# Rajeshwar Singh v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 685
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Criminal Misc. Writ Petition No. 5637 of 2006
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeshwar-singh-v-state-of-u-p-ors-51949
- **Pages:** 7

## Headnote

A. Criminal Lawr-Constitution of India,
1950-Article 226-Criminal Procedure Code,
1973-Section 145-The grandfather of the
petitioner instituted a proceeding u/s 145
Crpc against his own real son before SDM
Chunar
whereby
a
preliminary
order
attaching property was passed-the dispute
which
may
cause
breach
of
peach
continued but the SDM dropped the
proceeding-the property was handed over
to a Supurdgar and he died before the first
round of litigation -it was the duty of the
SDM to appoint any other person in place
of deceased supurdgar but that step was
never
taken,
instead,
the
heirs
of
supurdgar kept taking care of the property
and this is too glaring and gross negligence
on the part of the SDM concerned-The
rights and duties of supurdgar cannot
devolve upon the heirs of a supurdgarHence, impugned orders are set aside and
the court concerned is directed to open the
proceeding u/s 145 CrPC and direct for
substitution of legal representative.(Para 1
to 15)

B. Where a piquant situation arises, in
matters where a party has died during the
pendency of proceeding u/s 145 Crpc and
a serious dispute arises as to who is the
legal heir, the Magistrate concerned cannot
refuse to exercise its jurisdiction, just
because he has no power to decide as to
who is the 'heir' of the deceased or just
because the matter of inheritance is
fiercely fought in a civil court. The purpose
of the proceedings which may be pending
between the parties in a civil court or a
revenue court. Definitely, the SDM is not
empowered to decide the question of
inheritance however, he can always be
implead a legal representative to continue
the proceedings with a larger interest of
the parties and the society in mind.(Para
11)

The petition is disposed of. (E-6)

List of Cases cited:

## Text

5 All. Rajeshwar Singh Vs. State of U.P. & Ors.
685
the appeal is dismissed as barred by
limitation.
----------
(2024) 5 ILRA 685
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Misc. Writ Petition No. 5637 of 2006

Rajeshwar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajiv Lochan Shukla, Sri Anil Kumar
Shukla, Sri Devesh Vikram, Sri Shailendra K.
Singh, Sri Shivakant

Counsel for the Respondents:
G.A., Sri Abhishek Kumar Chaubey, Sri
Pradeep Pandey, Sri S.N. Verma, Sri S.S.
Pandey

A. Criminal Lawr-Constitution of India,
1950-Article 226-Criminal Procedure Code,
1973-Section 145-The grandfather of the
petitioner instituted a proceeding u/s 145
Crpc against his own real son before SDM
Chunar
whereby
a
preliminary
order
attaching property was passed-the dispute
which
may
cause
breach
of
peach
continued but the SDM dropped the
proceeding-the property was handed over
to a Supurdgar and he died before the first
round of litigation -it was the duty of the
SDM to appoint any other person in place
of deceased supurdgar but that step was
never
taken,
instead,
the
heirs
of
supurdgar kept taking care of the property
and this is too glaring and gross negligence
on the part of the SDM concerned-The
rights and duties of supurdgar cannot
devolve upon the heirs of a supurdgarHence, impugned orders are set aside and
the court concerned is directed to open the
proceeding u/s 145 CrPC and direct for
substitution of legal representative.(Para 1
to 15)

B. Where a piquant situation arises, in
matters where a party has died during the
pendency of proceeding u/s 145 Crpc and
a serious dispute arises as to who is the
legal heir, the Magistrate concerned cannot
refuse to exercise its jurisdiction, just
because he has no power to decide as to
who is the 'heir' of the deceased or just
because the matter of inheritance is
fiercely fought in a civil court. The purpose
of the proceedings which may be pending
between the parties in a civil court or a
revenue court. Definitely, the SDM is not
empowered to decide the question of
inheritance however, he can always be
implead a legal representative to continue
the proceedings with a larger interest of
the parties and the society in mind.(Para
11)

The petition is disposed of. (E-6)

List of Cases cited:

1. Ram Sumer Puri Mahant Vs St. of U.P.

2. Amresh Tiwari Vs Lata Prasad Dubey

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Ram Lakhan Deobanshi
and Sri Shailendra Kumar Singh, learned
counsels for the petitioner, Sri Anil Kumar
Mishra,
learned
counsel
for
private
respondent no.4 and Sri R.K. Gupta, learned
A.G.A. for the State.

2. Written submissions/arguments
filed on behalf of the petitioner and the
private respondent no.4, are taken on record.

3. This criminal miscellaneous writ
petition has been filed by petitioner
Rajeshwar Singh against respondent no.4
686 INDIAN LAW REPORTS ALLAHABAD SERIES
Tez Bali and three others with a prayer as
below:

"Issue a writ, order or direction
in the nature of certiorari calling for the
records of the case and quashing the
impugned orders dated 3.1.2006 and
6.3.2006 passed by the respondent nos. 3
and 2 respectively (Annexure nos. 7 and 9
to the writ petition)"

4. The facts relevant for the
controversy are:

•
The
grandfather
(late
Parmananda) of the petitioner Rajeshwar
Singh instituted a proceeding under section
145 Cr.P.C. against his own real son before
the S.D.M Chunar, whereby a preliminary
order, attaching the property was passed on
04.03.1972.

• A criminal reference no. 13 of
1973 was made to the civil court, under
section 146 Cr.P.C. and the civil court
passed an order dated 03.05.1974, holding
that grandfather of the petitioner, late
Parmanand has been in possession over the
plots in question, on the date of passing of
preliminary order. Challenging the aforesaid
order of 03.05.1974, the respondent no.4
Tejbali s/o Parmanand preferred a writ
petition before this Court.

• During the pendency of aforesaid
writ petition Parmanand died therefore, the
writ petition no. 2690 of 1974 was dismissed
on 20.11.1996 and interim order was
discharged.

• In aforesaid order, the High
Court made it clear that it will be open to the
petitioner to raise a question about the
desirability of continuing the proceeding
under section 145 Cr.P.C., before the
Magistrate concerned.

• Respondent no.4- Tejbali filed
an application before the S.D.M., with a
prayer that the disputed property may be
released in his favour till the mutation
proceeding
pending
before
the
Commissioner, Varanasi gets decided.

• The instant petitioner Rajeshwar
Singh objected to aforesaid application filed
by Tejbali, submitting that at the time when
proceeding under section 145 Cr.P.C. was
initiated,
his
father
Dayaram
and
grandfather Parmanand were in possession
and therefore after their death, the property
had come into his possession.

• The court of S.D.M. Marihan,
Mirzapur, by its order dated 11.04.2001, deattached the disputed property and released
the same in favour of Tejbali and the
petitioner s/o Lt. Dayaram, subject to final
decision by Addl. Commissioner, Varanasi
Zone and dropped the proceeding under
section 145 Cr.P.C.

• The instant petitioner as well as
the instant respondent no.4 challenged the
aforesaid order (dated 11.04.2001) by filing
two separate criminal revisions i.e. criminal
revision no. 142 of 2001 by the petitioner
and criminal revision no. 98 of 2001 by the
respondent no.4.

• Both the revisions were decided
by a common order dated 16.07.2004,
observing that only civil court could have
decided the fact as to who were the heirs of
the deceased, therefore, the order of the
Magistrate deciding shares of the parties and
releasing the disputed property in their
favour,
is
an
order
passed
beyond
jurisdiction. The order was set aside and
matter was remanded for decision afresh.

• The S.D.M. passed a fresh order
on 03.01.2006, whereby he set aside the
attachment, dropped the proceeding under
section 145 Cr.P.C. and released the
property in favour of respondent no.4Tejbali.

• Challenging the aforesaid order
passed by the S.D.M., the petitioner filed a
5 All. Rajeshwar Singh Vs. State of U.P. & Ors.
687
criminal revision no. 15 of 2006, which was
rejected by Addl. Sessions Judge, Mirzapur
vide its order dated 06.03.2006. Now, the
petitioner is before this Court invoking writ
jurisdiction, challenging the two orders
dated 03.01.2006 and 06.03.2006.

5. The grounds taken by the petitioner
in nutshell are; that it was wrong on the part
of the court concerned to have given a
finding that the petitioner could not have
challenged the order as he was not a party in
the proceedings and therefore, the revision
was not maintainable and secondly, it was a
misconceived and misplaced finding that the
matter of heirship of late Dayaram could
only be decided by a civil court. It is
submitted on behalf of the petitioner that
respondent
no.4
filed
a
civil
suit
surreptitiously in his name and in the name
of father of the petitioner, with the pleading
that they were in joint possession of the
property Arazi no. 232 and prayed for
decree of permanent injunction. That civil
suit no. 446 of 1981 abated on the basis of
an
application
moved
by
defendant,
submitting that Dayaram had died and his
heirs have not been substituted. In a civil
appeal he was allowed to prosecute the suit
further. The argument of the petitioner is
that Lt. Parmanand has been in possession of
the property and the property had been
wrongly handed over to a receiver, though,
the petitioner has been in possession. The
petitioner has been cultivating the same after
death of the supurdgar and therefore, the
orders passed by the courts below are illegal
and arbitrary. They could not have delivered
the property to respondent no.4, solely on
the ground that after death of Parmanand,
his son i.e. respondent no.4 was the only
surviving party to the proceeding. The
contention is that the learned court ignored
the express provisions of law under section
145(7) Cr.P.C., in which it is clearly
provided that if any party to the proceeding
under section 145 Cr.P.C., dies, all the
persons claiming to be his heirs, shall be
substituted. The impugned orders dated
03.01.2006 and 06.03.2006 suffer from
manifest error of law. The courts below
were wrong in holding that because the
respondent no.4 was sole surviving party
and the claim of heirship/inheritance was
pending adjudication before the revenue
court, hence property could have only be
released in favour of respondent no.4.

Furthermore
by
means
of
supplementary
affidavit,
it
has
been
contended by the petitioner, that the courts
below gave away possession of entire
property belonging to Parmanand, to
respondent no.4, however, being the only
son of late Dayaram, petitioner's name stood
entered in revenue record. He obviously
inherited the property belonging to his father
Dayaram, therefore, he is entitled to succeed
to the property of Parmanand, in addition to
Tejbali.

6. The main objections raised by the
respondent are:- first that petitioner is
neither a recorded owner nor was ever in
possession of the property, since the very
beginning. Neither he nor his father were
party to proceeding under section 145
CrP.C. and that he had no concern with the
instant dispute. The mutation proceedings
are still pending. The proceedings before the
civil court as well as the revenue court are
also pending hence, in view of judgment of
Apex Court in Ram Sumer Puri Mahant
Vs. State of U.P. and Amresh Tiwari Vs.
Lata Prasad Dubey, the proceedings under
section 145 Cr.P.C. are not maintainable.
The petitioner is a stranger to proceedings
under section 145 Cr.P.C., hence, there is no
justification in reopening the proceeding
under section 145 Cr.P.C. He has no locus
688 INDIAN LAW REPORTS ALLAHABAD SERIES
standi to question the legality of the
impugned orders. Secondly that the issue
regarding death of father of the petitioner is
pending adjudication hence, the controversy
cannot be decided, before that issue is
decided by a competent court. This court has
no power to go into the questions of facts
under article 226 of the Constitution of
India, therefore, the petition may be
dismissed with cost.

7. Before I take up the arguments as
advanced by the rival side, some of the facts
on which there is no controversy may be
reiterated. The litigation under section 145
Cr.P.C. began between Parmanand and his
real son Tejbali in the year 1972. The
S.D.M. Chunar passed a preliminary order
under section 145 Cr.P.C. and also directed
attachment of the property in dispute. The
attached property was given in possession of
one Kripa Singh s/o Raghunath in the
capacity of a Supurdgar. Admittedly, at that
time all the disputed property in question
was recorded in the name of Parmanand. As
a question of de facto possession arose
between father and son, the S.D.M, referred
the matter to the civil court. The civil court
gave its decision on 03.05.1974, holding that
Parmanand has been in possession since two
months before the dispute arose. On the
basis of the judgment given by the civil
court in the reference by the S.D.M., the
land was directed to be released in his favour
of Parmanand, however, Tajbali s/o of
Parmanand preferred a writ petition and the
order of S.D.M. dated 03.05.1974 (releasing
the land in favour of Parmanand), was
stayed meanwhile. During the pendency of
the writ proceeding before the High Court,
Parmanand (the respondent no.3) died
therefore, the interim order was vacated and
the writ dismissed as having become
infructuous, in view of death of only
contesting party Parmanand (the respondent
therein). It may importantly be noted that
Parmanand had died in 1978 and the writ
was dismissed by an order passed on
20.11.1996 and further it may also be noted
that the High Court made an observation that
Tajbali may raise the question of desirability
of continuing the proceeding before the
Magistrate
concerned.
There
is
no
controversy as regard the fact that Tejbali
and Dayaram both are sons of Parmanand.
There has been a dispute whether Dayaram
has died or has gone on pilgrimage. The
instant petitioner is son of aforesaid
Dayaram. The litigation which began
between Parmanand and his real son Tejbali,
now passed on to between Tejbali and the
instant petitioner Rajeshwar Singh s/o
Dayaram, on death of Parmanand. There is
no plea from any of the sides that the sons of
deceased Parmanand were ever divested of
their rights, which might have devolved on
them on the death of their father. In the year
1997 and probably in the light of
observation made by the High Court as
regard desirability of the continuance of
proceedings under section 145 Cr.P.C.,
Tejbali admittedly applied before the
S.D.M. for release of property in his favour,
saying that the property has been mutated in
his name and his brother Dayaram's name in
revenue paper and as Dayaram is on
pilgrimage, therefore, taking advantage of
this fact, his son Rajeshwar has wrongly got
his name mutated in place of his father on
false pretext of death of his father. Further it
was submitted in the application given by
Tejbali that the question of mutation and
revenue entry in the name of Rajeshwar, in
place of his father on the basis of
inheritance, is subjudice before the court of
Commissioner.

8. These contentions were vehemently
opposed on behalf of Rajeshwar, saying that
Tejbali (his uncle), on the basis of false,
5 All. Rajeshwar Singh Vs. State of U.P. & Ors.
689
manipulated and twisted facts and especially
concealing the fact that Dayaram has
actually died, without impleading him i.e.
Rajeshwar, his son as party, is trying to
obtain order of release of property in his
favour. The matter went before the S.D.M.
again in the light of above submissions of
both the sides and the S.D.M. passed an
order on 11.04.2001 whereby he directed
that the disputed property be released in
favour of Tejbali and Dayaram both, mainly
on the basis that there is no dispute that
initially the property was in ownership and
possession of Parmanand, now deceased and
therefore Tejbali and Dayaram, both being
his legal heirs and Rajeshwar who is
undisputedly son of Dayaram, is entitled to
have possession, It may be noted at this very
juncture that the S.D.M. took a view that
share in the property belonging to Dayaram,
shall obviously go to his son and not to his
brother Tejbali. It may also be noted that this
kind of reasoning, observation and finding
did not find favour with the court of
revision. The court of revision passed an
order on 16.07.2004 and remanded the
matter for fresh hearing. Importantly, the
order of remand was passed mainly on the
premise that Rajeshwar was never a party in
the litigation, therefore, the question of
releasing it in his favour did not arise. And
further that only Parmanand was found in
possession of the property therefore, it could
have been released in his favour only, had he
been alive And as he has actually died and
further the question of inheritance is sub
judice before a competent court, hence till
that issue is decided, the S.D.M. could not
have released the property in favour of
Rajeshwar.

9. In nutshell, following undisputed
facts emerge that Parmanand, who is
grandfather
of
the
present
petitioner
Rajeshwar and father of respondent no.4,
died in 1978, during the pendency of
proceedings under section 145 Cr.P.C.
(which was initiated at his behest against his
real son Tejbali only) At that time, his other
son Dayaram was not in picture, for the
reason that he had either died or was not
traceable. The writ proceeding before the
High Court in which Parmanand and one of
his sons Tejbali was party, was dismissed as
having become infructuous because of his
death. It may be noted that the fact that his
other son being missing or having gone on
pilgrimage and not traceable for any reason
or had died was never brought before the
courts concerned in any manner. The main
contention of the petitioner is that these facts
were deliberately not brought before the
courts as respondent no.4-Tejbali his uncle
wanted that all the property should be
released in his possession only.

10. The provisions of section 145(7)
Cr.P.C. which appear relevant in the
circumstances of this case, are being
reproduced as below:

"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."

The provision says that the
proceeding under section 145 may continue
by the legal representatives of the deceased
party and further that where any question
arises as to who is the legal representatives
of the deceased party, all persons claiming
to be his representatives shall be impleaded.
There is no denial of the fact that Rajeshwar
690 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh is the real son of Dayaram. The
question of inheritance went before the other
forum just because a question was raised by
Tejbali that till Dayaram is alive his son
Rajeshwar cannot claim property. On the
other hand, Rajeshwar always claimed that
his father has actually died therefore, his
share of property naturally devolved on him
and that therefore, he should have been
impleaded in the proceeding under section
145 Cr.P.C. and that he is entitled for release
of at least his share in the property in his
favour.

In view of above factual position,
the impugned orders dated 03.01.2006, and
06.03.2006 cannot stand as whole of the
property has been released in possession of
his uncle Tejbali. He has been illegally
deprived of his property. In the light of
above arguments further contention of the
petitioner is that in revenue records, the
entry in his name exists. The order of
mutation, though was challenged by Tejbali
is still in force. And meanwhile, civil death
of Dayaram has also been declared by the
civil court.

11. The forceful contention of the
petitioner is that it was wrong for assuming
that property in question could only be
delivered to Tejbali just because the only
other party had died. The provisions of
section 145 (7) Cr.P.C. were not followed.
Respondent no.4 never brought this fact into
knowledge of the SDM or any other court,
(in which the other litigations proceeded)
that he had a real brother Dayaram, who
inherited half of the share, on death of
Parmanand. It is argued that irrespective of
the fact that Dayaram had died or was
missing or was on pilgrimage, at least his
real brother had no right over Dayaram's
share. I find force in this argument. Another
very important fact is that the purpose of
proceeding under section 145 Cr.P.C. or
attachment under section 146 Cr.P.C. is
nothing but to prevent and avoid breach of
peace and to maintain law and order for the
purpose of keeping peace in the society at
large. The provisions of section 145 and 146
Cr.P.C. are preventive in nature. The
purpose is to prevent any ugly occurrence
because of disputes over land and water. The
executive
has
been
entrusted
with
responsibility to take measures where a
dispute between two private parties may
give rise to an incident which may disrupt
the peace to which society at large is
entitled. Provisions of section 145(7) have
been introduced for the purpose that in case,
threat of breach of peace continues, even
when a party has died, the proceeding may
be continued by impleading the legal
representatives of the warring parties.
Definitely and undisputedly when legal
representatives are to be impleaded for
continuance of proceeding under section
145 Cr.P.C., the Magistrate is not to decide
who is actually the legal heir of the
deceased. The only thing is to be decided is
who are to be substituted as his legal
representative. I find it very important to
point out that there is a difference
between the legal heirs and legal
representatives.
The
word
"legal
representative" has not been defined in
Cr.P.C. In my opinion when a question
arises as who is the legal representative of
a party, same meaning should be attached
as has been defined in Civil Procedure
Code. The word 'legal heir' and 'legal
representative' are not interchangeable
and are not exactly the same, as is very
clear from the definition itself. In my
opinion, where a piquant situation arises,
in matters where a party has died during
the pendency of proceeding under section
145 Cr.P.C. and a serious dispute arises
as to who is the legal heir, the Magistrate
concerned cannot refuse to exercise its
5 All. State of U.P. & Ors. Vs. Geeta Rani
691
jurisdiction, just because he has no power
to decide as to who is the 'heir' of the
deceased or just because the matter of
inheritance is fiercely fought in a civil
court. The purpose of the proceeding
under section 145 Cr.P.C. is significantly
different from the proceedings which
may be pending between the parties in a
civil court or a revenue court. Definitely,
the S.D.M. is not empowered to decide the
question of inheritance however, he can
always implead a legal representative to
continue the proceedings with a larger
interest of the parties and the society in
mind.

12. It is very interesting to note that
probably the dispute, which may cause
breach of peace continued but the S.D.M.
dropped the proceeding. Another thing
which has escaped attention at almost all the
stages of litigation is that the property was
handed over to a Supurdgar and admittedly
he died before the very first round of
litigation under section 145 Cr.P.C., came to
be finally concluded. In my opinion, it was
duty of the S.D.M. to appoint any other
person in place of deceased supurdgar but
that step was never taken, instead, the heirs
of supurdgar kept taking care of the property
and this is too glaring and gross negligence
on the part of the S.D.M. concerned. The
rights and duties of supurdgar cannot
devolve upon the heirs of a supurdgar.

13. In view of the above facts and
circumstances, I find that this matter needs
indulgence of this Court in exercise of
powers under article 226 of Constitution of
India. Hence, the impugned orders dated
03.01.2006 and 06.03.2006 are hereby set
aside and the court concerned is directed to
open the proceeding under section 145
Cr.P.C., and direct for substitution of legal
representative. Further he/she shall decide
the
question
of
desirability
of
its
continuance, in the light of the purpose of
the initiation of the proceedings under
section 145 Cr.P.C. which is to prevent
breach of peace. And in case the court is of
opinion that there is no need to continue the
same as no longer apprehension of breach of
peace existed, it shall decide the matter of
delivery of possession in accordance with
law.

14. The impugned orders dated
03.01.2006 and 06.03.2006 are hereby set
aside. The matter is remanded to the court
concerned for decision afresh in the light of
observations made in the body of this order.

15. Accordingly, this petition is
disposed of.
----------
(2024) 5 ILRA 691
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Special Appeal Defective No. 380 of 2024

State of U.P. & Ors. ...Appellants
Versus
Geeta Rani ...Respondent

Counsel for the Appellants:
C.S.C., Kunal Ravi Singh, S.C.

Counsel for the Respondent:
Atipriya Gautam, Devesh Mishra

A. Service Law - UP Recruitment of
Dependents of Government Servants Dying
in Harness. Rules, 1974 - GO dated
18.09.2015 - Clause 2(5) - Compassionate
Appointment - Petitioner failed in physical