# Pawan Singhania Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 161
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-16
- **Case number:** Criminal Revision No. 1848 of 2010
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-singhania-revisionist-v-state-of-u-p-anr-50085
- **Pages:** 4

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 145 & 146(1) - Criminal
Revision - - Civil Suit - Right to possession -
revisionist challenged the order passed by
Additional Sessions Judge in Criminal Revision
filed by opposite party no. 2 by which Revisional
court set aside the order passed by the City
Magistrate, U/s 145 & 146(1) Cr.P.C. merely on
the
ground
that
civil
suit,
which
was
subsequently filed, is pending between the
parties - There is apprehension that civil suit is
pending
between
parties
and
they
can
adjudicate their rights through civil court - ,
there is no purpose for proceeding under
Section 145 Cr.P.C. - Apex Court clearly held
that, proceeding u/s 145 of Cr.P.C. cannot be
dropped merely on the ground that one party
had approached civil court not with regard to
title or right to possession therefore in view of
law and fact, the impugned order passed by the
Additional Sessions Judge, in Criminal Revision
is absolutely erroneous and passed on nonapplication of mind - hence, impugned order is
liable to be quashed and it is accordingly
quashed - The matter is remanded back and the
City Magistrate is directed to conclude the
proceeding, preferably within a period of six
months - directions issued accordingly. (Para -
5, 7)

Criminal Revision is disposed of. (E-11)

List of Cases cited:

## Text

4 All. Pawan Singhania Vs. State of U.P. & Anr.
161
month from today for compliance of the
present order. As provided u/s 5 of
Probation
of
Offenders
Act,
1958,
revisionist shall pay a compensation of
Rs.10,000/- which shall be deposited in
District Legal Services Authority, within
one month from today.

32. In case of breach of any said
conditions, the accused/revisionist shall
subject himself to undergo the sentence.

33. Let the copy of this judgment as
well as Lower Court record be transmitted
to the concerned Trial Court forthwith for
necessary compliance.
----------
(2023) 4 ILRA 161
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2023

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Revision No. 1848 of 2010

Pawan Singhania ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri A.P. Tewari, Sri S.S. Tripathi, Sri
Sudhanshu Pandey

Counsel for the Opposite Parties:
G.A., Sri B.K. Tripathi

Criminal Law - Criminal Procedure Code,
1973 - Sections 145 & 146(1) - Criminal
Revision - - Civil Suit - Right to possession -
revisionist challenged the order passed by
Additional Sessions Judge in Criminal Revision
filed by opposite party no. 2 by which Revisional
court set aside the order passed by the City
Magistrate, U/s 145 & 146(1) Cr.P.C. merely on
the
ground
that
civil
suit,
which
was
subsequently filed, is pending between the
parties - There is apprehension that civil suit is
pending
between
parties
and
they
can
adjudicate their rights through civil court - ,
there is no purpose for proceeding under
Section 145 Cr.P.C. - Apex Court clearly held
that, proceeding u/s 145 of Cr.P.C. cannot be
dropped merely on the ground that one party
had approached civil court not with regard to
title or right to possession therefore in view of
law and fact, the impugned order passed by the
Additional Sessions Judge, in Criminal Revision
is absolutely erroneous and passed on nonapplication of mind - hence, impugned order is
liable to be quashed and it is accordingly
quashed - The matter is remanded back and the
City Magistrate is directed to conclude the
proceeding, preferably within a period of six
months - directions issued accordingly. (Para -
5, 7)

Criminal Revision is disposed of. (E-11)

List of Cases cited:

1. Prakash Chand Sachdeva Vs St. & anr. reported in
AIR 1994 SC 1436

2. Amresh Tiwari Vs Lalta Prasad Dubey & ors. (AIR
2000 Supreme court 1504),

3. Jhummamal @ Devandas Vs St. of M. P. reported
in, (AIR 1988 SC 1973),

4. Ganga Bux Singh Vs Sukhdin, AIR 1959 All 141

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Sudhanshu Pandey,
learned counsel for the revisionist and Sri
Hari Pratap Gupta, learned AGA for the
State.

2. By means of present revision, the
revisionist has challenged the order dated
28.04.2010 passed by the Additional
Sessions Judge/Court No.10, Gorakhpur in
Criminal
Revision
No.217
of
2010
162 INDIAN LAW REPORTS ALLAHABAD SERIES
(Deepankar Pandey vs the State of U.P. and
another) filed by the opposite party no.2 by
which the revisional court set aside the
order passed by the City Magistrate,
Gorakhpur, under Sections 145 and 146(1)
Cr.P.C. merely on the ground that civil suit,
which was subsequently filed, is pending
between the parties.

3. Contention of learned counsel for
the revisionist is that impugned order
passed by the Additional Sessions Judge,
Gorakhpur is absolutely erroneous as
learned court below has failed to consider
that the civil suit is not in the right to
possession but simply on the question of
possession and prayer was made in that suit
that he may not be evicted except adopt due
procedural law. It was further contended
that the Apex Court in the judgement of
Prakash Chand Sachdeva vs State and
another reported in AIR 1994 Supreme
Court 1436 has held that merely pendency
of civil suit between the parties can not be a
ground for dropping the proceeding under
Section 145 Cr.P.C. if there is no title or
right of possession to the subject matter of
suit. The civil suit was filed by the opposite
party no.2 subsequent to the initiation of
proceeding under Section 145 Cr.P.C.
merely on the ground that there is some
dispute between the parties on the basis of
agreement to sale cannot be a ground to
drop the proceeding under Section 145
Cr.P.C.

4. Learned counsel for the revisionist
further relied on the case of Amresh Tiwari
vs Lalta Prasad Dubey and another
reported in AIR 2000 Supreme Court
1504, wherein the Apex Court has already
held in the case of Jhummamal alias
Devandas vs. State of Madhya Pradesh
reported in, (1988) 4 SCC 452 : (AIR 1988
SC 1973 : 1989 Cri LJ 82) that "this authority
lays down that merely because a civil suit is
pending does not mean that proceedings
under Section 145, Criminal Procedure Code
should be set a naught. In our view this
authority does not lay down any such broad
proposition. In this case the proceedings
under Section 145, Criminal Procedure Code
had resulted in a concluded order. Thereafter
the party, who had lost, filed civil
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 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
summers case (AIR 1985 SC 472 : 1985 Cri
LJ 752) (supra) 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 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 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."

5. On the other hand, learned AGA
for the State submits that there is
apprehension that civil suit is pending
between the parties and they can adjudicate
4 All. Pawan Singhania Vs. State of U.P. & Anr.
163
their rights through civil court, therefore,
there is no purpose for proceeding under
Section 145 Cr.P.C.

6. Considering the rival contention of
the parties, I am of the view that impugned
order was passed mainly on the ground that
civil suit is pending between the parties
without looking to the nature of leave of
civil suit and without even going into the
question that civil suit is not regarding the
possession but merely to protect the
possession till the process of law adopted
and from perusal of plaint of the suit No.
709 of 2009, it appears that there is no title
dispute between the parties and private
respondents did not claim ownership or
possession on the basis of any right,
therefore, there is no occasion to drop the
proceeding under Section 145 Cr.P.C.
when there is purely question of possession
is pending before the Magistrate even in the
judgement relied upon by the counsel for
the revisionist. The Apex Court clearly
observed that question of possession is
involved then the Magistrate is empowered
to take cognizance under Section 145
Cr.P.C. Even in the judgement of Full
Bench of this court reported AIR 1959 All
141, Ganga Bux Singh vs Sukhdin has
settled the issue.

"It has been held that the
proceedings under Sections 145 Cr.P.C.
are only in the interest of the maintenance
of peace and not in the interest of the
preservation of the rights of any party. It
was further held that the proceedings under
Section 145 of the Code of Criminal
Procedure are materially different from the
proceedings in a proper suit.

From the nature of the provisions
it is clear that the Magistrate has been
given this power primarily to preserve
peace. The individual rights are affected
only incidentally.

The nature of the enquiry is quasi
civil. It is an incursion by the criminal
court in the jurisdiction of the civil court. It
is, therefore, necessary that this incursion
should be carefully circumscribed to the
extend absolutely necessary discharging
the function laid on the Magistrate of
preserving the peace. The provisions of
Section 145, Code of Criminal Procedure
make that ample clear.

The Magistrate does not enquire
into the merits of the claims of the parties
or even their right to possess the subject of
the dispute. He is only concerned with the
question as to who was in actual physical
possession on the relevant date. This also
indicates that the starting point of the
proceedings) must be the date when he was
satisfied that an apprehension of a breach
of the peace existed and not even he
received the first information."

7. The Apex Court clearly held that
proceeding under Section 145 Cr.P.C.
cannot be dropped merely on the ground
that one party had approached civil court
not with regard to title or right to
possession therefore in view of law and
fact, the impugned order dated 28.04.2010
passed by the Additional Sessions Judge,
Gorakhpur in Criminal Revision No. 217 of
2010 is absolutely erroneous and passed on
non-application of mind, therefore, the
impugned order is liable to be quashed and
it is accordingly quashed.

8. The matter is remanded back and the
City Magistrate is directed to conclude the
proceeding under Section 145 as well as 146
Cr.P.C. preferably within a period of six months
from the date of production of a certified copy
of this order, strictly in accordance with law.
164 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The revision is finally disposed of.
----------
(2023) 4 ILRA 164
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 2608 of 2022

Smt. Suman ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Pankaj Kumar Shukla

Counsel for the Opposite Party:
G.A., Sri Devesh Kumar Sharma

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 293, 311, 313 &
482 - India Penal Code, 1860 - Sections
323, 325, 504 & 506 - Criminal Revision -
revisionist challenged the order passed by the
trial court by which the application moved u/s
311 of Cr.P.C. by the informant requesting to
summoned the Doctor as witness who had
examined the injured person was rejected on
the ground that the injuries alleged to be
caused to the injured are said to be simple in
nature and it is not necessary that if the
investigator has not taken the St.ment u/s
161 Cr.P.C., a person cannot be summoned as
well as on the ground that the prosecution is
itself opposing the application on the ground
that an advocate can be appointed by the
informant to assist the prosecution, but they
cannot
act
as
prosecution
officer
-
maintainability of application - Held, it was
the duty of the Trial Court to summon the
witness of concern doctor suo-moto, - and -
the judge of a criminal court is not a silent
spectator - it is his duty to be vigilant and
conscious and if there is apprehension of
injustice during the court of trial - further, the
charge-sheet is not a borderline, which
cannot it crossed by the trial court, it is not a
Holy Bible, Quran or Gita or any other
mandatory enactment, which must be obeyed
in every event, if the learned trial court finds
that the injured were medically examined by a
particular doctor and he has prepared the
injury report, it was the duty of court to
summon him instead of fact that his St.ment
was not recorded by the I.O. and he was not
arrayed in the list of witnesses of chargesheet - Hence, any person and any such
person can be summoned as witness, which
shows that there is not limit in exercising the
discretion of the court in any way - Revision is
allowed and impugned order is quashed.
(Para - 12, 13, 16, 18, 22, 32)

Criminal Revision allowed. (E-11)

List of Cases cited:

1. Rekha Murakka Vs St. of W. B .& ors., J.T
2019 (11) S.C 291

2. Mohan Lal Shamji Soni Vs U.O.I., A.I.R 1991
S.C. 1346

3. R.B. Mithani Vs St. of Mah., A.I.R 1971 S.C
1630

4. Rama Paswan Vs St. of Jharkhand, 2007
Cr.L.J 2750

5. Raku Manjal Vs St. of Jharkhand, 2006 Cr.L.J
293

6. Raj Deo Sharma Vs St. of Bihar, AIR 1999 SC
3524

7. Shailendra Kumar Vs St. of Bihar, AIR 2002 SC
270

8. Govind Ram Vs St. of U.P., 1999 Cr.L.J 1955
(Allahabad)

9. Ramasami Vs Sriniwasan, 1987 (3) Crimes 89
Madras.

10. Bhima Mudali and Ors. Vs St. of Orissa &
anr., 1996 Cr.L.J. 1899 Orrisa

11. Chemo Steel Limited Vs St. of Andhra
Pradesh 2005 Cr.L.J 716