# Naval Kishore & Ors. Revisionists v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 268
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-16
- **Case number:** Criminal Revision No. 2610 of 2022
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naval-kishore-ors-revisionists-v-state-of-u-p-ors-49005
- **Pages:** 9

## Headnote

Criminal Law- Code of Criminal Procedure,
1973-
Sections
145
&
146
-
The
proceeding under Section 145 Cr.P.C. and
146 Cr.P.C. are summary in nature and the
power is conferred upon the executive
Magistrate. The object of this part is
merely to maintain law and order and to
prevent to breach of peace by maintaining
one or other parties of the possession,
which the court finds that they had
immediately before the dispute and until
the actual right of one of the parties has
been determined by the civil court. The
Magistrate should careful enough to see
that the criminal court are not being used
by the parties for the settlement of civil
dispute or for manoeuvring of possession
for the previous and subsequent civil
litigation or easy way of keeping the
possession of the property in dispute
without going to the civil court or for
driving the other side of the civil court to
prove his title. The action which may
ultimately be taken is not of punitive but
preventive one and for that purposes of is
provisional only, until such time, a formal
adjudication over the rights affected may
be obtained and carried into effect by the
competent court to deal with the matter in
due course of law. The action to be taken
is quasi executive action, and having for
its object and justification. The prevention
of breach of public peace, the existence of
dispute is likely ot cause breach of peace
is a condition laying at the root of the
power conferred.

The proceedings under Section 145 and 146 of
the Cr.P.C are preventive and not punitive, the
same to be taken recourse to for only
preventing the likelihood of breach of public
peace, and do not confer any right or title to
any of the parties, as the same is the domain of
the civil court and hence it is incumbent for the
Magistrate to prevent the misuse of the said
proceedings by either of the parties who may
attempt to possess the property in dispute by
circumventing the course of law. (Para 25)
9 All. Naval Kishore & Ors. Vs. State of U.P. & Ors.
269
Criminal Revision allowed. (E-3)

## Text

268 INDIAN LAW REPORTS ALLAHABAD SERIES
contravention of the provisions of Cow
Slaughter Act or rule of Uttar Pradesh Cow
Slaughter Rules. In above circumstances,
the
Special
Magistrate,
Agra
has
jurisdiction to decide the release of the
vehicle in question by which the skin
leather of cow or its progeny was
transported.
Learned
Magistrate
has
jurisdiction
to
decide
the
release
application of the revisionist/applicant and
learned lower court has illegally held that
he has no jurisdiction to hear on the release
application of Canter DL1GC5909, hence,
the revision is liable to be allowed and
order of the lower court is liable to be setaside.

16. Accordingly, the criminal revision
is allowed. The impugned order dated
11.11.2021
passed
by
Special
Chief
Judicial Magistrate, Agra is set-aside and
learned Special Chief Judicial Magistrate,
Agra is directed to decide the release
application of applicant within a period of
one month from the date of production of
the certified copy of this order.
----------
(2022) 9 ILRA 268
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2022

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Revision No. 2610 of 2022

Naval Kishore & Ors. ...Revisionists
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionists:
Sri Bala Nath Mishra, Sri Ram Vishal Mishra,
Sri Sachin Mishra

Counsel for the Opposite Parties:
G.A., Sri Indra Jit Singh, Sri Rakesh
Chandra Upadhyay, Sri Sharad Tripathi, Sri
O.P. Sing, (Sr. Adv.)

Criminal Law- Code of Criminal Procedure,
1973-
Sections
145
&
146
-
The
proceeding under Section 145 Cr.P.C. and
146 Cr.P.C. are summary in nature and the
power is conferred upon the executive
Magistrate. The object of this part is
merely to maintain law and order and to
prevent to breach of peace by maintaining
one or other parties of the possession,
which the court finds that they had
immediately before the dispute and until
the actual right of one of the parties has
been determined by the civil court. The
Magistrate should careful enough to see
that the criminal court are not being used
by the parties for the settlement of civil
dispute or for manoeuvring of possession
for the previous and subsequent civil
litigation or easy way of keeping the
possession of the property in dispute
without going to the civil court or for
driving the other side of the civil court to
prove his title. The action which may
ultimately be taken is not of punitive but
preventive one and for that purposes of is
provisional only, until such time, a formal
adjudication over the rights affected may
be obtained and carried into effect by the
competent court to deal with the matter in
due course of law. The action to be taken
is quasi executive action, and having for
its object and justification. The prevention
of breach of public peace, the existence of
dispute is likely ot cause breach of peace
is a condition laying at the root of the
power conferred.

The proceedings under Section 145 and 146 of
the Cr.P.C are preventive and not punitive, the
same to be taken recourse to for only
preventing the likelihood of breach of public
peace, and do not confer any right or title to
any of the parties, as the same is the domain of
the civil court and hence it is incumbent for the
Magistrate to prevent the misuse of the said
proceedings by either of the parties who may
attempt to possess the property in dispute by
circumventing the course of law. (Para 25)
9 All. Naval Kishore & Ors. Vs. State of U.P. & Ors.
269
Criminal Revision allowed. (E-3)

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Pursuant to my earlier orders of this
Court dated 08.08.2022, the Court was
compelled to call Sri Prabhakar Chaudhary,
S.S.P.,Agra and Sri Bhupendra Singh,
S.H.O., Tajganj, Agra before the Court. On
the earlier occasion dated 19.07.2022, the
S.H.O., Tajganj, Agra was summoned but his
conspicuous absence in the defiance of this
Court's earlier order has compelled the Court
to summon the S.S.P, Agra. Both the police
officials are present before this Court today.

2. Heard S/Shri Bala Nath Mishra, Sri
Sachin Mishra, learned counsel for the
revisionists, Sri O.P.Singh, Senior Advocate
assisted by Rakesh Chandra Upadhyay,
learned counsel for the opposite party and
learned AGA for the State and perused the
record.

3. This is an interesting case, whereby,
the S.H.O. of P.S. Tajganj assuming the
powers of civil court have decided the title
and the ownership over property in dispute in
the proceeding under Section 145 and 146
Cr.P.C. and have handed over the property to
the person of his choice i.e. opposite party
nos. 3 and 4. The concerned City Magistrate,
Agra blindly toeing the lines of S.H.O.,
Tajganj,
vide
impugned
order
dated
31.05.2022 have dropped the proceeding
under Section 145(5) Cr.P.C. and have
consciously passed the ambiguous order
dated 31.05.2022 giving full opportunity to
the concerned S.H.O. to interpret the order in
his own way and hand over the keys &
possession to opposite party nos. 3 and 4.

It is pertinent to mention here that
property in question is still subject matter
of civil suit in which interim injunction
order is in favour of the revisionists but
ignoring the parallel proceedings before the
civil court, concerned City Magistrate,
Agra and S.H.O., Tajganj, Agra have
committed a judicial blunder by keeping
the injunction order at bay, just to benefit
his own person (opposite party nos. 3 and
4) have committed all these illegalities &
irregularities, ignoring the settled principles
and norms in this regard.

4. This is the crux of the revision,
which has to be adjudicated by this Court.

5. By means of the instant revision,
the revisionists are jointly assailing the
legality and validity of the order passed by
the then S.I.-Sri Amar Malik, P.S. Tajganj,
District Agra dated 26.04.2022 and present
impugned order passed by IVth Additional
City Magistrate Agra (respondent no.2)
dated 31.05.2022, whereby the concerned
City Magistrate have passed an ambiguous
order, giving long rope to the S.H.O.,
Tajganj interpret the same in his own way,
and thus has handed over the possession &
keys to the opposite party nos. 3 and 4,
under the teeth of injunction order about
the same shop, by the learned Civil
Judge(S.D.), Agra.

6. The perusal of the order impugned
gives a bird's eye view of the entire
controversy involved, which is spelled
here-in-below:-

7. At the outset, it is submitted that
the entire controversy revolves around
Shop No. 15/77A, M.P. Pura, Fatehabad
Road, Tajganj, Agra, where the revisionists
were running Sweet Mart Shop under the
name and style of "Shree Ji Mishtan
Bhandar". The shop in question was
initially owned by one Brijendra Kushwaha
@ Brijendra Singh who was recorded as
270 INDIAN LAW REPORTS ALLAHABAD SERIES
tenure holder of concerned Khasra as per
the records of Nagar Nigam, Agra. The said
khasra owing as many as ten shops over the
place, out of which shop no. 15/77A,
M.P.Pura, Fatehabad Road, Tajganj, Agra
was given to the revisionists as his tenants.
The revisionists remained in the said shop
from 22.06.2006 to 2016 after executing an
annual rental
agreements on various
successive years signed by Brijendra
Kushwaha and the revisionists. There was
no dispute between the revisionists and
Brijendra Kushwaha up to the year 2013. It
seems that dispute was cropped up between
collaterals of Brijendra Kushwaha and qua
him, who filed a civil suit as Original Suit
No. 1271 of 2013, Inre: Sri Amar Singh
and others Vs. Sri Vivek Gupta and others
making Shree Ji Mishtan Bhandar as well
as Brijendra Kushwaha as its defendants.

8. It is also surfaced from the records
of the case, that some dispute were also
cropped up between the revisionists and
Brijendra Kushwaha, (the owner of the
property) and thus the revisionists has filed
civil suit bearing Original Suit No. 1240 of
2014 Inre: Sri Nawal Kishore and others
Vs. Sri Brijendra Singh and others with the
prayer to issue a decree of permanent
prohibitory injunction in favour of the
plaintiffs(revisionists)
against
the
defendants, restraining the defendants or
his agents/successors/associates not to
interfere in plaintiff's peaceful possession
over the property (shop in dispute).

9. Initially, learned Civil Judge (S.D.),
Agra vide order dated 09.09.2014 keeping
in view the plaintiffs(revisionists) are in the
actual physical possession and doing their
business from the aforesaid property/shop
in question, have directed to parties to
maintain status quo over the site and after
exchange of pleadings have eventually
allowed the plaintiffs(revisionists) ''8C'
application vide order dated 13.10.2021
granting temporary injunction in favour of
the plaintiffs(revisionists) during pendency
of suit and as such on the strength of status
quo,
thereafter
injunction
order
the
revisionists/plaintiffs,who are in the actual
physical possession of shop in question,
were
doing
their
business
work
uninterruptedly & peacefully.

10. During the pendency of the
aforesaid suit the defendant no.1 Brijendra
Kushwaha died on 19.03.2015 thereafter
descendant of late Brijendra Kushwaha,
who were impleaded as defendants in place
of Brijendra Kushwaha who have executed
a sale deed in 2016 of the entire property in
favour of Devendra Singh Chauhan and
Sanjeev Singh Chauhan (opposite party
nos. 3 and 4) by executing a sale deed
dated 02.09.2016.

11. Interesting part of the issue is that
there opposite party nos. 3 and 4 have
consciously purchased the property, which
is subject matter of litigation. Still they
have decided to purchase it. It means they
have purchased a litigation as well as the
shop. Consequently, after purchasing the
property under the litigation, they ave
stepped into the shoes of the descendants of
late Brijendra Kushwaha through the
registered sale deed dated 02.09.2016.

12.

Learned
counsel
for
the
revisionists submits, that as soon as they
came to know that opposite party nos. 3
and 4 have purchased the property in
question of the suit, they have moved an
application under Order VI Rule 17 read
with Section 151 of CPC, impleading
Devendra Singh Chauhan and Sanjeev
Singh Chauhan as defendant nos. 13 and 14
respectively with a suitable prayer to get
9 All. Naval Kishore & Ors. Vs. State of U.P. & Ors.
271
them impleaded in the prayer part. This
application was moved for impleading the
aforesaid person as defendant nos.13 and
14 by making an application on 30.11.2021
which is remained undecided till date
though pending since November 2021.

13. It is further contended that as soon
as the opposite party nos. 3 and 4 have
stepped into the shoes of erstwhile owner,
they have tailored a fabricated story and
lodged an FIR on 10.08.2021 as case crime
no. 0546 of 2021 under Sections 406, 420,
384, 447, 120B, 323 and 504 IPC, P.S.
Tajganj, District Agra and further in order
to
exert
undue
pressure
upon
the
revisionists, the opposite party nos. 3 and 4
approached the S.I., Tajganj by cooking up
an imaginary story regarding law & order
situation and have managed to have police
report under Section 145 Cr.P.C. addressed
to IVth A.C.J.M., Agra on which the then,
S.I. Tajganj without any proceeding on its
own have given a "स्वप्रेरर्ा आख्या"
requesting the authorities proceed under
Section 145 Cr.P.C.. It is contended by the
learned counsel for the revisionists, that
this is a million dollar question that under
how
and
what
circumstances
S.I.,
P.S.Tajganj, Agra has given this report to
the City Magistrate with regard to the shop
in question? The answer is quite obvious,
which needs no elaboration, this report
dated 11.09.2021 itself is a tainted and
motivated one, just to oblige one of the
contesting parties by the then S.I. Mr.
Neeraj Kumar, P.S. Tajganj, Agra, a
overzealous Sub-Inspector. It is further
argued that till 11.09.2021, there was no
proceedings pending for consideration by
concerned City Magistrate, Agra under
Section 145(1) Cr.P.C. namely, Neeraj
Kumar.

14. After the aforesaid report, was
submitted by Mr. Neeraj Kumar, S.I.,
Tajganj, Agra, thereafter, the opposite party
nos. 3 and 4 moved an application under
Section 145 Cr.P.C. as Computer Case No.
D-2021101010008326/2021,
Inre:
Devendra Singh Chauhan and another Vs.
Nawal Kishore and anothers, on which
learned Additional City Magistrate-IVth ,
Agra issued notices under Section 145(1)
Cr.P.C. to the revisionists relying upon the
aforesaid reports of S.I.

15. It is contended by the counsel for
the revisionists, that on one hand learned
Civil Judge (S.D.), Agra, after hearing both
the parties i.e. plaintiffs(revisionists)and
the defendants nos. 1/1 to 1/6 and
defendant no. 2 while deciding the
Application 8C in O.S. No. 1240 of 2014
have confirmed the earlier order of
maintaining the status quo over the site and
this time has granted temporary injunction
in favour of the plaintiffs(revisionists) on
13.10.2021. On the other hand, the
concerned City Magistrate, Agra, despite of
the fact, was full in knowledge of above
temporary
injunction
on
30.11.2021,
ignoring the same on 30.11.2021 passed an
earlier order under Section 146(1) Cr.P.C.
directing the Incharge Inspector, P.S.
Tajganj, Agra to seal the property (shop) in
dispute after taking its physical possession
from the revisionist. The only ground
spelled out in the order impugned, is that
since opposite party nos. 3 and 4 are not
parties as deficiencies in O.S. No. 1240 of
2014, thus the said temporary injunction
would not be operational against them.

It is urged by the counsel for the
revisionist that this is the bogus reasoning
by the City Magistrate while passing the
impugned
order
of
seizure
dated
30.11.2021.
The
property
in
question/subject
matter
of
both
the
proceedings are the same i.e. 15/77A,
272 INDIAN LAW REPORTS ALLAHABAD SERIES
M.P.Pura Fatehabad Road, Tajganj, Agra &
opposite party nos. 3 and 4 came into
picture in the year 2016. The temporary
injunction was granted in favour of the
plaintiffs(revisionists) on 13.10.2021 after
hearing the rival parties at that time and if
opposite party nos. 3 and 4 consciously
stepped into the shoes of erstwhile
defendants, then by implication of law, the
said temporary injunction would also
deemed to be applicable to them, the
impleadment application for impleading the
opposite party nos. 3 and 4 pending before
concerned civil court for consideration and
appropriate orders.

16. It is contended by the learned
counsel for the revisionists that all these
castle has been raised on an imaginary
story and created a sham and frivolous
threat to the peace and tranquillity to the
society. It is further contended that where
the police has played a partisan role in
favour of the opposite party nos. 3 and 4
for the obvious reasons, who had given a
report prior to the application of opposite
party nos. 3 and 4 under Section 145(1)
Cr.P.C.. On this application rapid action
was ensured by the local police and the
IVth Additional City Magistrate, Agra,
while passing the order under Section
146(1) Cr.P.C..

Excercise of the powers of
Section 145 & 146 Cr.P.C., is to maintain
the peace, tranquillity & the order in the
society. Though it is grey issue but in order
to justifying its order under Sections
145/146 Cr.P.C, the concerned police as
well as City Magistrate must spell out some
confidence generating material on record
justifying their objective satisfaction with
regard to invoking its powers under Section
145/146 Cr.P.C. mere using of hyperbolic
expressions would not going to justify the
orders of City Magistrate or Sub-Inspector.

17. Meanwhile, the revisionists
approached this Court by filing the Crl.
Revision No. 1104 of 2021, in which this
Court on 08.04.2022 passed the following
order, the relevant extract is quoted herein
below:-

"Order on Criminal Revision

By means of the present criminal
revision, the revisionist is assailing the
legality and validity of the two orders
under section 145(1) dated 30.11.2021 and
its seizure under section 146(1) dated
02.12.2021.

Submission made by learned
counsel for the revisionist is that despite of
the clear cut interim injunction order, while
allowing 8-C application on 13.10.2021, a
parallel proceeding under section 145(1)
and
146(1)
has
been
initiated
by
respondent nos.3 and 4. Learned City
Magistrate, without taking into account the
interim order, has passed the aforesaid
impugned orders. Learned counsel for the
revisionist also submitted that it is settled
principal of law that when the court of civil
proceeding is already seized with the
matter, the proceeding of 145 and 146
which are summary in nature, cannot be
invoked.

Under the circumstances, let
notice be issued to opposite party no.3 and
4 through the Chief Judicial Magistrate,
Agra to file their detailed counter affidavit
within next two weeks.

Learned
A.G.A.
who
is
representing opposite party nos.1 and 2 are
9 All. Naval Kishore & Ors. Vs. State of U.P. & Ors.
273
also required to take suitable instructions
in the matter and file relevant counter
affidavit within the same period.

Learned
counsel
for
the
revisionist may also file rejoinder affidavit
within three days thereafter.

Put up this matter as fresh on
28.04.2022."

18. From the order sheet of the
criminal revision, it is clear that time was
granted to learned AGA to file counter
affidavit and the notices were issued to
opposite party nos. 3 and 4 through CJM,
Agra to file detailed counter affidavit but
ignoring the directions of the Court to file
detailed counter affidavit the opposite party
nos. 3 and 4 on their own, surreptitiously
on 20.04.2022, moved an application by
concerned City Magistrate, Agra, in which
they themselves certified that, there is no
threat to the peace & tranquillity to the
society & thus opposite party nos. 3 and 4
moved an application for dropping the
proceedings under Sections 145(5) Cr.P.C.
with additional prayer that property in
question may be released in their (opposite
party nos. 3 and 4) favour. This by itself is
a strange prayer and perfect clever example
to dupe and play jugglery with legal
procedure. As observed above, the local
police was dancing on the tune of opposite
party nos. 3 and 4. This time Mr. Amar
Malik, S.I. Tajganj, Agra came to rescue of
opposite party nos. 3 and 4, who, after
responding to the above application for
dropping the proceedings under Section
145(5) Cr.P.C. have reported to letter to
concerned
City
Magistrate,
Agra
on
26.04.2022, which reads thus:-

" महोिय,

सािर अविर् िरना है गि उपरोक्त
प्रा०पत्र िी जााँच मुझ उ०गन० द्वारा िी ियी र्ो
वाक्ार् इस प्रिार पाये गि आवेिि-श्री िेवेन्द्र
गसंह चौहान पुत्र श्री इन्दल गसंह चौहान गनवासी-
15/77एम०पी०पुरा,
िुम्मट
थाना-र्ाजिंज
जनपि-आिरा द्वारा बास्ते अन्तितर् धारा-145(5)
सी०आर०पी०सी० मे गववागिर् सम्पगत्त सख्या-
15/77ए िो अवमुक्त गिये जाने िे सम्बन्ध मे
आवेिन गिया िया है। उपरोक्त गववागिर्
सम्पगत्त िे सम्बन्ध मे बाि सख्या- 8326/2021
अन्तितर्
धारा-145
सी०आर०पी०सी०
िे
अनुपालन मे िोनो पक्षो िी मौज ििी मे िुिी
िी िायतवाही-गिनााँि-02/12/2021 िो िी जा
चुिी है उसी गिन से गवपक्षी-नवलगिशोर,
सुषमा िेवी, िैलािेवी द्वारा श्री०जी० गमष्ठान
भण्डार िी िुिान िो गववागिर् सम्पगत्त िे
सामने सड़ि पार सम्पगत्त सख्या-18/162/एच-1
मे िुिान िोलिर सुचारु रुप से चलायी जा रही
है। उपरोक्त िायतवाही िे वाि िोनो पक्षो मे
गिसी प्रिार िी िोई शान्ती-व्यवस्था भंि नही
िी ियी है और िोई गववाि नही है अर्ः उक्त
सम्पगत्त िो गनयमानुसार जायज मागलि िे हि
मे अवमुक्त गिये जाने िे सम्बन्ध मे थाना-हाजा
िो िोई आपगत्त नही है।"

The expression "जायज मागलि" is
very much significant expression used by
concern Sub-Inspector here, of which the
concerned
police
officer
of
Tajganj
deliberately used this expression, to keep
these blanks open, to be used by him in
future.

19. The aforesaid application was
remained pending. From the order sheet it
is culled out that the aforesaid application
was filed on 20.04.2022 but on 23.05.2022
behind the back of the revisionists, the
matter was heard ex-parte and eventually
the
impugned
order,
whereby
the
proceeding of Section 145 Cr.P.C. was
274 INDIAN LAW REPORTS ALLAHABAD SERIES
dropped and all the previous orders were
stand quashed in the light of the unilateral
declaration by the opposite party nos. 3 and
4, that there is no dispute over the property
in question, directing the S.H.O., P.S.
Tajganj, Agra to release the property in
question bearing no. 15/77A, M.P.Pura,
Fatehabad Road,Tajganj, Agra from the
alleged seizure within a week. The
concerned S.H.O. readily obeyed and
released the property in question in favour
of opposite party nos. 3 and 4.

The
order
impugned
dated
31.05.2022 records thus :-

"आिेश

सम्पगत्त संख्या 15/77ए एम०पी०पुरा
िे
सम्बन्ध
में
वाि
संख्या
डी
202101010008326
अन्तितर्
धारा-145
ि०प्र०स० िी समस्त िायतवाही िो उक्त धारा
िी उपधारा 145(5) िे अन्तितर् रोिा जार्ा है
एवं समस्त आिेश रद्द गिये जार्े है। धारा
146(1) िे अन्तितर् गववागिर् सम्पगत्त िे सम्बन्ध
में पक्षिारों िे मध्य िब्जे िा गववाि न रह जाने
िे िारर् पररशाखन्त भंि िी सम्भावना नहीं होने
िे आधार पर उक्त सम्पगत्त िी िुिी वापस ली
जार्ी है। प्रभारी गनरीक्षि र्ाजिंज आिरा िो
गनिेगशर् गिया जार्ा है गि सम्पगत्त संख्या
15/77ए एम०पी०पुरा िो िुिी से अवमुक्त िर
अनुपालन आख्या एि सप्ताह में न्यायालय िो
प्रस्तुर् िरें। पत्रावली वाि आवश्यि िायतवाही
िाखिल िफ्तर िी जाए।"

Suffice to say the order of City
Magistrate, Agra on his own has passed an
ambiguous order without specifying to whom
the property in question be handed over. It is
no where specifies that, after the seizure
would lifted, to whom the property would be
handed over. Taking the advantage of these
blanks, the concerned S.I. Tajganj, Agra
dishonestly released the shops in question in
favour of opposite party nos. 3 and 4, though
the same were taken from the revisionists. It
is aruged, that in all fairness, the concerned
S.I. should have return back the property in
question from whom he has taken.

20. Per contra Sri O.P.Singh, learned
Senior Counsel filed a detailed counter
affidavit mentioning that revisionists have
never paid any rent and were illegally
occupied the property in question, neither he
had deposited any agreed rent to the erstwhile
owner Brijendra Kushwaha nor to his legal
heirs or to his representatives and occupying
the property in question. All these arguments
are tangent to the primary issue, But he could
not dispute the fact that there is temporary
injunction in favour of plaintiffs(revsionists)
of Original Suit No. 1240 of 2014. It is
further contended by the counsel that the said
interim order would not be operative against
the opposite party nos. 3 and 4 as they are not
the party in the aforesaid proceeding.

21. Sri O.P.Singh, learned Senior
Counsel was completely at the loss to justify
the conduct of concerned police officer of
Tajganj, Agra, who after playing gimmick
with the procedure of the law and have
assured the powers of civil court, have
decided the ownership and possession of the
property on his own under the teeth of
temporary
injunction
which
is
still
operational in favour of revisionists have
delivered the keys & possession to opposite
party nos. 3 and 4.

This is basic crux, long and short of
the entire controversy.

22. After hearing the learned counsel
of both the parties and putting the aforesaid
facts in the linear way, it is abundantly
9 All. Naval Kishore & Ors. Vs. State of U.P. & Ors.
275
clear that property in question is 15/77A,
M.P.Pura, Fatehabad Road, Tajganj, Agra
which is under actual physical possession
of the revsionists and prior to initiate the
proceeding and pursuant to the orders of
Section 146(1) Cr.P.C., the concerned
S.H.O. vide order dated 02.12.2021 has
taken the possession of the property in
question from the revisionists itself, then in
all fairness, the concerned SHO ought to
have handed over the keys to the person
from whom he has taken the possession and
should not have decided the title or the
question of possession on his own. The
concerned S.H.O. has clearly transgress his
limits by handing over the property in
dispute i.e. shop no. 15/77A, M.P.Pura,
Fatehabad Road, Tajganj, Agra to the
opposite party no.3 and 4.

23. After coming to know this
development
behind
the
back,
the
plaintiffs(revsionists)
immediately
on
03.06.2022 moved an application to recall
the exparte order dated 31.05.2022 before
the Additional City Magistrate-IVth, Agra
but it is alleged by learned counsel for the
revisionist, that City Magistrate and the
local police of P.S. Tajganj, Agra are hand
in gloves with each other and as such the
said application was rejected by the
concerned Additional City Magistrate-IVth,
Agra by making a mention that after
passing
the
order
under
Section
145(5)Cr.P.C., the court cannot recall its
own order and become ''functus officio' and
thus rejected the said recall application.

24. The City Magistrate has passed
palpably vague and ambiguous order
without making any mention or clarifying
to whom the property in question should be
handed over. The Magistrate ought to have
clearly specified with the property in
question should be handed over to the
revisionists but these ambiguity was kept
purposely
by
the
Additional
City
Magistrate in its order to extend benefits to
the opposite party nos. 3 and 4. Taking the
advantage of this void the partisan S.H.O.
of P.S. Tajganj had played fraud upon the
procedure of the Court and has clearly
played partisan role while handing over the
property to his own person i.e. opposite
party nos. 3 and 4, by making the entire
civil proceeding to a BIG ZERO. The SHO
concerned is not permitted to hold a court
of decide the title or possession of the
property in question under Chapter X Part
''D' of the Code of Criminal Procedure.

25. It is settled principle of law that
the proceeding under Section 145 Cr.P.C.
and 146 Cr.P.C. are summary in nature and
the power is conferred upon the executive
Magistrate. The object of this part is merely
to maintain law and order and to prevent to
breach of peace by maintaining one or
other parties of the possession, which the
court finds that they had immediately
before the dispute and until the actual right
of one of the parties has been determined
by the civil court. The Magistrate should
careful enough to see that the criminal
court are not being used by the parties for
the settlement of civil dispute or for
manoeuvring of possession for the previous
and subsequent civil litigation or easy way
of keeping the possession of the property in
dispute without going to the civil court or
for driving the other side of the civil court
to prove his title. The action which may
ultimately be taken is not of punitive but
preventive one and for that purposes of is
provisional only, until such time, a formal
adjudication over the rights affected may
be obtained and carried into effect by the
competent court to deal with the matter in
due course of law. The action to be taken is
quasi executive action, and having for its
276 INDIAN LAW REPORTS ALLAHABAD SERIES
object and justification. The prevention of
breach of public peace, the existence of
dispute is likely ot cause breach of peace is
a condition laying at the root of the power
conferred.

26. Putting all these orders in the line,
this Court has regrettably deprecate the
conduct of the concerned Additional City
Magistrate,Agra and warns to act fairly in
future, and quashed his order dated
31.05.2022 and expunge the orders of
S.H.O., dated 26.04.2022 and 04.06.2022
(rejecting the application to recall his order
dated 31.05.2022).

27. I.G., Agra Range/ SSP, Agra is
directed that

(i) to hold indepth inquiry into the
matter within 15 days from the date of
production of certified copy of this order
before them and take a suitable disciplinary
action against the present S.H.O., P.S.
Tajganj, Agra, and all other concerned SubInspectors who involve in this scam, who
have illegally handed over the keys of the
shop in question to the opposite party nos.
3 and 4 after playing partisan role.

(ii) After quashing all the three
orders as mentioned above, S.S.P., Agra is
directed to ensure that the shop in question
no. 15/77A M.P.Pura, Fatehabad Road,
Tajganj, Agra should be immediately taken
a vacant actual physical possession from
the opposite party nos. 3 and 4 and shall
put a lock and key after sealing the
property latest by 10.09.2022 positively.

(iii) Circle Officer, Tajganj, Agra
shall give a recent report after assessing the
peace and tranquillity, the justification and
the exigency of imposing Section 145/146
Cr.P.C.in the nearby area on account of
seizure of the property and furnish the
aforesaid report to the new City Magistrate
dealing with the issue.

(iv) District Magistrate, Agra is
requested to confer the records of the case
to some other City Magistrate to re-visit
and re-decide the entire issue after taking
into account the settled principles of law in
this regard within next two months after
hearing both the parties, in the light of
settled principles of law laid down by
Hon'ble Apex Court and this Court.

28. With this observation, the present
criminal revision stands ALLOWED with
the aforesaid conditions.
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(2022) 9 ILRA 276
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.08.2022

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Revision No. 2660 of 2022

Gaurav @ Govind ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri
Raghawendra
Kumar
Singh,
Sri
Yogendra Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law- Code of Criminal Procedure,
1973 - Section 154, 174 & 154 Cr.P.C
deals with information in cognizable
offence for lodging F.I.R. Section 154
Cr.P.C. which stipulates that there must
be
an
information
relating
to
the
commission of cognizable offence and the
information can be termed as F.I.R., there