# Nathoo Das v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 590
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-25
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nathoo-das-v-state-of-u-p-ors-45861
- **Pages:** 4

## Headnote

Criminal Law- Code of Criminal ProcedureSection 145 -Proceedings u/s 145 Cr.P.C. -been
dropped by Court below-alleged likelihood of
breach of peace-since begining no likelihood of
breach of peace or dispute regarding possession
-as agricultural land duly recorded and the
possession is with the recorded holders since
2014-no dispute since 2014 till 2018- Court
below rightly dropped the proceedings

Writ Petition dismissed. (E-9)

List of cases cited:-

## Text

590 INDIAN LAW REPORTS ALLAHABAD SERIES

29. It applies where there is any
cheating by personation but the entire
contents of FIR make no allegation of
cheating of Informant/Complainant by
personation, therefore, Section 66-D of
Amendment Act, 2008, ex facie has no
application.

30. We may also place on record that
Amendment Act, 2008 has been enforced with
effect from 27.10.2009 by notification issued by
Central Government under Section 1(2) of
Amendment Act, 2008.

31. Learned Senior Counsel appearing for
respondent-4 however, contended that in an
internationally
recognized
temple
of
a
professional education, the faculty members of
higher caste have ill-treated and ridiculed
colleague faculty member of outburst caste i.e.
Scheduled Castes, hence, in such a matter, this
Court should not interfere in Criminal Misc.
Writ Petition under Article 226 and the matter
should be left for trial.

32. We do not find that the above
submission is correct for the reason that if no
offence is made out, even if what is stated in the
FIR is treated to be correct then no person can
be allowed to unnecessarily suffer the trauma of
criminal trial.

33. In view thereof, we are satisfied that no
offence under the sections in which report has
been registered are made out even if
allegations stated in FIR are taken to be
correct ex facie and that being so,
criminal proceedings initiated against
petitioners cannot be said to be justified.

34. In the result, writ petition is
allowed. FIR dated 18.11.2018 registered
as Case Crime No.1283 of 2018, under
Sections 500 IPC, Section 66D of
Amendment Act, 2008 and Section
3(2)(va) of Act, 1989, at Police Station
Kalyanpur, District Kanpur Nagar and
also subsequent proceedings thereto are
hereby quashed.
----------
(2020)06ILR A590
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Matters Under Article 227 No. - 1148 of 2020
(Criminal)

Nathoo Das ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pradeep Kumar Pal

Counsel for the Respondents:
G.A., Sri Adya Prasad Tewari, Sri Pradeep
Kumar Rai, Sri Sheo Shankar Tripathi

Criminal Law- Code of Criminal ProcedureSection 145 -Proceedings u/s 145 Cr.P.C. -been
dropped by Court below-alleged likelihood of
breach of peace-since begining no likelihood of
breach of peace or dispute regarding possession
-as agricultural land duly recorded and the
possession is with the recorded holders since
2014-no dispute since 2014 till 2018- Court
below rightly dropped the proceedings

Writ Petition dismissed. (E-9)

List of cases cited:-

1. Amresh Tiwari vs. Lalta Prasad Dubey and
others, reported in 2000 (2) J.I.C. 44 (SC)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This petition, under Article 227 of
the Constitution of India, has been filed by
6 All. Nathoo Das Vs. State of U.P. & Ors.
591
the petitioner, Nathoo Das, with a prayer
for setting aside impugned order of the
court
of
Sub
Divisional
Magistrate,
Nichlaul, Maharajganj, dated 30.7.2018,
passed in a proceeding, under Section 145
of
Code
of
Criminal
Procedure
(Hereinafter, in short, referred to as
Cr.P.C.) as well as, order, dated 09.01.2018
of learned Sessions Judge, Maharajganj,
passed in Criminal Revision No.43 of
2019.

2. Learned counsel for the petitioner
argued that the impugned order by the Sub
Divisional Magistrate, Nichlaul, District
Maharajganj,
was
passed
over
an
application, moved by Mutur Das, dropping
proceeding, under Section 145 of Cr.P.C.,
whereas, there is every likelihood of breach
of peace, but, proceeding, under Section
145 of Cr.P.C., has been dropped.

3. This order of Sub Divisional
Magistrate, Nichlaul, Maharajganj, was
challenged in a Criminal Revision before
the
Sessions
Judge,
Maharajganj,
as
Criminal Revision No.43 of 2019, and it
was rejected vide order, dated 9.1.2020.

4. Both of the courts below have
failed to appreciate facts and law placed
before them. It was failure of observance of
settled position of law. Hence, for invoking
power
of
general
superintendence,
conferred upon the High Court, by Article
227 of the Constitution of India, over its
subordinate court, this petition has been
preferred by the petitioner, with above
prayer.

5. Learned counsel for other side has
vehemently opposed this petition with this
contention
that
this
proceeding
was
pending since 2004 and there was a
judgment of revenue court, in a suit, filed
by the applicant, for ownership and
possession over disputed land and after its
decision
nothing
remained
there
for
likelihood of breach of peace. Hence this
proceeding was dismissed by the learned
Magistrate. Impugned order was challenged
before the revisional court, where too, it
was dismissed.

6. Section 145 of Cr.P.C. provides
procedure where dispute concerning land or
water is likely to cause breach of peace,
which says that "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 requring 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".

7. Meaning thereby, the Executive
Magistrate is to satisfy about existence of
any likelihood of breach of peace. This
satisfaction may be either on the report of
the Police Station, concerned, or by
otherwise, but, the condition precedent for
exercising
power,
under
this
power,
conferred by Section 145 of Cr.P.C., is the
satisfaction of the Executive Magistrate,
regarding existence of any likelihood of
breach of peace and this was reported by
the Station Officer of the Police Station,
concerned, that there remained some
dispute over agricultural land, detailed in
the report, in between Mutur Ddas and
Nathoo Das, wheresas, land is recorded in
the revenue record, in the name of Mutur
592 INDIAN LAW REPORTS ALLAHABAD SERIES
Das and one other persons, who are in
possession over the land in question.
They have sown the crop and had
harvested the same, but, Nathoo Das,
applicant herein, had filed a case,
regarding ownership, in the revenue
court as well as in Civil court and he
claimed possession over it, thereby,
creating a likelihood of breach of peace.
Upon this report, proceeding, under
Section 145 of Cr.P.C., was initiated,
wherein, opportunity to both sides was
afforded
and
this
proceeding
was
pending since 2004, and ultimately, the
Magistrate opined that there is no
likelihood of breach of peace, hence,
proceeding was dropped.

8. A criminal revision, against this
order, was filed, wherein, revisional
court has directed for proceeding, in
above proceeding, thenafter, proceeding
was initiated, but, an application by
Mutur Das was filed mentioning therein
that the judgment of revenue court, in
pending suit, is there and there is no
likelihood of breach of peace. On the
basis of it, Magistrate, passed impugned
order,
whereby,
proceeding,
under
Section 145 of Cr.P.C., was dropped.

9. This order was challenged
before the court of Sessions, i.e.,
revisional
court,
wherein,
learned
revisional Judge opined that even in
Police
report,
it
was
specifically
mentioned that Mutur Das and Shiv
Mangal were entered in the revenue
record as owners of the agricultural
land, in question, and they have sown
the crop and had harvested it. Meaning
thereby, there is no likelihood of
breach of peace, regarding possession
over the immovable property at that
point of time. It was Nathoo Das,
applicant herein, who was claiming his
right over the agricultural land in
question and for which, he had filed
suit in revenue court as well as in civil
court, wherein, judgment of revenue
court was passed.

10. As per law laid down by the
Apex Court, in the case of Amresh
Tiwari vs. Lalta Prasad Dubey and
others, reported in 2000 (2) J.I.C. 44
(SC), if a civil suit is pending or
proceeding for determination of right
and possession, in between the parties,
has been instituted and is pending,
then, proceeding, under Section 145 of
Cr.P.C., is not to be taken course.

11.

In
present
case,
since
beginning, there was no likelihood of
breach of peace or a dispute, regarding
possession, because agricultural land,
in
question,
was
reported
to
be
recorded in the name of Mutur Das and
Shiv Mangal, who are in possession
and
since
2004
till
2018,
there
occurred no breach of peace at any
point of time, rather, case in revenue
court was decided by the
court,
concerned. Hence, both of the courts
below have rightly and appropriately
appreciated facts and law placed before
them. There is no failure of justice,
requiring any indulgence of this Court,
in
exercise
of
power
of
general
superintendence by the High Court
over its subordinate courts, conferred
by Article 227 of the Constitution of
India.

12. Accordingly, in view of what
has been discussed above, this petition,
under Article 227 of Constitution of
India, being devoid of merits, fails and
is
dismissed.
6 All. Sarfaraz & Ors. Vs. State of U.P. & Anr.
593
----------
(2020)06ILR A593
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Matters Under Article 227 No. - 1513 of 2020
(Criminal)

Sarfaraz & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri M.P.S. Chauhan

Counsel for the Respondents:
A.G.A.

A. Initially- Non Cogniable Report filed u/s 323,
504 I.P.C., subsequently, without moving an
Application

u/s
155
(2)
Cr.P.C.-same
occurance-registered u/s 323, 504, 308 IPCalleged illegal-initially injuries opined to be
simple-but later-he was taken to another
hospital-subsequent report makes clear-injuries
grave-chargesheet rightly filed u/s 308 IPCMagistrate rightly took cognizance.

Writ Petition dismissed. (E-9)

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This petition, under Article 227 of the
Constitution of India, has been filed with a
prayer for setting aside impugned order dated
10.12.2019 of court of Additional Sessions
Judge, Court No. 4, Aligarh, passed in Criminal
Revision No. 375 of 2019 along with
cognizance taking order dated 02.07.2019,
passed by court of Additional Chief Judicial
Magistrate, Court No. 4, Aligarh in Criminal
Case No. 1034 of 2019, under Section 323,
504, 308 I.P.C., Police Station Akarabad,
District Aligarh.

2. Heard learned counsel for the
petitioners and learned A.G.A. for State.

3. Learned counsel for petitioners argued
that it was failure of appreciation of facts and
law, placed before both the courts below.
Initially a report of non-cognizable offence was
filed
under
Sections
323,
504
I.P.C.
Subsequently, without moving an application
under Section 155(2) Cr.P.C., the same
occurrence
was
registered
for
offence
punishable under Sections 323, 504, 308 I.P.C.,
wherein investigation resulted submission of
charge sheet, as above, but injuries were found
to be simple in first medico legal report,
followed by subsequent medico legal report as
well as C.T. Scan, whereas a cross case on
behalf of present petitioners are there against
present opposite side. This cognizance was
taken for offence punishable, as above, whereas
no evidence for offence punishable under
Section 308 I.P.C. was there. This cognizance
taking order was challenged before court of
revision, which was decided by revisional court,
as above, wherein revision was dismissed.
Hence, both the courts below failed to
appreciate facts, placed on record. Hence, under
power of General Superintendence of High
Court over Subordinate Courts in Uttar Pradesh,
this petition is with above prayer.

4. Learned A.G.A. has vehemently
opposed the petition with this contention
that injured was having injuries, written in
medico legal report, and still he is under
treatment for it.

5. From the very perusal of first
information report, lodged on 22.05.2018,
as non-cognizable offence information
report, under Section 155 Cr.P.C., it is
apparent that present petitioners were
accused in it and they have been assigned
role of giving assault to Noor Hassan on
11.05.2018 at about 1 P.M., under joint