# Rajkeshwar Revisionist v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 97
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-19
- **Case number:** Criminal Revision No. 1738 of 2013
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajkeshwar-revisionist-v-state-of-u-p-ors-50428
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Section 145 - Procedure where
dispute concerning land or water is likely
to cause breach of peace , Section 146 -
power to attach subject to dispute and to
appoint receiver - when a civil suit is
pending
and
the
parties
have
been
directed to maintain status quo, initiation
of proceeding under Section 145 Cr.P.C. is
improper - For breach of peace Section
107 Cr.P.C. can be invoked but cannot
attach the property. (Para - 14)

Property in question pending in Revenue Court -
with an interim stay order to maintain status
quo - SDM directed SHO - to send a report for
action under Sections 145 and 146 CrPC - which
is against provisions of law - superior officer
directed SHO to send a positive report -
concerned report was sent by SHO - Order
passed by Sub-Divisional Magistrate under
Section 145 CrPC. - land, totaling 1.0.912
hectares, was attached under section 146 (1)
CrPC. - hence criminal revision. (Para - 2,12)

HELD:-Impugned order is not liable to be
sustained. Impugned order passed by SubDivisional Magistrate,under Section 146(1) CrPC
quashed. (Para - 15,16)

Revision allowed. (E-7)

List of Cases cited:

## Text

5 All. Rajkeshwar Vs. State of U.P. & Ors.
97
Apex Court in Hardeep Singh Vs State of
Punjab (supra) as well as Sagar Vs. State
of U.P. (supra), the impugned order dated
04.02.2023 is set aside and the present
revision is allowed.
----------
(2023) 5 ILRA 97
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 1738 of 2013

Rajkeshwar ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Ashok Kumar Srivastava, Sri Ganesh

Counsel for the Opposite Parties:
Govt. Advocate, Sri N.D. Upadhyay, Sri
Vinay Bhushan

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Section 145 - Procedure where
dispute concerning land or water is likely
to cause breach of peace , Section 146 -
power to attach subject to dispute and to
appoint receiver - when a civil suit is
pending
and
the
parties
have
been
directed to maintain status quo, initiation
of proceeding under Section 145 Cr.P.C. is
improper - For breach of peace Section
107 Cr.P.C. can be invoked but cannot
attach the property. (Para - 14)

Property in question pending in Revenue Court -
with an interim stay order to maintain status
quo - SDM directed SHO - to send a report for
action under Sections 145 and 146 CrPC - which
is against provisions of law - superior officer
directed SHO to send a positive report -
concerned report was sent by SHO - Order
passed by Sub-Divisional Magistrate under
Section 145 CrPC. - land, totaling 1.0.912
hectares, was attached under section 146 (1)
CrPC. - hence criminal revision. (Para - 2,12)

HELD:-Impugned order is not liable to be
sustained. Impugned order passed by SubDivisional Magistrate,under Section 146(1) CrPC
quashed. (Para - 15,16)

Revision allowed. (E-7)

List of Cases cited:

1. Ashok Kumar Vs St. of Uttarakhand & ors. ,
2013 (3) SCC 366

2. Manika Shahu Vs Dandapani Shahu, 1986
CrLJ 287

3. Suresh Kumar Vs Vijay Kumar, 1988 CrLJ 977

4. Delhi Ram Sumer Puri Vs St. of U.P., AIR
1985 SC 472

5. Iqbal Singh Vs St. of Har., 1985 CrLJ 1757
(P& H)

6. Anand Ram Vs St. of Delhi, 1986 CrLJ 2008

7. Mohinder Singh Vs Dilbagh Rai, 1977 CrLJ
1029

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Mr. Ganesh, learned counsel
for the revisionist and learned Additional
Government Advocate. None appeared
from the side of opposite party no.2 to
argue the case. Perused the material
available on record.

2. This criminal revision has been
preferred against the order passed by
opposite
party
no.2/Sub-Divisional
Magistrate,
Robertsganj,
District
Sonbhadra dated 02.05.2013 in Case No.39
98 INDIAN LAW REPORTS ALLAHABAD SERIES
of 2013 (Smt. Prema Devi Vs. Rajkeshwar
Yadav), under Section 145 CrPC, Police
Station Kone, District Sonbhadra whereby
the land being Araji nos.4, 5, 11, 15, 313,
721 722, 749, 767/1 and 267/202 total 11
gata area 1.0.912 hectare had been attached
under section 146 (1) CrPC.

3. The facts in brief of the case are that
on the report of Station House Officer,
Police Station Kone that there was breach
of peace with regard to the aforesaid plot
numbers and there was essentiality of
attachment of the aforesaid plots under
Section 146(1) CrPC the Sub-divisional
Magistrate convinced with the report of the
concerned SHO attached the aforesaid plots
under Section 146(1) CrPC vide order
dated 02.05.2013. Before passing the
impugned order, a preliminary order under
Section 145(1) CrPC had also been passed
by the concerned SDM. Being aggrieved
from the order of the SDM, this revision
petition has been preferred.

4. Facts of the case are that Prema
Devi opposite party no.3 moved an
application under Section 145 CrPC before
the concerned SDM stating that respondent
no.7, Jag Narayan (now deceased) son of
Tulsi had 1/5th share in property in
question which was also in his use and
occupation, was, later on, purchased by
Prema Devi and her name had also been
mutated in the revenue records. Opposite
party nos.2 to 5, 7 & 8 are the real tenure
holder and respondent no.1 - Rajkeshwar is
also
recorded
co-tenure
holder
after
execution of sale deed from Satya Narayan
and Raj Narayan son of Tulsi. Respondent
nos.6 and 9 purchased the shares through
sale deed from Shiv Prasad father of
respondent no.8 and respondent nos.2 to 5
respectively and have become co-tenure
holder. Gata no.773(ka) is a valuable
property on the main pitch road of Kone to
Telgudwa Road in which all the brothers
and the purchasers have the share and title.

5. On the basis of money and muscle
power opposite party no.1 tried to occupy
the part of land adjoining to the road since
month of June, 2011 after purchasing the
land from two sons of Tulsi. A case for
partition had also been filed by Prema Devi
in which an interim stay order has also
been passed but opposite party no.1 is
adamant to change the nature of property in
question in any manner and on the request,
not to do so, he is adamant to commit
offence and cause injury to her and her
family members, hence if the property in
question is not attached, an untoward
incident might be occurred at any time.

6. The application was considered by
the Sub-Divisional Magistrate and SHO,
Kone, Sonbhadra was directed to send a
report for attachment of the property in
question under Sections 145/146 CrPC. The
report was submitted by concerned SHO
and thereafter, the impugned order had
been passed by the SDM, which is under
challenge before this Court.

7. In this revision, the Revisionist has
taken ground that the police report clearly
indicates
that
the
revisionist
is
in
possession of the property in question,
hence no order for its attachment could be
passed. The order under Section 145(1)
CrPC and the order under Section 146(1)
CrPC have been passed on the same day
i.e. 02.05.2013 thus the order under Section
5 All. Rajkeshwar Vs. State of U.P. & Ors.
99
145(1) is wholly illegal and without
jurisdiction. The impugned order is an ex
parte order without awaiting the written
statement. In Suit No.235 of 20211, under
Section 176 of the UPZA & LR Act, order
to maintain status quo has also been passed
on 26.04.2011. Actually, there was no
circumstance existing in which aforesaid
order could be passed concluding any
emergency. Both the orders are bad in law
as there was also an order to maintain
status quo passed by the Revenue Court in
respect of the same land in between the
same parties, hence the impugned order is
liable to be quashed and the same be
quashed.

8. Learned counsel for the applicant
relied upon the judgement Ashok Kumar
Vs. State of Uttarakhand and others
reported in 2013 (3) SCC 366 in which it
has been laid down that the Magistrate can
act under Sections 145 and 146 CrPC, only
when he is unable to decide as to which of
the party was in possession. The property
can be attached only in case of emergency
as contemplated under Section 146 CrPC
and mere apprehension of breach of peace
cannot be ground to pass an order under
Section 146 CrPC, if a suit is pending. It is
for the Civil Court to decide as to who was
in possession on the date of filing of the
suit.

9. On behalf of the opposite party
nos.1 and 2, a counter affidavit has been
filed in which it has been stated that before
passing
of
impugned
order
since
Rajkeshwar was already in possession and
the property in question had been sold to
Prema Devi, therefore, a marpeet took
place between the parties and for the same,
two criminal cases being Case Crime
No.210 of 2012, under Sections 523, 504,
506 & 325 IPC and Case Crime No.210A
of 2012, under Sections 323, 504, 506 &
308 IPC were lodged by both the parties
against
each
other
in
which
after
investigation,
charge-sheet
had
been
submitted, however a Suit No.235 of 2011,
under Section 176 of the UPZA & LR Act
was also pending in which parties were
directed to maintain status quo over the
land in question but the revisionist tried to
obtain forcible possession over the same,
due to which, there was apprehension of
breach of peace between the parties,
therefore, SHO, Kone had submitted a
report before opposite party no.2 regarding
apprehension of breach of peace between
the parties and search proceeding under
Section 146(1) CrPC was required to be
undertaken.

10.
Opposite
party
no.2
after
considering the report, concluded that any
untoward incident will take place between
the
parties,
hence
by
order
dated
02.05.2013
attached
the
property
in
question and directed the SHO to give the
aforesaid property in custody of any
supurdgar with condition that till date the
property in question will remain under the
supervision of Police Station Kone. The
order passed by opposite party no.2 is just,
appropriate and legal order which does not
suffer from any illegality or infirmity.
Hence, the application be rejected.

11. A rejoinder affidavit has been filed
by the applicant denying the allegations of
the counter affidavit that a Suit No.235 of
2011, under Section 176 of UPZA & LR
Act about the disputed land is pending in
which an order to maintain status quo has
been passed by SDM, Robertsganj on
24.06.2011 and the same is still effective.
100 INDIAN LAW REPORTS ALLAHABAD SERIES
The name of the revisionist has been shown
as Bhumidhar, with transferable right in the
revenue record of fasli year 1427-1431. On
the basis of the contention of the applicant
and the rejoinder affidavit, the order dated
02.05.2013 is liable to be vacated.

12. From the above discussion, it is
very much clear that about the property in
question, a partition suit is pending in
Revenue Court in which interim stay order
to maintain status quo is also passed and is
still in operation. From the records, it also
transpires
that
no
report
had
been
transmitted by SHO, Police Station Kone to
the learned SDM that there was any
apprehension of breach of peace but rather
the learned SDM himself directed SO,
Kone after getting the report from opposite
party no.3 for sending the report for taking
action under Sections 145 and 146 CrPC,
which is against the provisions of law.
Thus, it transpires that since the superior
officer had directed the SHO to send a
positive report, hence the concerned report
had been sent by SHO, Kone upon which
SDM passed the impugned order.

13. This Court is also unable to
understand that when the Revenue Court
had taken cognizance of the property in
question and had passed stay order, it was
not open for the SDM to proceed with the
matter under Sections 145 and 146 CrPC.
When a Court's interim stay order was
already into existence, the same could be
complied with in due course of law by the
Revenue Court and there was no occasion
for the SDM to exercise the duty under the
Code of Criminal Procedure. Though it has
also come to knowledge that both the
parties had lodged FIR against each other
and the parties would have been enlarged
on bail on certain conditions, hence it does
not look any possibility of breach of peace
again in the near future. It is also
noteworthy that both the orders under
Sections 145 & 146 CrPC have been passed
simultaneously and on the same day i.e.
02.05.2013, which is against the provisions
of law. It appears that the SDM had already
made up the mind to pass the impugned
order, hence both the orders were passed
together by the learned SDM without
affording opportunity to the revisionists.

14. The above findings also find
support
from
the
following
judicial
precedents which are as under:

(a)
In
Manika
Shahu
Vs.
Dandapani Shahu, 1986 CrLJ 287, it has
been held that when between the parties no
partition by metes and bounds has taken
place, then even when one is in possession
over a land for convenience it is a
possession of all co-sharers.

(b) In Suresh Kumar Vs. Vijay
Kumar, 1988 CrLJ 977 Delhi, it has been
held that a property which in joint
possession is outside the ambit of Section
145 Cr.P.C. Magistrate can not decide the
question of joint possession.

(c) In Ram Sumer Puri Vs. State
of U.P., AIR 1985 SC 472, it has been held
that where a civil litigation is pending for
the property where the question of
possession is involved, parallel proceeding
in criminal Court is not justified. In such a
situation the Apex Court quashed the
proceeding before the Magistrate living it
open to the parties to approach the Civil
Court for injunction or Receiver or the like.
5 All. Arpit Saxena Vs. Smt. Nancy Saxena
101

(d) In Iqbal Singh Vs. State of
Haryana, 1985 CrLJ 1757 (P& H), it has
been held that when Civil Court directs
maintenance of status quo, it postulates that
the Civil Court is not sure as to which party
is in possession. It virtually directs that if
the contention of either one of them
supposedly was right then that position
should be continued. In this backdrop the
Magistrate can initiate proceeding to decide
which party was in possession. For breach
of peace he can invoke Section 107, Cr.P.C.
Although he can not attach the property.

(e) In Anand Ram Vs. State of
Delhi, 1986 CrLJ 2008, it has been held
that when a civil suit is pending and the
parties have been directed to maintain
status quo, initiation of proceeding under
Section 145 Cr.P.C. is improper.

(f) In Mohinder Singh Vs.
Dilbagh Rai, 1977 CrLJ 1029, it has been
held that in cases of dispute of possession
civil court can pass three types of orders-
(a) appointment of receiver; (b) granting
injunction against a party; and (c) direction
to maintain status quo. In first type of cases
there can not be any dispute giving rise to
proceeding under Section 145 Cr.P.C. In
second type of cases jurisdiction of
criminal court can not be restricted and if
so required Magistrate may have to start a
parallel proceeding but only to defend the
order of civil court by not allowing the
aggressor
to
come
in
violating
the
command of civil court. In third type of
cases Magistrate may intervene but only to
defend
the
civil
court's
order
by
maintaining status quo.

15. In view of the above discussion,
this Court is of the considered conclusion
that the impugned order is not liable to be
sustained.

Order

16.
This
criminal
revision
is
accordingly allowed and the impugned
order dated 02.05.2013 passed by SubDivisional Magistrate, Robertsganj, District
Sonbhadra in Case No.39 of 2013 (Smt.
Prema Devi Vs. Rajkeshwar Yadav), under
Section 146(1) CrPC is hereby quashed.
----------
(2023) 5 ILRA 101
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 2581 of 2022

Arpit Saxena ...Revisionist
Versus
Smt. Nancy Saxena ...Opposite Party

Counsel for the Revisionist:
Sri Pramod Kumar Sinha

Counsel for the Opposite Party:
Sri Arvind Srivastava III

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision,
Section
125
-
Order
for
maintenance
of
wives,
children
and
parents - Court must assess the wife's
income and determine if she can sustain
herself
in
the
husband's
house
-
Sustenance does not mean survival, as per
section 125 - Right to claim maintenance
must date back to the filing of the
application, as the pending maintenance
proceedings are not within the applicant's
control - claimant wife's employment and
husband's economic resources must be
considered
when
awarding
interim