# Smt. Lalita Devi v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 642
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-18
- **Case number:** Matters Under Article 227 No. 9606 of 2019
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-lalita-devi-v-state-of-u-p-ors-45249
- **Pages:** 6

## Headnote

A. Criminal Procedure Code, 1973 -
Section 145 (1) - 'stating the grounds of
his being so satisfied' - Magistrate gets
jurisdiction to initiate proceedings and
pass a preliminary order u/s 145 of the
Code - only on being satisfied that - there
is a real dispute existing - concerning the
possession of immovable property - and
that such dispute is likely to cause breach
of peace - This satisfaction Magistrate
may get from - report of the police officer
or upon other information - Magistrate
shall make an order in writing, stating
the
grounds
of
his
satisfaction
is
mandatory . (Para 10)

Held - City Magistrate neither called for any
police report regarding spot inspection of the
plot in dispute nor obtained other information
as required under u/s 145 Cr.P.C - City
Magistrate on the basis of presumption illegally
rejected the claim of the applicant that she is in
possession over the plot in dispute. (Para 11)

Matter Under Article 227 allowed. (E-5)

## Text

642 INDIAN LAW REPORTS ALLAHABAD SERIES
Mau, District Chitrakoot is liable to costs
of Rs.25,000/- to be deposited by him
within a month, failing which, the same
shall be deducted from his salary/ and or
recovered as arrears of land revenue.

29. Moreover, an entry shall be made
in his service record that he has been
found by this Court to be guilty of acting
beyond jurisdiction with a view to favour a
private party and to provide her possession
over land by forcibly dispossessing its
occupants, in the garb of executing a
partition decree especially when there was
no decree for dispossession against the
occupants nor they were parties to the
partition decree and for this purpose
having passed and signed an order on
10.08.2019
which
had
been
dated
14.08.2019, at its top. This was done by
him on the administrative side, having
signed the order / letter impugned in this
petition as Sub Divisional Magistrate and
not
as
Sub
Divisional
Officer,
a
designation to be used when discharging,
judicial functions.

30. The original records produced by
Learned Standing Counsel be returned
back to him, forthwith.
----------
(2020)1ILR 642

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2019

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Matters Under Article 227 No. 9606 of 2019
(Criminal)

Smt. Lalita Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Ajay Sengar

Counsel for the Respondents:
C.S.C.

A. Criminal Procedure Code, 1973 -
Section 145 (1) - 'stating the grounds of
his being so satisfied' - Magistrate gets
jurisdiction to initiate proceedings and
pass a preliminary order u/s 145 of the
Code - only on being satisfied that - there
is a real dispute existing - concerning the
possession of immovable property - and
that such dispute is likely to cause breach
of peace - This satisfaction Magistrate
may get from - report of the police officer
or upon other information - Magistrate
shall make an order in writing, stating
the
grounds
of
his
satisfaction
is
mandatory . (Para 10)

Held - City Magistrate neither called for any
police report regarding spot inspection of the
plot in dispute nor obtained other information
as required under u/s 145 Cr.P.C - City
Magistrate on the basis of presumption illegally
rejected the claim of the applicant that she is in
possession over the plot in dispute. (Para 11)

Matter Under Article 227 allowed. (E-5)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Ajay Sengar, learned
counsel for the petitioner and learned
A.G.A. for the State.

2. The present petition under Article
227 of the Constitution of India has been
filed to quash the order dated 1st April,
2019 passed by the City Magistrate,
Paragana-Orai, Jalaun at Orai in Case No.
02 of 2018 (Smt. Lalita Devi Vs. Veni
Madhav & Others), under Section 145
Cr.P.C., Kotwali-Orai, District-Jalaun as
well as the order dated 13th September,
2019 passed by the Additional Sessions
1 All. Smt. Lalita Devi Vs. State of U.P. & Ors.
643
Judge/Special Judge (E.C.Act), Jalaun at
Orai in Criminal Revision No. 49 of 2019
(Smt. Lalita Devi Vs. Veni Madhav &
Others), under Section 397 Cr.P.C., Police
Station-Kotwali, District-Jalaun.

3. Learned counsel for the petitioner
and the learned A.G.A. agree that this
application may be finally disposed of
without issuing notice to opposite party
no.2 in view of the order proposed to be
passed today. Normally, this Court would
have issued notices to opposite party no.2
to file counter affidavit but no purpose
would be served by keeping the present
application pending. However, it shall be
open for opposite party no.2 to file recall
application against this order, if he feels so
aggrieved.

4. Under the order impugned dated
1st April, 2019, order/notice dated 17th
October, 2018 under Section 145 (1)
Cr.P.C. directing the parties to maintain
status quo passed on the application filed
by the applicant, has been quashed, which
has also been affirmed by the revisional
court under the order impugned dated 13th
September, 2019.

5. According to the learned counsel
for the petitioner, the brief facts are as
follows:

Respondent no.3, namely Komal
Yadav being owner of plot measuring 20 x
40 fee, situated at Churkhi Road, Pargana
and Tehsil-Orai, District-Jalaun at Orai,
had offered the said land to the petitioner
on a reasonable rate i.e. Rs. 2,00,000/-
lacs. Petitioner accepted the said proposal
and paid Rs. 2,00,000/- to respondent no.3
for purchasing of the said land as sale
consideration with the assurance that the
possession
shall
be
handed
over
immediately but the registered sale-deed
will be executed in favour of the petitioner
in the year 2016. According to the said
deal, the petitioner after paying Rs.
2,00,000/- to respondent no.2, has taken
possession over the plot in dispute and
now she is still in possession over the said
plot.
Thereafter
the
petitioner
has
requested respondent no.3 to execute the
sale-deed in favour of the petitioner as per
the assurance given by her, but respondent
no.3 has avoided the request of the
petitioner and has not executed the
registered sale deed even after expiry of a
period of three years. On 16th October,
2018, respondent no.2, namely, Beni
Madhav came and wanted to take
possession over the plot in dispute. The
petitioner contacted respondent no.3 about
the same but respondent no.3 did not
respond to her properly. Thereafter the
petitioner has also immediately moved
written complaint to the Station House
Officer, Kotwali-Orai, District-Jalaun and
City Magistrate, Jalaun at Orai on 17th
October, 2018. Upon the said written
complaint of the petitioner, the City
Magistrate, Jalaun at Orai vide order dated
17th October, 2018 initiated proceedings
under Section 145 (1) Cr.P.C. and directed
to maintain status quo issuing notice to
respondent nos. 2 and 3and fixing 31st
October, 2018. On the notice being
received, respondent nos. 2 and 3 filed
their written objections on 15th November,
2018 stating therein that petitioner has no
concern with the aforesaid plot and neither
respondent no.3 has ever taken any
consideration from the petitioner nor
assured her to execute any sale-deed qua
the plot in dispute. On the objections filed
by respondent nos. 2 and 3, the City
Magistrate under the order dated 28th
October,
2018
has
dropped
the
proceedings initiated under Section 145
644 INDIAN LAW REPORTS ALLAHABAD SERIES
(1) Cr.P.C. and has also recalled the earlier
order directing the parties to maintain
status quo. Feeling aggrieved by the said
order of the City Magistrate dropping the
proceedings initiated under Section 145
(1) Cr.P.C., the petitioner has preferred
Criminal Revision No. 49 of 2019 (Smt.
Lalita Devi Vs. Veni Madhav & Others)
under Section 397 Cr.P.C. The learned
Additional Sessions Judge/Special Judge
(E.C. Act), Jalaun at Orai has rejected the
criminal revision under the order dated
13th September, 2019. It is against these
two orders that the present petition under
Article 227 of the Constitution of India has
been filed.

6. Learned counsel for the petitioner
submits that both the courts below have
committed
manifest
error
in
law
determining the ownership of the land in
dispute while passing the impugned
orders. Both the courts below have also
exercised their powers beyond the scope of
provisions under Sections 145 and 145 (1)
Cr.P.C. and have wrongly rejected the
claim of the petitioner. It is an admitted
case that the petitioner was in possession
over the plot since 2016 but the courts
below have wrongly determined the
possession of the respondent nos. 2 and 3.
Under the orders impugned the findings
recorded therein are perverse and wrongly
determined that there is the apprehension
among the parties regarding the land in
dispute. The petitioner is in possession
over the plot in dispute and she cannot be
evicted by the private respondents beyond
the procedure known to law. It is further
submitted that the respondent nos. 2 and 3
have no legal right or title to claim that
they are the owners of the plot in dispute.
It is further submitted that both the courts
below only on the basis of apprehension
has recorded a finding that respondent
no.3 has title and is in rightful possession
over the plot in question and the petitioner
is not in possession over the same.
Learned
counsel
for
the
petitioner,
therefore, submits that both the impugned
orders are to be set aside.

7. I have considered the submissions
of the learned counsel for the applicant
and the learned A.G.A. for the State and
have gone through the records of the
present
application
as
well
as
the
impugned orders.

8. Before adverting on the merits of
the case set up by the parties, it would be
worthwhile to reproduce Sections 145
Cr.P.C., which is quoted herein below:

"145. Procedure where dispute
concerning land or water is likely to cause
breach of peace.

(1) 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 requiring 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.

(2) For the purposes of this
section, the expression" land or water"
includes buildings, markets, fisheries,
crops or other produce of land, and the
rents or profits of any such property.

(3) A copy of the order shall be
served in the manner provided by this
Code for the service of a summons upon
1 All. Smt. Lalita Devi Vs. State of U.P. & Ors.
645
such person or persons as the Magistrate
may direct, and at least one copy shall be
published by being affixed to some
conspicuous place at or near the subject of
dispute,

(4) The Magistrate shall then,
without, reference to the merits or the
claims of any of the parties to a right to
possess the subject of dispute, peruse the
statements so put in, hear the parties,
receive all such evidence as may be
produced by them, take such further
evidence, if any, as he thinks necessary,
and, if possible, decide whether any and
which of the parties was, at the date of the
order made by him under sub- section (1),
in possession of the subject of dispute:
Provided that if it appears to the
Magistrate that any party has been
forcibly
and
wrongfully
dispossessed
within two months next before the date on
which the report of a police officer or
other information was received by the
Magistrate, or after that date and before
the date of his order under sub- section
(1), he may treat the party so dispossessed
as if that party had been in possession on
the date of his order under sub- section
(1).

(5) Nothing in this section' shall
preclude any party so required to attend,
or any other person interested, from
showing that no such dispute as aforesaid
exists or has existed; and in such case the
Magistrate shall cancel his said order, and
all further proceedings thereon shall be
stayed, but, subject to such cancellation,
the order of the Magistrate under
subsection (1) shall be final.

(6) (a) If the Magistrate decides
that one of the parties was, or should
under the proviso to sub- section (4) be
treated as being, in such possession of the
said subject, he shall issue an order
declaring such party to be entitled to
possession thereof until evicted therefrom
in due course of law, and forbidding all
disturbance of such possession until such
eviction; and when he proceeds under the
proviso to sub- section (4), may restore to
possession
the
party
forcibly
and
wrongfully dispossessed.

(b) The order made under this
sub- section shall be served and published
in the manner laid down in sub- section
(3).

(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.

(8) If the Magistrate is of
opinion that any crop or other produce of
the property, the subject of dispute in a
proceeding under this section pending
before him, is subject to speedy and
natural decay, he may make an order for
the proper custody or sale of. such
property, and, upon the completion of the
inquiry, shall make such order for the
disposal of such property, or the sale-
proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he
thinks fit, at any stage of the proceedings
under this section, on the application of
either party, issue a summons to any
witness directing him to attend or to
produce any document or thing.

(10) Nothing in this section shall
be deemed to be in derogation of the
powers of the Magistrate to proceed under
section 107."

9. Section 145 (1), Criminal
Procedure
Code,
provides
that
the
646 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate having jurisdiction shall make
an order in writing that he is satisfied
either from a police report or other
information that a dispute likely to cause a
breach of the peace exists and state the
grounds of his satisfaction before requiring
the parties concerned in such dispute to
attend his Court and put in written
statements. This provision of making the
order in writing and stating the grounds of
his satisfaction appears to be mandatory.
The words "shall make an order in writing
stating the grounds of his being so
satisfied" would clearly indicate that the
order must be in writing and the grounds
for satisfaction also must be stated. Unless
the grounds are stated in the order itself, it
will be difficult to test the correctness or
otherwise of the order passed by the
Magistrate. So, the preliminary order
should state clearly the reasons and
grounds on which the satisfaction is based
and that the Magistrate had applied his
mind in passing the preliminary order.

10. On a careful reading of section
145 as a whole, particularly sub-section
(1) it can be seen that every foundation of
an action under the sub-section is the
satisfaction of the Magistrate that a dispute
likely to cause a breach of the peace
existed on the date of the preliminary
order, concerning the possession of any
land or water or boundaries thereof
situated within his or her local jurisdiction.
It is only on being satisfied that there is a
real dispute existing concerning the
possession of immovable property and that
such dispute is likely to cause the breach
of
peace
that
the
Magistrate
gets
jurisdiction to initiate proceedings and
pass a preliminary order under section 145
of the Code. This satisfaction he or she
may get from a report of the police officer
or upon other information. The Magistrate
must be satisfied of the necessity to take
action under section 145 of the Code,
before a. preliminary order is passed and it
cannot be said that in every case such
satisfaction would automatically follow
from a report of the police officer or upon
other information. The provision in the
Sub-section that the Magistrate shall make
an order in writing, slating the grounds of
his satisfaction is mandatory. If the
grounds are not stated in the order, it will
be difficult to test the correctness and
validity of the order.

11. From the perusal of the aforesaid
provisions and the orders impugned, this
Court finds that the City Magistrate on the
basis of presumption has rejected the claim
of the applicant that she is in possession
over the plot in dispute and has accepted
the objections filed by respondent nos. 2
and 3. Neither the City Magistrate has
called for any police report regarding spot
inspection of the plot in dispute nor has
obtained other information as is required
under the provisions of Section 145
Cr.P.C.

12. For the reasons aforesaid, this
Court is of the view that the learned
Magistrate had not applied his mind while
passing the order dated 1st April, 2019 in
that the learned Magistrate has not
considered the claim of the applicant as
required by sub-sections (1) and (4) of
Section 145. The same mistake has also
been committed by the revisional court in
its order dated 13th September, 2019.

13. In view of the aforesaid, the
impugned orders dated 1st April, 2019 and
13th September, 2019 cannot be legally
sustained and are hereby quashed. The
matter is remanded to the City Magistrate
concerned to pass reasoned and speaking
1 All. Pradeep Vs. State of U.P. & Anr.
647
order afresh in the proceeding initiated
under Section 145 (1) Cr.P.C. after
affording opportunity of hearing to all the
parties concerned in accordance with law.

14. The present application is allowed
subject to the observations made above.
----------
(2020)1ILR 647

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Matters Under Article 227 No. 9749 of 2019
(Criminal)

Pradeep ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Ramesh Chandra Srivastava

Counsel for the Respondents:
C.S.C.

A. Criminal Procedure Code, 1973 -
Section 204 - Summoning Order - Prima
facie case - At the stage of passing of
summoning order u/s 204 of Cr.P.C
Magistrate is not required to make
meticulous analysis of factual evidence,
rather, existence of a prima facie case is
to be seen by application of judicial mind-
Held - Summoning order was passed on
the basis of evidence, collected by the
Magistrate, in its enquiry - held no
illegality in summoning order. (Para 7)

Matter Under Article 227 dismissed. (E-5)

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

1. This Application, under Article
227 of the Constitution of India, has been
filed by the applicant, Pradeep, with a
prayer
for
setting
aside
impugned
summoning order, dated 29.6.2018, passed
by
the
Additional
Chief
Judicial
Magistrate, Ist, Saharanpur, as well as
order
of
revisional
court,
dated
19.10.2019, passed by the learned Sessions
Judge, Saharapur, in Criminal Revision
No. 183 of 2018, Pradeep vs. State of U.P.
and others. Learned counsel for applicant
argued that both of the courts below, i.e.,
Trial court and the Revisional court, have
failed to appreciate facts and law placed
before them. There was inconsistency in
the statements, recorded, under Sections
200 and 202 of Cr.P.C. Applicant is a
witness in a murder case, wherein,
complainant's husband is an accused. Prior
to it alleged occurrence, a criminal case,
under Section 323, 504 and 506 of I.P.C.,
was also got registered upon a report of the
applicant and owing to this previous
enmity, this false implication was made
and concocted case was got lodged, but,
both of the courts below failed to
appreciate it. Hence, this Application,
invoking jurisdiction of this court of
general superintendence over subordinate
courts, conferred by Article 227 of the
Constitution of India, has been filed, with
above prayer.

2. Learned AGA, representing State
of U.P., has vehemently opposed this
Application.

3. Heard learned counsel for both
sides and gone through the record.

4. From very perusal of the
complaint, it is apparent that it was filed
by Smt. Poonam with this contention that
on 6.12.2016, at about 5.00 PM, while she
was all alone at her home and her husband,
Dhan Prakash, was away at Saharanpur