this case it has been held
as follows : (SCC pp. 428-29, para 2)

"When
a
civil
litigation
is
pending for the property wherein the
question of possession is involved and has
been adjudicated, we see hardly any
justification
for
initiating
a
parallel
criminal proceeding under Section 145 of
the Code. There is no scope to doubt or
dispute the position that the decree of the
civil court is binding on the criminal court
in a matter like the one before us. Counsel
for Respondents 2-5 was not in a position
to challenge the proposition that parallel
proceedings should not be permitted to
continue and in the event of a decree of the
civil court, the criminal court should not be
allowed
to
invoke
its
jurisdiction
particularly when possession is being
examined by the civil court and parties are
in a position to approach the civil court for
interim orders such as injunction or
appointment of receiver for adequate
protection of the property during pendency
of the dispute. Multiplicity of litigation is
not in the interest of the parties nor should
public time be allowed to be wasted over
meaningless litigation. We are, therefore,
satisfied that parallel proceedings should
not continue...."

13. We are unable to accept the
submission that the principles laid down in
Ram Sumer case [(1985) 1 SCC 427 : 1985
SCC (Cri) 98] would only apply if the civil
court has already adjudicated on the
dispute regarding the property and given a
finding. In our view Ram Sumer case
[(1985) 1 SCC 427 : 1985 SCC (Cri) 98] is
laying down that multiplicity of litigation
should be avoided as it is not in the interest
of the parties and public time would be
wasted over meaningless litigation. On this
principle it has been held that when
possession is being examined by the civil
court and parties are in a position to
approach the civil court for adequate
protection of the property during the
pendency of the dispute, the parallel
proceedings i.e. Section 145 proceedings
should not continue.

14. Reliance has been placed on
the
case
of Jhummamal v. State
of
M.P. [(1988) 4 SCC 452 : 1988 SCC (Cri)
974] It is submitted that this authority lays
down that merely because a civil suit is
pending does not mean that proceedings
under Section 145 of the Criminal
Procedure Code should be set at naught. In
our view this authority does not lay down
any such broad proposition. In this case the
proceedings under Section 145 of the
Criminal Procedure Code had resulted in a
concluded order. Thereafter the party, who
had lost, filed civil proceedings. After filing
the civil proceedings he prayed that the
final order passed in the Section 145
proceedings be quashed. It is in that
context that this Court held that merely
because a civil suit had been filed did not
mean that the concluded order under
Section 145 of the Criminal Procedure
Code should be quashed. This is entirely a
different situation. In this case the civil suit
had been filed first. An order of status quo
had already been passed by the competent
civil
court.
Thereafter
Section
145
proceedings were commenced. No final
order had been passed in the proceedings
under Section 145. In our view on the facts
of the present case the ratio laid down
in Ram Sumer case [(1985) 1 SCC 427 :
1985 SCC (Cri) 98] fully applies. 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
4 All. Mohd. Kasim Usmani & Ors. Vs. State of U.P. & Ors.
951
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 orders of the
civil court would be binding on the
Magistrate."

23. The Hon'ble Supreme Court, in
the case of Mahant Ram Saran Dass Vs.
Harish Mohan and Another (Supra), has
taken similar view as aforesaid.

24. The Hon'ble Supreme Court, in
the case of Ashok Kumar Vs.