# Smt. Shashi Mathur v. C.J.M., Bareilly and another

- **Citation:** (2008) 1 ILRA 166
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-31
- **Case number:** Criminal Misc. Writ Petition No.712 of 2008
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shashi-mathur-v-c-j-m-bareilly-and-another-41007
- **Pages:** 5

## Headnote

Code of Criminal Procedure-146 (3)-
Attachment of Property-civil suit as well
1 All] Smt. Shashi Mathur V. C.J.M., Bareilly and another
167
as Revenue litigation still going onMagistrate
dropped
the
proceedingconfirmed by revisional court also-once
the matter decided by Civil Court, appeal
is pending-the magistrate can not sit
over
the
civil
court-question
of
possession can be better decided by the
civil court-held-magistrate committed no
illegality in dropping proceeding under
Section 145 Cr.P.C..

Held: Para 9

Thus, there is a complete machinery
available both before the civil Court as
also before the revenue court for the
redressal
of
the
grievances
of
the
petitioner, if any, on the facts as alleged.
Sofaras the breach of peace or the
existence of an emergent situation is
concerned, it is evident that the order
under 146 (1) was passed almost after
13 months of the drawing of the
proceedings. There is nothing on record
to indicate any apprehension of breach
of peace and even if it were existing,
then the remedy of the petitioner is to
approach the concerned court as noticed
herein above for appropriate orders.

## Text

166 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
imposed upon them by law. That is the
doctrine which finds expression in the
section which merely recognizes and
preserves inherent powers of the High
Courts. All Courts, whether civil or
criminal, possess, in the absence of any
express provision, as inherent in their
constitution, all such powers as are
necessary to do the right and to undo a
wrong in the course of administration of
justice on the principle quando lex aliquid
alicui concedit, concedere videtur id sine
quo res ipse esse non potest (when the law
gives a person anything it gives him that
without which it cannot exist). While
exercising powers under the section, the
Court does not function as a court of
appeal or revision. Inherent jurisdiction
under the section though wide has to be
exercised sparingly, carefully and with
caution and only when such exercise is
justified by the tests specifically laid
down in section itself. It is to be exercised
ex debito justitiae to do read and
substantial justice for the administration
of which alone courts exist. Authority of
the court exists for advancement of justice
and if any attempt is made to abuse that
authority so as to produce injustice, the
court has power to prevent such abuse. It
would be an abuse of process of the court
to allow any action which would result
injustice and prevent promotion of justice.
In exercise of the powers, court would be
justified to quash any proceeding if it
finds that initiation/continuance of it
amounts to abuse of the process of court
or quashing of these proceedings would
otherwise serve the ends of justice. When
no offence is disclosed by the complaint,
the court may examine the question of
fact. When a complaint is sought to be
quashed it is permissible to look into the
materials to assess what the complainant
has alleged and whether any offence is
made out even if the allegations are
accepted in toto."

13. The facts set out in the Criminal
complaint are that a portion of residential
premises of applicant was found in use for
commercial purpose at the time of visit of
the
Junior
Engineer
of
Bareilly
Development Authority on 2.8.1984. The
demised premises having been let out to
United India Insurance Company prior to
the notification of constitution Bareilly
Development Authority and enforcement
of Master plan the use of building was not
in contravention of provisions of Section
16 of the Act. The allegations made in the
complaint taken as a whole do not
constitute the offence under Section 26
(2) of the Act. In view of the foregoing
discussion, the application is allowed. The
above mentioned Criminal complaint and
further
proceedings
in
consequence
thereof are quashed. Application Allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2008

BEFORE
THE HON'BLE A.P. SAHI, J.

Criminal Misc. Writ Petition No.712 of
2008

Bhagwati Prasad

...Petitioner
Versus
State of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri Ravi Chandra Srivastava

Counsel for the Respondents:
Sri A.K. Yadav
A.G.A.

Code of Criminal Procedure-146 (3)-
Attachment of Property-civil suit as well
1 All] Smt. Shashi Mathur V. C.J.M., Bareilly and another
167
as Revenue litigation still going onMagistrate
dropped
the
proceedingconfirmed by revisional court also-once
the matter decided by Civil Court, appeal
is pending-the magistrate can not sit
over
the
civil
court-question
of
possession can be better decided by the
civil court-held-magistrate committed no
illegality in dropping proceeding under
Section 145 Cr.P.C..

Held: Para 9

Thus, there is a complete machinery
available both before the civil Court as
also before the revenue court for the
redressal
of
the
grievances
of
the
petitioner, if any, on the facts as alleged.
Sofaras the breach of peace or the
existence of an emergent situation is
concerned, it is evident that the order
under 146 (1) was passed almost after
13 months of the drawing of the
proceedings. There is nothing on record
to indicate any apprehension of breach
of peace and even if it were existing,
then the remedy of the petitioner is to
approach the concerned court as noticed
herein above for appropriate orders.

(Delivered by Hon'ble A.P. Sahi. J.)

1. The petitioner contends that the
Magistrate as well as the revisional court
have erred by dropping the proceedings in
view of the fact that the petitioner is in
possession and that in view of the History
of the litigation, the proceedings for
attachment ought to have been continued
as there was a continuous existence of an
apprehension of breach of peace and there
was a serious dispute with regard to
possession.

2. In order to appreciate the
aforesaid contention of the petitioner, it is
to be noticed that the property in dispute
which is an agricultural land appears to
have been recorded in the name of the
father of the petitioner Gaya Prasad and
the same continued during consolidation
operations. After the consolidation was
over, the petitioner alleges that his father
Gaya Prasad and his brother Bhawani had
departed from the village and were living
elsewhere for the past 15 or 16 years and
that he was the exclusive owner of the
said property. To assert his aforesaid
rights, he filed a Suit for declaration
before the revenue court being original
Suit No.285 of 1989 under Section 229-B
of the U.P. Zamindari Abolition and Land
Reforms Act, 1952; a copy of the plaint is
on record as Annexure-l which was
verified on 7.6.1989. This Suit was filed
by the petitioner against his own father.
Gaya Prasad and his real brother Bhawani
Prasad. Under the provisions of the U.P.
Zamindari Abolition and Land Reforms
Act, the Court also has the power to grant
a temporary injunction under Section 229D which appears to have been invoked on
2.6.1990 in favour of the petitioner. The
petitioner alleges that since the property
in question was ancestral property, and
since his father was simply the Karta of
the family, therefore, his name had been
recorded only in a representative capacity
and that the petitioner as well as the other
members had separate shares in the
property to the extent of 1/3 each. The
declaration, therefore, was, thus, sought
on the strength of the said allegation. The
said temporary injunction was, however,
vacated on contest by the father of the
petitioner on 19.1.1991. Against the said
order, a revision is alleged to have been
filed in which a stay was granted on
22.1.1991 and ultimately the revisional
authority made a reference to the Board of
Revenue for setting aside the order dated
19.1.1991. This reference was answered
by the Board of Revenue on 26.5.1997
168 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
whereby the order vacating the injunction
was
quashed
and
the
matter
was
remanded for a decision afresh. This order
was passed on 26.5.1997.
3. Pending these proceedings, the
petitioner's father Gaya Prasad is said to
have executed a sale-deed of the said
property by a registered document in
favour of the contesting respondent -
Rajdev Yadav and the other members of
the family on 31.7.1991. The petitioner
asserts that he came to know about the
execution of the sale-deed later on and,
therefore, he instituted an original Suit
No. 962 of 1995 before the civil Court
praying for a permanent injunction in
respect of the same property. The plaint of
the said Suit is also on record which
indicates that the petitioner had also
expressed an intention to the effect that
the
said
sale-deed
deserves
to be
cancelled to the extent it was void. It also
appears from the pleadings that some
amendment was sought for adding the
relief for cancellation of the sale-deed
which application was initially rejected
against which the petitioner approached
this Court in which some interim order
had been passed at that point of time. In
the said Suit, an injunction was also
prayed for as a temporary measure and
the
said
application
was
pending
consideration before the Civil Court.

4. Pending both these proceedings
before the revenue court and the civil
Court, a police report was submitted
apprehending
breach
of
peace
on
27.12.1995 and for drawing proceedings
under Section 145 Cr.P.C. A preliminary
order was drawn .on 9.1.1996 and
pursuant thereto notices were issued.
After a lapse of almost 13 months, on the
basis of some police reports dated
16.2.1996, 29.3.1996, 4.2.1997 and a
report of the Naib Tahsildar dated
7.1.1997, an order of attachment was
passed under Section 146 (1) Cr.P.C.
Since then the property continued under
attachment. A revision, filed by the
respondent no.2 against the same, was
dismissed on 10.12.1997 and a writ
petition arising out of the proceedings
under Section 145 was dismissed on
30.10.1998, wherein an observation was
made that this shall continue till orders
are passed by the civil court for which the
parties are at liberty to obtain appropriate
orders in respect of the possession of the
property from the civil Court. These
judgments
dated
10.12.1997
and
30.10.1998 are Annexures-6 and 7 to the
writ petition.

5. It is, thus, clear from the aforesaid
facts that the property was brought under
attachment through proceedings under
Section 145 Cr.P.C. in spite of the orders
being passed both by the revenue court as
well as by the civil court. In between in
some misc. proceedings, it appears that
there was a stay of further proceedings in
the Suit by this Court as well which is
evident from the order dated 21.11.2002
in Writ Petition No. 49354 of 2002.
However, the said interim order does not
in any way take away the impact of the
orders passed by this Court on 10.12.1997
and 30.10.1998 nor do the same find
reference in the said order.

6. The sum and substance of this
entire litigation, therefore, reflects that the
proceedings under Section 145 Cr.P.C.
had been initiated after the institution of
the civil Suit as also the revenue Suit.
Upon the directions contained in the
judgments of this Court dated 10.12.1997
and 30.10.1998 calling upon the parties to
approach the civil Court, the matter
1 All] Bhagwati Prasad V. State of U.P. and another
169
appears to have been contested before the
civil court and ultimately vide order dated
12.1.1999 the civil Court rejected the
application for interim injunction filed by
the petitioner against his father Gaya
Prasad and also the contesting respondent
no.2. It need not be repeated that the
Respondent No.2 is a party to the said
civil Suit. The civil Court recorded
findings on prima facie case, balance of
convenience and irreparable injury and
while doing so also came to the
conclusion that the petitioner cannot be
presumed to be in exclusive possession of
the property and hence the application
filed by the petitioner seeking an interim
injunction was rejected. It is admitted to
the petitioner that an appeal against the
said order dated 12.1.1999 is still pending
before the appellate court being Misc.
Appeal No. 10 of 1999. The petitioner,
therefore, does not appear to have any
injunction order in his favour from the
civil Court.

7. The aforesaid facts appear to have
been brought to the notice of the
Magistrate, who proceeded with the
matter and during the pendency of these
proceedings before him, an application
was moved by one Sri Ram Sahai that he
should also be impleaded as he has
entered the fray on the strength of some
sale-deed in his favour. The learned SubDivisional Magistrate, Bhadohi, after
taking notice of the aforesaid fact, came
to the conclusion that Mr. Ram Sahai
could not be impleaded and in view of the
order passed by the civil Court dated
12.1.1999, there was no reason to
continue with the proceedings under
Sections 145/146 Cr.P.C. in the matter.
Accordingly,
the
proceedings
were
dropped against which the petitioner
preferred a revision before the learned
Addl. Sessions Judge, who also affirmed
the
orders
passed
by
the
learned
Magistrate on the said ground.

8. I have heard Sri R.C. Srivastava,
learned counsel for the petitioner at
length, Sri A.K. Yadav for the respondent
no.2 and the learned A.G.A. for the State.

9. From a perusal of the facts as
brought forth herein above, it is evident
that the Civil Court has passed the order
dated 12.1.1999 in a Suit which had been
instituted prior to the initiation of the
proceedings under Section 145 Cr.P.C.
The order has been passed after taking
notice of all the facts pertaining to the
dispute between the parties. The petitioner
has already preferred an Appeal against
the said order which is stated to be
pending. If that is so, then the remedy of
the petitioner lay by approaching the civil
Court for the redressal of his grievances,
if any, in respect of the finding of
possession which has been returned
against him in the order dated 12.1.1999.
The Magistrate in the proceedings under
Section 145 cannot sit in Appeal over the
said inference drawn by the civil Court. In
case the petitioner wants to establish his
possession then the same can now be
done only by way of the reversal of the
finding recorded in the order dated
12.1.1999 and not by a finding by the
Magistrate, who will have no authority to
proceed with the matter keeping in view
the law laid down by the Apex Court in
the case of Ram Sumer Puri Vs. State,
AIR 1985 SC 472, followed in the case of
Amresh Tiwari Vs. Lalta, reported in AIR
2000 SC 1504. The Magistrate, therefore,
cannot be said to have erred in dropping
the proceedings as all such remedies
including
redressal
on
account
of
violation of an order or the restitution of
170 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the possession of a property can always
be had from the concerned court. The
civil Court has all powers under Order 39
Rule 2 and Rule 2-A for either granting
appropriate
orders
or
ensuring
the
compliance thereof. The civil Court in
view of the provisions of Section 144
C.P.C. also have the power of restitution
and in view of the provisions of order 40
CPC, the civil Courts also has the power
to appoint a receiver in case the occasion
so arises. Similarly, the revenue court
entertaining a Suit under Section 229-B
has the power to pass orders of interim
injunction
as
is
evident
from
the
provisions of Section 229-D of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950. Not only this, in view of the
provisions of Section 341 of the said Act,
the provisions of the Code of Civil
Procedure in so far as they are not
expressly excluded shall apply to the
proceedings in a revenue Suit as well.
Thus, there is a complete machinery
available both before the civil Court as
also before the revenue court for the
redressal of the grievances of the
petitioner, if any, on the facts as alleged.
Sofaras the breach of peace or the
existence of an emergent situation is
concerned, it is evident that the order
under 146 (1) was passed almost after 13
months of the drawing of the proceedings.
There is nothing on record to indicate any
apprehension of breach of peace and even
if it were existing, then the remedy of the
petitioner is to approach the concerned
court as noticed herein above for
appropriate orders.

10. In the light of what has been
stated above, it cannot be said that the
Magistrate has proceeded erroneously or
has failed to exercise the jurisdiction
vested in him in accordance with law. For
the same reason, the order passed in
revision also does not call for any
interference by this Court in the exercise
of extra ordinary jurisdiction under
Article 226 of the Constitution of India.
The parties are at liberty to approach the
concerned court for the redressal of their
grievances and the observations made
herein above shall in no way impede the
proceedings before either the civil Court
or the revenue Court who shall be free to
pass orders untrammelled by any of the
observations made herein above.

11. The writ petition is, accordingly,
dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.01.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

F.A.F.O. No.333 of 1986

Employees State Insurance Corporation,
Kanpur

...Appellant (Respondent)
Versus
Sri B.S. Saini and another

...Respondents (Appellant)

Counsel for the Appellant:
Sri B.N. Asthana

Counsel for the Respondents:

Employees State Insurance Act-Section
85-B-Liability to pay interest-as well as
penality-without
considering
several
mitigating circumstances like reduction
in
business
prolonged
strike
etc.-
employer already paid the due amountheld-non
consideration
vitiate
entire
finding-direction
issued
for
fresh
consideration.

Held: Para 8