# Vinod Kumar Shukla & Anr. Revisionists v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-18
- **Case number:** Criminal Revision No. 2998 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-shukla-anr-revisionists-v-state-of-u-p-ors-51176
- **Pages:** 10

## Headnote

Law
-
Code
of
Criminal
Procedure,1973
-
Section
397/401-
300 INDIAN LAW REPORTS ALLAHABAD SERIES
Revisionist moved an application under Section
145 Cr.P.C. -claim as owner in possession in
disputed land-opposite parties were trying to
grab the disputed land and prepared to engage
in violent acts- initiated action under Section
107, 116 Cr.P.C. - the same is liable to be
attached in proceedings under Section 145
Cr.P.C- finding of fact recorded by learned trial
court cannot be disturbed or replaced by new
finding of fact by revisional court unless the
same appears to be perverse. - the finding is
based on a due appreciation of material on
record-Civil Suit is pending between the parties
-but
no
ad-interim
order
or
temporary
injunction has been passed therein-The learned
Executive Magistrate has released the property
in dispute in favour of opposite party, until a
contrary order or an order with regard to title
and possession of disputed property is passed
by a competent court-no infirmity in the
impugned order.

Revision dismissed. (E-9)

List of Cases cited:

## Text

10 All. Vinod Kumar Shukla & Anr. Vs. State of U.P. & Ors.
299

"9. In the present case,
the impugned F.I.R. was registered
u/s 3(1) Gangsters Act, without
mentioning
the
corresponding
provision, mentioning the anti
social activities in which the
accused is involved and on the
basis of which he was named as
gangster. A person cannot be
punished without specifying the
offence committed by him which
would justify his classification as a
Gangster."

20. In the present case, the
base case was registered under
Sections 60/63 the Excise Act and
Sections 419, 420, 307, 467, 468,
471 IPC in which charge-sheet was
filed on 14.02.2020 and there was
no material to show that base case,
in the present case, comes within
the purview of the Gangster Act
though the same is punishable
under the Excise Act as well as IPC
and the charge sheet was filed more
than three years back, therefore,
bar of proviso of Rule 4(2) of the
Gangster Rules is applicable and
the petitioner cannot be named as a
member of a gang on the basis of
base case mentioned in the gang
chart in which charge-sheet has
been filed.

21.

However,
it
is
observed that if an earlier occasion
the Gangster Act was imposed
against a person and charge-sheet
was filed then any subsequent
illegal activities falling within Subsection (i) to (xxv) of Clause (b) of
Section 2 of the Gangster Act
would come within the purview of
the Gangster Act, if there is other
supporting material regarding his
involvement in the activities of a
gang and in that case the Gangster
Act can be imposed, even after
three years.

22. The impugned FIR is
registered u/s 3(1) of the Gangster
Act
without
mentioning
the
corresponding provision of Section
2(b) of the Gangster Act, therefore,
the same is illegal in view of the
law laid down in the case of Asim
@ Hassim (supra)

23. In view of the above,
the present petition is allowed and
the FIR dated 29.02.2024 along
with its gang-chart is hereby
quashed.
----------
(2024) 10 ILRA 299
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.10.2024

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 2998 of 2023

Vinod Kumar Shukla & Anr. ...Revisionists
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Revisionists:
Sri Ajay Kumar Jagdish, Sri Ayush Mishra,
Sri Nitin Sharma, Sri Prabha Shanker
Mishra, Sri Ram Kumar Dubey

Counsel for the Respondents:
G.A., Sri Ram Sajiwan Mishra, Sri Tarun
Kumar Shukla

Criminal
Law
-
Code
of
Criminal
Procedure,1973
-
Section
397/401-
300 INDIAN LAW REPORTS ALLAHABAD SERIES
Revisionist moved an application under Section
145 Cr.P.C. -claim as owner in possession in
disputed land-opposite parties were trying to
grab the disputed land and prepared to engage
in violent acts- initiated action under Section
107, 116 Cr.P.C. - the same is liable to be
attached in proceedings under Section 145
Cr.P.C- finding of fact recorded by learned trial
court cannot be disturbed or replaced by new
finding of fact by revisional court unless the
same appears to be perverse. - the finding is
based on a due appreciation of material on
record-Civil Suit is pending between the parties
-but
no
ad-interim
order
or
temporary
injunction has been passed therein-The learned
Executive Magistrate has released the property
in dispute in favour of opposite party, until a
contrary order or an order with regard to title
and possession of disputed property is passed
by a competent court-no infirmity in the
impugned order.

Revision dismissed. (E-9)

List of Cases cited:

1. Munshi Ram Vs St. of Raj., through Pp
Nemaram
son
of
Bhagirath
Ram,
Tehsil
Maulasar, District Didwana Kuchaman Raj vide -
S.B. Criminal Misc. (Pet.) No.4923 of 2024

2. Ram Sumer Puri Mahant Vs St. of U.P. & ors.
reported in 1985 (1) SCC 427

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Instant Criminal Revision has
been preferred under Section 397/401 Cr.P.C.
against the final order dated 03.04.2023
passed by Up Zila Magistrate, Tehsil
Machalishahar, District Jaunpur in Case
No.02711 of 2018 (Vinod Kumar Vs. Arun
Kumar) under Section 145 Cr.P.C., with
prayer to set-aside the impugned order and
directing the opposite party No.4 to 6 not to
interfere in peaceful possession of the
applicants in land in dispute which is Abadi
Land situated at village Hemapur Tarathi,
Police Station Mungra Badshahpur, Tehsil
Machhali Shahar, District Jaunpur.

2. Heard learned counsel for the
revisionist and learned A.G.A. for the Staterespondent and perused the material available
on record.

3. On perusal of record it appears
that the applicants/revisionists Vinod Kumar
Shukla and Anil Kumar Shukla sons of Ram
Deo Shukla moved an application under
Section 145 Cr.P.C. before the Up Zila
Magistrate, Machalishahar, District Jaunpur
against present respondent Nos. 4,5 and 6
with averments that the disputed land
originally belonged to Ram Pyari Devi wife
of Madhav Prasad, who was owner in
possession of the land in dispute during her
life time. She executed a Will deed in favour
of the mother of the applicants, and after
death of Ram Pyari, the mother of the
applicants/revisionists
namely
Raj
Kali
entered thereon as owner in possession. The
opposite parties were trying to grab the
disputed land and for that purpose they were
prepared to engage in violent acts. The local
police apprehending the breach of peace,
initiated action under Section 107, 116
Cr.P.C. in the matter, as there was constant
threat of breach of peace in regard to disputed
land and the same is liable to be attached in
proceedings under Section 145 Cr.P.C,
otherwise any serious incident is likely to
occur. The boundary marks on disputed land
are given a foot of land and the application
shows which may be read as under:-

East- House and Shahan Ram Dev
West- Kharanja road and Shivam
Sundaram Jogi Beer Baba Mandir
North- Pucca House of Rajkali
South- Pucca House of respondent
No.2
10 All. Vinod Kumar Shukla & Anr. Vs. State of U.P. & Ors.
301
4. The chalani report was filed by
local police also on 15.04.2018, in which it
is stated there there is land dispute between
the parties with regard to abadi land, and
both parties are claiming their title and
possession thereon. The land in chalani
report is marked by red lines and denoted
as ABCD. In chalani report also a site plan
is shown, which is similar too that shown in
application filed by applicants Vinod
Kumar Shukla and others in application
under Section 145 Cr.P.C. The police
officer also prayed for attachment of land
in dispute to avoid any in incident of
breach of peace, which is likely to be
caused due to tension prevalent on the spot.
The opposite parties filed written statement
in which they averred that the application
moved by applicants is liable to be
dismissed. The chalani report filed by local
police is against the position appearing on
spot. The parties belonged to same clan and
blood are relatives. The ancestral land was
partitioned between the parties and they are
in possession of their respective share on
this part. The opposite parties got an old
Khaprail house in a portion which was in
dilapidated condition and they constructed
the pucca dalan after demolishing the old
structure, and they have been using the
pucca dalan since time of their father. In
fact, the land marked by ABCD letters in
chalani report has never been in dispute,
because on this land trees are planted and
pillars of construction of Varandah are
lying. A civil suit is also pending with
regard to land in dispute and for that reason
also the proceedings under Section 145
Cr.P.C. are not maintainable.

5. The applicants also took stand
that in their pleadings before the Executive
Magistrate that according to genealogical
table the opposite parties are owner of 1/4th
share of property. Smt. Ram Pyari died in
the year 2011 and thereafter mother of the
applicants namely Rajkali became owner in
possession of the property left by Smt. Ram
Pyari on the basis of registered Will deed.
Opposite parties are not in any manner
concerned with the property inherited by
the mother of the applicants through Will
deed from Smt. Ram Pyari. The notice was
issued after receiving report from police
station on 25.04.2018, some interim orders
were passed on 26.03.2018 and 03.05.2018
by learned Executive Magistrate. When
opposite parties, with intent to grab the
possession of the land in dispute, were
trying to raise pillars etc. to raise a
Varandah in the land in dispute. The
opposite parties also filed a Civil Suit for
cancellation of Will deed propounded by
the applicants and also filed a suit for
permanent injunction separately.

6. Learned Executive Magistrate
after
considering
the
pleadings
and
submissions of the parties observed that a
Civil Suit has been instituted by opposite
parties which is cited as (Varun Kumar and
another Vs. Ram Deo and others) in the
court of Civil Judge (Junior Division)
Jaunpur, which is pending, but the Civil
Suit has been instituted after filing of
application under Section 145 Cr.P.C.
before the Executive Magistrate. The
second chalani report was also filed by P.S.
concerned under Section 145 Cr.P.C.
11.02.2020 which is without any logic and
same is liable to be dismissed.

7. On perusal of chalani report
dated 11.04.2018 filed by P.S. concerned
and site plan given therein, it is obvious
that disputed land ABCD lies at the door of
opposite parties. The pillars raised by
opposite parties is also shown in disputed
land ABCD in chalani report dated
11.04.2018. When opposite parties were
302 INDIAN LAW REPORTS ALLAHABAD SERIES
trying to grab the possession of dispute
land by raising pillars etc. the dispute arose.
The opposite parties moved complaint to
several competent officials by registered
post on 19.11.2017 having been perturbed
by actions of opposite parties, but no action
was
taken
thereon.
Thereafter
this
application was moved before the court of
Executive Magistrate by applicants to
restrain opposite parties to take possession
of the land in an illegal manner, as stated
by applicants in their pleadings. However,
they have also stated that opposite parties
were never in possession of land in dispute,
therefore both the averments are selfcontradictory.

8. According to applicants the
dispute occurred prior to 19.11.2017, it
shows that opposite parties were in
possession of land in dispute sixty days
earlier to commencement of proceedings.
The applicants have claimed themselves as
owner of the land in dispute, but the same
has not been decided in proceedings under
Section 145 Cr.P.C. but only question has
been determined.

9. Learned Magistrate gave a
finding to the effect that opposite parties
were in possession of the land in dispute
which is sixty days earlier to initiation of
action
under
Section
145
Cr.P.C.
Therefore, any dispute regarding title of
land in dispute between the parties can only
be decided by instituting a Civil Suit. With
these findings learned Executive Magistrate
released land in dispute in favour of the
opposite parties till any order with regard to
title of disputed land/possession is decided
by competent court. Learned Magistrate
also directed the opposite parties in the
impugned order that until any adjudication
regarding title of land in dispute is made,
they would not raise any new constructions
on the spot, nor they will change status of
the spot. The Station House Officer
concerned has also been directed that in
case any apprehension of breach of parties
is found between the parties, the punitive
action be taken against them.

10. Learned counsel for the
revisionist
submits
that
the
learned
Executive Magistrate has travelled beyond
jurisdiction while passing the impugned
order in favour of the opposite parties.
Inasmuch as, he has included the house
also in the impugned order, which is not
disputed. It is admitted fact that there is
only dispute of Sahan land lying between
before the house of Ram Pyari Devi and
newly constructed house of opposite
parties. The applicants have not stated in
their application under Section 145 Cr.P.C.
that no pillar has been raised by opposite
party on the land in question. Inasmuch as
in chalani report dated 15.04.2018 the local
police has also not stated any where about
existence of pillars on the land in dispute,
but nevertheless the existence of pillar has
been
assumed
by
learned
Executive
Magistrate in the impugned order. He also
submits that learned Magistrate has not
only released the disputed land in favour of
opposite parties, but also issued an order in
the nature of temporary injunction, which is
without jurisdiction. Learned Executive
Magistrate is not empowered to pass any
order
in
the
nature
of
injunction
proceedings under Section 145 Cr.P.C..
This was a fit case for issuing attachment
order with regard to land in dispute, but
instead a release order has been passed in
favour of opposite parties, which is not
sustainable in the eyes of law.

11. Even due procedure has not
been observed while deciding the case
finally. No evidence has been recorded
10 All. Vinod Kumar Shukla & Anr. Vs. State of U.P. & Ors.
303
during the proceedings under Section 145
Cr.P.C. and the case has been decided only
on the basis of the pleadings of the opposite
parties. No ad-interim injunction has been
granted in Civil Suit filed by the opposite
parties
seeking
relief
of
permanent
injunction. The finding of possession of
opposite parties on the land in dispute is
against the position of spot and not
supported by any cogent evidence.

12. There is gap of period of more
than six months between conclusion of
arguments by the parties and passing of the
impugned judgment by learned Magistrate
and in this period of six months no rearguments were heard.

13. Learned counsel for the
revisionists placed reliance on a judgment
of High Court of Judicature Rajasthan at
Jodhpur in Munshi Ram Vs. State of
Rajasthan, through Pp Nemaram son of
Bhagirath
Ram,
Tehsil
Maulasar,
District Didwana Kuchaman Raj vide
order dated 29.07.2024 in S.B. Criminal
Misc. (Pet.) No.4923 of 2024. The
petitioner was aggrieved by an order passed
by Additional Session Judge in Criminal
Revision No.7 of 2024, whereby the
revision petition filed by respondent No.2
was allowed. In exercise of revisional
jurisdiction, the order dated 28.09.2024
was passed under Section 145/146 Cr.P.C.
by learned Sub Divisional Magistrate by
which, he had provisionally attached
disputed Khasra No.274 and appointed a
receiver as an interim measure was setaside. The High Court dismissed the
petition and held that there were no
grounds to interfere. The High Court
observed as under:-

 "8. Once civil litigations regarding
the property are already pending, the
Magistrate under Section 145 Cr.P.C. should
not delved into making finding on the
civil/possession/title rights of the parties
concerning the property. The purpose of
Section 145 is to maintain public peace and
order when there's a dispute over possession
of property, and not to already been filed
regarding the property, making it thus
unnecessary for the SDM to interfere in the
matter.

 9. Once the civil proceedings are
concededly in progress, the SDM's role is
limited, and issuing orders like appointment
of receiver amounts to overstepping the
boundaries of peace, not to settle property
disputes, which is within the purview of civil
courts. Instead, if there is a need to prevent
breach of peace, the Magistrate can take
measures under Section 107 of the Cr.P.C."

14. Learned counsel for the
revisionists also placed reliance on a
judgment of Hon'ble Supreme Court in Ram
Sumer Puri Mahant Vs. State of U.P. and
others reported in 1985 (1) SCC 427, in
which it is held that there is no scope to doubt
or dispute the position that the decree of Civil
Court is binding on the criminal court in a
matter like one before us in a proceedings
under Section 145 Cr.P.C. that parallel
proceedings should not be permitted to
continue and the event of decree of civil
court, the criminal court should not be
allowed to invoke its jurisdiction particularly
when possession is being examined by the
civil court and parties are in a position to
approach the civil court for interim orders,
such as injunction or appointment of
receiver for adequate protection of the
property during the pendency of the dispute.
Multiplicity of litigation is not in the interest
of the parties, nor should public time be
allowed to be wasted over meaningless
litigation.
304 INDIAN LAW REPORTS ALLAHABAD SERIES
15. Learned counsel for the
respondent No.2 submitted that the land in
dispute stands at the door of the house of
respondent Nos. 4,5 and 6, which is their
sahan land and was allotted to the share of
father of respondent Nos. 4 to 6 in family
settlement which reached about 50 years
ago. Smt. Ram Pyari who belonged to the
khandan of the parties had no right to
bequeath the sahan land of the respondents
in favour of the mother of the applicants,
and on the basis of said will deed the claim
of the applicants/revisionists have acquired
no title whatsoever on the land in dispute
and same was never in possession of the
applicants.

16. The impugned order is based
on facts admitted by the parties in their
pleadings and well within jurisdiction of
the learned Executive Magistrate. The
temporary injunction has been granted in
the interest of justice and the revisionists
are not likely to suffer by temporary
injunction order, the opposite parties
themselves
are
enjoined
to
maintain
statusquo on the spot.

17. Leaned A.G.A. submitted
that there is no irregularity or illegality in
the impugned order passed by learned
Executive
Magistrate,
even
Naib
Tehsildar in his report dated 05.09.2020
addressed to Zila Adhikari has stated that
the disputed site is 3ft. above from the
surface. It is stated therein that the spot
where earth work was done by defendant
Tarun
Kumar
tension
is
prevalent
between the parties. There is no problem
of water evacuation on the spot, as the
same is on height. However, he admitted
in his report the prima facie there was no
occasion of earth work on the spot and
due to this act there is apprehension of
dispute.
18. Learned counsel for the
respondent Nos. 4 to 6 further submitted
that the revisionists never appeared in
both
the
civil
suits
filed
by
the
respondents, even after publication of
notice, in spite of the fact that they are
well within knowledge of both the civil
suits.

19. Learned counsel for the
revisionist submitted that the above
mentioned order of Rajasthan High Court
(supra)
pertains
to
a
provisional
attachment and appointment of receiver
order passed in respect of identical plot
by Sub Divisional Magistrate, as an
interim measure under Section 145/146
Cr.P.C. Whereas in the present case final
order has been passed under Section 145
Cr.P.C. by Up Zila Adhikari in respect
of land in dispute with a finding that on
the basis of evidence on record the
possession
of
second
party
(Arun
Kumar) is found prior to 60 days next
before
the
date
of
initiation
of
proceedings with regard to possession.
First party has failed to established his
possession on undisputed house by
evidence,
if
there
is
any
dispute
regarding the title the parties can seek
appropriate relief by instituting a civil
suit before the competent court. In the
opinion of Magistrate the disputed land
is liable to be released in favour of
second party who is found to be in
possession of the same.

20. The relevant provisions of
Criminal Procedure Code of 1973 is
applicable to present case may be produced
as under:-

 Section 145- Procedure where
dispute concerning land or water is
likely to cause breach of peace.
10 All. Vinod Kumar Shukla & Anr. Vs. State of U.P. & Ors.
305

(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 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 of 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 this 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 sub-section
(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 subsection (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
306 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

 Section 146- Power to attach
subject of dispute and to appoint
receiver

 1. If the Magistrate at any time
after making the order under Sub-Section
(1) of section 145 considers the case to
be one of emergency, or if he decides that
none of the parties was then in such
possession as is referred to in section
145, or if he is unable to satisfy himself
as to which of them was then in such
possession of the subject of dispute, he
may attach the subject of dispute until a
competent Court has determined the
rights of the parties thereto with regard
to the person entitled to the possession
thereof;

 Provided that such Magistrate
may withdraw the attachment at any time
if he is satisfied that there is no longer
any likelihood of breach of the peace with
regard to the subject of dispute.

 2. When the Magistrate attaches
the subject of dispute, he may, if no
receiver in relation to such subject of
dispute has been appointed by any civil
Court, make such arrangements as he
considers proper for looking after the
properly or if he thinks fit. Appoint a
receiver thereof, who shall have, subject to
the control of the Magistrate, all the
powers of a receiver appointed under the
Code of Civil Procedure, 1908 (5 of 1908);

 Provided that in the event of a
receiver being subsequently appointed in
relation to the subject of dispute by any
civil Court, the Magistrate-

 1. shall order the receiver
appointed by him to hand over the
possession of the subject of dispute to the
receiver appointed by the civil Court and
shall thereafter discharge the receiver
appointed by him;

 2.
may
make
such
other
incidental or consequential orders as may
be just.

 21.
The
aforesaid
statutory
provisions provides that Magistrate can
exercise powers under Section 146 Cr.P.C.
on satisfcation of following conditions:-

 (I) At any time after making an
preliminary objection under sub-Section 1
of Section 145 Cr.P.C. considers that
10 All. Vinod Kumar Shukla & Anr. Vs. State of U.P. & Ors.
307
 (1) the case to be one of
emergency, or if he decides that none of the
parties was then in such possession as is
referred to in section 145, or if he is unable
to satisfy himself as to which of them was
then in such possession of the subject of
dispute.

22. After forming the opinon as
envisaged under Section 146 (1) Cr.P.C. he
may attach the subject of dispute until a
competent Court has determined the rights
of the parties thereto with regard to the
person entitled to the possession thereof;

23. The Magistrate may withdraw
the attachment at any time if he is satisfied
that there is no longer any likelihood of
breach of the peace with regard to the
subject of dispute.

24. Although in the impugned
order the learned Magistrate has referred on
some places "disputed land" and another
place "dispute house", but there is no
dispute between the parties that dispute is
with regard to Abadi land which is shown
as per boundary marks in application under
Section 145/146 Cr.P.C. dated 29.01.2018
by the applicants Vinod Kumar Shukla and
Anil
Kumar
Shukla,
the
present
revisionists.
The
parties
to
dispute
belonged to same clan and they have been
co-sharers.
Applicants/revisionist
claim
their title over land in dispute on the basis
of a will deed executed by late Pyari Devi
in favour of their mother and respondents
claimed that the said land was allotted to
their share in partition of ancestral
property.

25. It is trite law that a finding of
fact recorded by learned trial court cannot
be disturbed or replaced by new finding of
fact by revisional court unless the same
appears to be perverse. On a perusal of
impugned order passed by Up Zila
Magistrate (SDM), the finding of fact
regarding possession of respondent Nos. 4
to 6 in disputed land cannot be said to be
perverse as it is based on a due appreciation
of material on record. Although a Civil Suit
No.572 of 2018 Varun Kumar Vs. Ram
Deo is pending between the parties in the
court of Civil Judge (JD) Jaunpur, but no
ad-interim order or temporary injunction
has been passed therein. This Civil Suit
was instituted by present respondent No.5
after initiating present proceeding under
Section 145/146 Cr.P.C. at the instance of
revisionist. Only due to the fact that civil
court did not find it proper to issue an adinterim exparte injunction in favour of the
plaintif (present respondent No.5) in civil
suit, it cannot be inferred that the civil court
had not found him in possession at the
outside. The grant of exparte injunction is
not a rule but an exception and it can only
be granted in cases where all the necessary
parameters prima facie find support, for
grant of exparte injunction. In present
revision the revisionists have themselves
sought a consequential relief in the nature
of injunction.

26.

The
learned
Executive
Magistrate has released the property in
dispute in favour of opposite party, until a
contrary order or an order with regard to title
and possession of disputed property is passed
by a competent court. I find no infirmity or
illegality or perversity in the impugned order
03.04.2023 passed by Up Zila Magistrate,
Tehsil Machalishahar, District Jaunpur. The
impugned order will be subject to any order
passed by civil court in relation to property in
suit. The revision is devoid of merit, and is
liable to be dismissed.

27. The revision is dismissed.
308 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 10 ILRA 308
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.10.2024

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 4411 of 2023

Sarita Sharma ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Ambreen Masroor, Sadrul Islam Jafri,
Sr. Adv.

Counsel for the Respondents:
G.A., Sri Ram Rang Patel

Criminal
Law
-
Code
of
Criminal
Procedure,1973
-
Section
156(3)-
Applicant/victim moved application u/s 156(3)
Cr.P.C. -dismissed-impugned-case of outraging
modestly of a woman and criminal intimidation
etc.- dismissed the application on the basis of
preliminary inquiry report submitted by the
police, in which no Statementof witnesses was
recorded-placing reliance on police report
submitted in favour of the proposed accused is
neither desirable nor lawful-impugned order set
aside.

Revision allowed. (E-9)

List of Cases cited:

1. 'XYZ' Vs St. of M.P. & ors. reported in 2022
(0) SC 740

2. Priyanka Srivastava & anr.Vs St. of U.P. 2015
(6) SCC 287

3. Lalita Kumari Vs Government of U.P. (2014) 2
SCC 1

4. Kailash Vijayvargiya Vs Rajlakshmi Chaudhuri
5. Manju Surana Vs Sunil Arora & ors. reported
in (2018) 3 SCR 696

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Instant Criminal Revision has been
preferred under Section 397/401 Cr.P.C.
against
the
impugned
order
dated
23.06.2023
passed
by
learned
Chief
Judicial Magistrate, Hathras in Criminal
Complaint Case No.849/12/2022, whereby
application
moved
by
the
applicant/revisionist under Section 156(3)
Cr.P.C. has been dismissed.

2. Heard Sri N.I.Jafri, learned
Senior Advocate assisted by Sri Ali Jamal
Khan and Sri Sadrul Islam Jafri learned
counsel for the revisionist, Sri Saghir
Ahmad learned Senior Advocate assisted
by Sri Rahul Kumar Sharma and learned
A.G.A. for the State-respondent and
perused the material available on record.

3. Brief facts of the case are that
the applicant who is the victim has moved
application under Section 156(3) Cr.P.C.
stating therein that the incident occurred on
24.06.2022 at 01:00 pm. When she moved
towards office after finishing her teaching
work in Civilian School run by Basic
Education Department, Kota in Block
Mursan,
District
Hathras,
suddenly
opposite party Laxmi Narayan Sharma who
was working as Head Master in Primary
School Nagla Mallu, Block Mursan,
District Hathras emerged there and asked
her to stop, when she reached in the
veranda of the school he abused her in
filthy language and asked for her husband
Jitendra Sharma in abusive language, then
she stopped her to abuse them, he again
abused her and acted in obscene manner