# Virendra & Ors. Revisionists v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2022) 12 ILRA 591
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-08
- **Case number:** Crl. Revision No. 1119 of 2013
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-ors-revisionists-v-state-of-u-p-ors-opp-parties-47945
- **Pages:** 10

## Headnote

Govt. Advocate, Sri Avadhesh Pratap Singh, Sri
Awadhesh Pratap Singh, Sri Niyaz Ahmad
Khan(Sr. Advocate)

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 397/401 & 145learned Magistrate passed ad interim
injunction order in favour of the party,
who initiated the proceeding u/s 145
Cr.P.C. and passed the order to attach the
subject matter of dispute, giving it to
some impartial custodian till decision of
question of title-Ld. Magistrate had not
given his satisfaction as required u/s
145(1) Cr.P.C. regarding dispute is likely
to cause the breach of peace or state of
emergency u/s 146(1) Cr.P.C.-Instead of
deciding that none of the parties were
then
in
possession,
Ld.
Magistrate
observed that the opposite parties have
usurped the possession of the entire
disputed plot in violation of civil court's
order-Thus,
the
jurisdiction
u/s
146
Cr.P.C. cannot be exercised where the
applicant has been dispossessed prior to
two months by the opposite party-Thus,
the
impugned
order
passed
by
Ld.
Magistrate u/s 145 Cr.P.C. is set asideParties are relegated to avail remedy
before civil court-it is open to respondent
who is presently recorded tenure holder of
592 INDIAN LAW REPORTS ALLAHABAD SERIES
the
land
in
dispute
that
if
he
is
dispossessed in violation of ad interim
injunction order of civil court, he may
move application for enforcement and
punishment
for
disobedience
of
that
order-Ld. Magistrate will be within his
right
to
initiate
proceeding
section
107/151 Cr.P.C., if any of the party likely
to commit breach of peace.(Para 1 to 21)

The revision is allowed. (E-6)
List of Cases cited:

## Text

12 All. Virendra & Ors. Vs. State of U.P. & Ors.
591
a Government scientific expert to whom
this section applies, upon any matter or
thing duly submitted to him for examination
or analysis and report in the course of any
proceeding under this Code, may be used
as evidence in any inquiry, trial or other
proceeding under this Code.

(2) The Court may, if it thinks fit,
summon and examine any such expert as to
the subject-matter of his report.

(3)
Where
any
such
expert
is
summoned by a Court, and he is unable to
attend personally, he may, unless the Court
has expressly directed him to appear
personally, depute any responsible officer
working with him to attend the Court, if
such officer is conversant with the facts of
the case and can satisfactorily depose in
Court on his behalf.

(4) This section applies to the
following Government scientific experts,
namely:--(a) any Chemical Examiner or
Assistant
Chemical
Examiner
to
Government; (b) the Chief Controller of
Explosives; (c) the Director of the Finger
Print Bureau; (d) the Director, Haffkeine
Institute, Bombay; (e) the Director 1[,
Deputy Director or Assistant Director] of a
Central Forensic Science Laboratory or a
State Forensic Science Laboratory; (f) the
Serologist to the Government; (g) any other
Government scientific expert specified, by
notification, by the Central Government for
this purpose."

25. In view of the aforesaid
discussion, I am of the view that the
impugned order passed by the learned trial
court does not require any interference by
this Court in exercise of its revisional
jurisdiction under Section 397 read with
Section 401 Cr.P.C.

26. Thus, revision has no merit and
substance, which is hereby dismissed.
----------
(2022) 12 ILRA 591
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2022

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Crl. Revision No. 1119 of 2013

Virendra & Ors. ...Revisionists
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Revisionists:
Sri Krishna Nand Yadav, Sri Parmeshwar Yadav

Counsel for the Opp. Parties:
Govt. Advocate, Sri Avadhesh Pratap Singh, Sri
Awadhesh Pratap Singh, Sri Niyaz Ahmad
Khan(Sr. Advocate)

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 397/401 & 145learned Magistrate passed ad interim
injunction order in favour of the party,
who initiated the proceeding u/s 145
Cr.P.C. and passed the order to attach the
subject matter of dispute, giving it to
some impartial custodian till decision of
question of title-Ld. Magistrate had not
given his satisfaction as required u/s
145(1) Cr.P.C. regarding dispute is likely
to cause the breach of peace or state of
emergency u/s 146(1) Cr.P.C.-Instead of
deciding that none of the parties were
then
in
possession,
Ld.
Magistrate
observed that the opposite parties have
usurped the possession of the entire
disputed plot in violation of civil court's
order-Thus,
the
jurisdiction
u/s
146
Cr.P.C. cannot be exercised where the
applicant has been dispossessed prior to
two months by the opposite party-Thus,
the
impugned
order
passed
by
Ld.
Magistrate u/s 145 Cr.P.C. is set asideParties are relegated to avail remedy
before civil court-it is open to respondent
who is presently recorded tenure holder of
592 INDIAN LAW REPORTS ALLAHABAD SERIES
the
land
in
dispute
that
if
he
is
dispossessed in violation of ad interim
injunction order of civil court, he may
move application for enforcement and
punishment
for
disobedience
of
that
order-Ld. Magistrate will be within his
right
to
initiate
proceeding
section
107/151 Cr.P.C., if any of the party likely
to commit breach of peace.(Para 1 to 21)

The revision is allowed. (E-6)
List of Cases cited:

1. Gulab Chand Vs St. of U.P. & anr. (2004) CrLJ
2672

2. Shivmurti Pandey & ors. Vs Bharati Lal
Pandey

3. Girish Chandra Upadhyay Vs St. of U.P. &
anr. (2007) 2 DNR HC 387

4. Munna Singh @ Shivaji Singh & anr. Vs St. of
U.P. & anr. (2011) 9 ADJ 98

5. Ganesh Prasad & ors. Vs St. of U.P. & ors.
Crime 2686 of 2016

6. Ram Raj Vs St. of U.P. (1995) U.P. Cri R 745
All

7. Darshan Lal Vs Sain Dass (2002) CriLJ 3214

8. Ranjeet Singh Vs Moti Lal Katiyar (1988) 1
Crimes 102 All

9. Mangi Lal Vs Bhangmal (1988) CrLJ 1905

10. Om Prakash Vs Dharam Chand (1998) 3
Crimes 898, 902

11. Neelam Singh Vs St. of U.P. (1999) CriLJ 90

12. Manzooran Vs St. of Punj. (1988) 1 Crimes
547

13. Balwant Singh Vs Daulat Singh (1997) 7 SCC
137

14. Jitendra Singh Vs St. of M.P. (2021) SCC
OnLine SC 802
(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard Sri Krishna Nand Yadav,
learned A.G.A. for the State and perused
the record.

2. The present revision under Section
397/401 of Cr.P.C. has been preferred by
the accused persons against the judgment
and order dated 30.03.2013 passed by the
Sub Divisional Magistrate Sadar, District
Maharajganj in Complaint Case No.
119/123 (State vs. Ram Bhawan & others)
under Section 145 of Cr.P.C., Police
Station- Chowk, District Maharajganj. The
Sub
Divisional
Magistrate,
Sadar,
Maharajganj vide impugned order has
attached 1⁄2 part of the land in dispute Araji
No. 550, Ara 0.737 hectare, Araji No. 573,
Area 1.753 Hectare, Araji No. 606, Area
1.181 Hectare and Araji No. 454, Area
0.117 Hectare, till disposal of the question
of right and title of the parties. He also
directed the S.H.O- Chowk to take
possession of the plots in dispute and give
the entrustment of same to any impartial
person who will provide the statement of
income and expenditure of the plots before
the Court from time to time. Any further
proceeding in the case will not be
undertaken after the final adjudication of
the question of succession of the property
of deceased- Shahdeo.

3. Feeling aggrieved by the impugned
order, all the opposite parties, who are
collateral of the deceased- Ram Bhavan
and the original owner of the property, have
filed present revision before this Court
under Section 397/401 Cr.P.C. Notices
were issued to the respondent- first party
before the Court of Magistrate and they put
in appearance through their counsel and
12 All. Virendra & Ors. Vs. State of U.P. & Ors.
593
filed counter affidavit on 16.9.2016, which
is placed on record.

4. In Gulabchand vs. State of U.P.
and
Another,
(2004)
CrLJ
2672,
Allahabad High Court held that an order
passed by Executive Magistrate, attaching
the property under Section 146(1) Cr.P.C.,
when there was totally no material before
the Magistrate to record his satisfaction
regarding likelihood of breach of peace,
being mentioned, is not interlocutory order
and revision under Section 397 Cr.P.C.
against
such
order
is
maintainable.
Therefore, in the light of aforesaid
precedent, this revision is maintainable
before this Court.

5. Admit.

6. The facts in brief as carved out
from the counter and rejoinder affidavits
are as follows:

(i) The respondent- Ram Bhawan, who
has claimed himself as son of the sole
daughter of the deceased- Shahdeo had
filed an application under Section 145
Cr.P.C. before the Court of Upper Zila
Magistrate, Sadar, Maharajganj, wherein it
was stated to the effect that there is dispute
of possession between him and opposite
party- Virendra and others. The S.D.O.
concerned reported to learned Executive
Magistrate that the plots in dispute were
property of deceased Shahdeo, who died
long before. He was blessed with a
daughter, who had also died. The dispute of
succession of said property of Shahdeo is
under litigation between Ram Bhawan and
collaterals of Shahdeo before different
courts. Name of Virendra and others
(opposite party-respondents) is recorded in
Khatauni and they are in possession over
the disputed plots. Proceeding under
Section 107/116 Cr.P.C. have also been
undertaken against both parties. Therefore,
with a view to maintain law and order and
keeping in view the maintainable litigations
between the parties, it is desirable that the
disputed property be attached and the
question of real heirs of deceased- Shahdeo
be adjudicated upon.

(ii) During the course of proceedings
under Section 145 and 146 Cr.P.C.,
opposite
party-
Janardan-
present
revisionist No.3 had moved an application
before the Court of learned Magistrate
stating therein that the plaintiff Ram
Bhawan has filed a civil suit for injunction,
in which injunction has been granted in
favour of the plaintiffs and in this fact of
situation and in accordance with law, the
present suits are not maintainable and are
liable to be dismissed.

(iii) Learned Magistrate has observed
in impugned order dated 30.3.2013 that
from the perusal of material on record, it
appears that manifold suits and proceedings
are pending before various courts with
regard to disputed plots and in civil suits
filed by the plaintiff- Ram Bhavan, the civil
court has injuncted the opposite party from
interfering in possession of plaintiff but in
spite of injunction order of civil court,
opposite party and others have taken
possession of complete area of disputed
plots, in disobedience of civil court's order.

(iv) The opposite party has taken
resort of a decided case of this Hon'ble
High Court, cited as Shivmurti Pandey
and others vs. Bharati Lal Pandey,
according to which, in case of pendency of
prior civil suit, no proceeding under
Section 145 Cr.P.C. can be undertaken by
Judicial Magistrate but the first party had
taken recourse of a judgement of Hon'ble
Allahabad High cited as Girish Chandra
Upadhyay vs. State of U.P. and Another,
2007 (2) DNR (HC) 387, in which it is
594 INDIAN LAW REPORTS ALLAHABAD SERIES
held that the Magistrate is empowered to
pass appropriate orders with a view to
maintain law and order under Section
145/146 Cr.P.C. even during pendency of
civil
suit.
Thus,
learned
magistrate
concluded that tension is prevalent between
the parties in view to their respective
claims regarding the possession of the
property of deceased- Shahdeo and there is
apprehension of breach of peace any time
and thus, in this situation, the disputed
property is liable to be attached until
adjudication of question of real successor
of deceased- Shahdeo.

(v) From the perusal of record, it also
appears that respondent No.3- Ram Bhavan
is claiming his title and possession over
disputed
property
on
the
basis
of
succession claiming himself as the son of
Smt. Fuda, daughter and sole heir of
deceased- Shahdeo whereas revisionists,
opposite parties before the Magistrate, has
claimed their right over the disputed
property on the basis of unregistered Will
deed dated 31.3.1978, purportedly executed
by Shahdeo, in favour of Prahlad and
others. The revisionist Surendra is son of
said
Prahlad.
The
respondents
have
questioned the veracity of the said Will
deed in various judicial proceedings and
alleged it manufactured document, which
was not executed by deceased- Shahdeo.
The respondent No.3- Ram Bhavan filed a
civil suit No. 402 before the court of Civil
Judge (J.D.), Maharajganj on 28.5.2009,
wherein, the Civil Judge has passed interim
order
on
28.5.2009,
in
which
the
defendants Virendra and others are directed
to
restrain
from
interfering
in
the
possession of plaintiff regarding disputed
plots of its half share claimed by the
plaintiffs.

(vi) It is also obvious from the record
that for deciding the question of title of
disputed plots, mediation proceeding has
been taken before various revenue and
conciliation courts by the parties and the
matter is still pending before conciliation
court for decision.

7. Feeling aggrieved by the impugned
order of learned Magistrate, this revision
has been preferred mainly on the ground
that
learned
Magistrate
has
passed
impugned order dated 30.3.2013, on a
complaint/application
dated
27.7.2012,
made by the respondent No.3 before him,
while
appeal
No.2468
of
2017
Consolidation and Holdings Act is pending
before
the
Settlement
Officer
of
Consolidation and Holdings. Order of
Consolidation Officer has been stayed by
the Settlement Officer on 17.10.1988,
despite that the land in question has been
attached under Section 146(1) Cr.P.C. by
the impugned order, which is illegal,
arbitrary and against the mandate of law.

8. The impugned order has been
passed on the basis of report submitted by
the Sub In-charge of Police Station
concerned.
Valuable
rights
of
the
revisionists has been vacated by the
impugned
order.
Learned
Magistrate
exercising its jurisdiction, not vested in him
by the law, passed the impugned order
without going into the merits of the case
and considering the material evidence
adduced by the revisionists, hence, the
same is liable to be set aside by this Court
and suitable orders may be passed.

9. The objection to present revision
has been filed in the form of counter
affidavit by the respondent No.3, wherein it
is stated that admittedly the land in dispute
belongs to deceased- Shahdeo, who died.
His sole daughter Fuda was her heir and
legal representative and the defendantrespondent No.3 is son of said Fuda. The
12 All. Virendra & Ors. Vs. State of U.P. & Ors.
595
revisionists have no concern with the land
in dispute, as they tried to interfere in the
peaceful possession of respondent No.3,
hence, he made complaint before the police
with regard to land in dispute. The
impugned order was passed by the learned
Magistrate only to maintain peace on the
spot and is correct. Deceased- Shahdeo
never executed any deed to create any right
in
favour
of
anyone
including
the
revisionists. In fact, he remained as owner
in possession of the property in dispute up
to his lifetime and, therefore, property
vested in his daughter, who is mother of
defendant. The Will deed propounded by
the revisionists is a forged document and it
was never executed by the said Shahdeo in
favor of his nephew Virendra and others.
Consolidation Authorities have found that
Shahdeo was inherited by his daughter
Fuda and now by respondent No.3 Ram
Bhawan, hence, the allegations in respect
of consolidation proceedings are baseless
and have no locus to stand. The name of
Fuda has been maintained by order dated
16.12.2014 passed by the Consolidation
Officer and the same has been acted upon
in Khatauni thus, the name of mother of
respondent No.3 is recorded as heir of
deceased- Shahdeo in Khatauni, copies
thereof are filed along with the counter
affidavit. There is an injunction order of
civil court in favour of the respondent
No.3. However, in violation of the order of
civil court, revisionists are trying to
interfere in the peaceful possession of
respondent
No.3,
hence,
thereby
appreciation of breach of peace justifying
the
police
action
and
consequent
proceeding under Section 145/146 Cr.P.C.

10. In rejoinder affidavit, the
revisionist have stated that the names of the
revisionists had already been recorded as
early as on 19.3.1978 on the basis of Will
executed by deceased- Shahdeo in favour
of the revisionist and they are in possession
over this land in dispute on the basis of said
Will deed. In such a scenario, the impugned
order dated 30.3.2013 is illegal and not
sustainable under the eyes of law.

11.

Learned
counsel
for
the
revisionists advanced his submissions in
present revision pressing the grounds taken
in revision and placed reliance on a Full
Bench Judgement of this Court in case of
Munna Singh @ Shivaji Singh and
Another vs. State of U.P.and Another,
2011 (9) ADJ 98, wherein, it was held that
orders passed under Section 145 (1) and
146(1) of the Code are not in every
circumstance,
orders
simplicitor,
and
therefore a revision would be maintainable
in the light of the observations made in this
judgment depending on the facts involved
in each case.

12. The invoking of the emergent
powers under Section 146(1) Cr.P.C. is
dependent on the satisfaction of the
Magistrate that it is a case of emergency
and none of the parties are in possession or
the Magistrate at that stage unable to decide
as to which of the parties was in
possession. It is only then that attachment
can be resorted to. An emergency is an
unforeseen occurrence or a crisis with a
pressing
necessity
which
demands
immediate action. An emergent situation is
one that suddenly comes to notice and is
almost unexpected or unapprehended. It is
a situation that requires prompt attention
impelling immediate action. The action to
be taken would however be dependant on
the satisfaction of a Magistrate recorded
under Section 145 (1) Cr.P.C. that there
exists an apprehension of breach of peace
either on the basis of a police report or
upon other information received. The order
596 INDIAN LAW REPORTS ALLAHABAD SERIES
of attachment on such a dispute being
brought to the notice of the Magistrate
therefore is clearly linked with the right of
a party to retain lawful possession. The
aforesaid ingredients have to exist to allow
the Magistrate to exercise his authority
within his jurisdiction.

13.

Learned
counsel
for
the
revisionists further submitted that in
impugned order itself it is stated by the
Magistrate that the opposite party has taken
possession over entire disputed land. Thus,
it cannot be said that the Magistrate has
decided that none of the parties then was in
possession as referred in Section 145
Cr.P.C. wherein it is 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).
Learned counsel next submitted that there
is no finding of learned Magistrate in the
impugned order that the revisionists were
dispossessed within two months next
before the date on which the report of the
police officer for initiating proceeding
under Section 145 Cr.P.C. was received by
him as proceeding under Section 145(4)
proviso. Thus, learned Magistrate has also
not decided the question of emergency as
provided under Section 146(1) Cr.P.C. and
passed the impugned order to the detriment
of the revisionists who were in possession
of the property in dispute.

14. In Ganesh Prasad & Others vs.
State of U.P. & Others, Crime 2686 of
2016 decided on 27.3.2018, attachment
order passed by the Magistrate under
Section 146(1) Cr.P.C. was challenged
before this Court, wherein it was observed
as under:

"31. The invoking of the emergent
powers under Section 146 (1) Cr. P.C. is
dependent upon the satisfaction of the
Magistrate that it is a case of emergency
and none of the parties are in possession or
the Magistrate at that stage unable to
decide as to which of the parties was in
possession. It is only then that attachment
can be resorted to. An emergency is an
unforeseen occurrence or a crisis with a
pressing
necessity
which
demands
immediate action. An emergent situation is
one that suddenly comes to notice and is
almost unexpected or un-apprehended. It is
a situation that requires prompt attention
impelling immediate action.

32 . The action to be taken would
however be dependent on the satisfaction of
a Magistrate recorded under Section 145
(1)
Cr.
P.C.
that
there
exists
an
apprehension of breach of peace either on
the basis of police report or upon other
information
received.
The
order
of
attachment on such a dispute being brought
to the notice of the Magistrate therefore is
clearly linked with the right of a party to
retain lawful possession. The aforesaid
ingredients have to exist to allow the
Magistrate to exercise his authority within
his
jurisdiction.
Accordingly
the
assumption of jurisdiction is dependent on
the contingency that may arise in a dispute
referable to the said provisions and hence
what necessarily follows that if there is an
exercise for want of jurisdiction or
erroneous exercise of jurisdiction, then the
order on the given facts of a case may not
be a mere interlocutory order. If the
exercise of a power and passing of an order
is questionable to the extent of touching the
12 All. Virendra & Ors. Vs. State of U.P. & Ors.
597
rights of the parties or are orders of
moment, depending on the peculiar facts of
individual cases, then the order in our
opinion would be an intermediate nature of
an order that can be subjected to a revision
under Section 397 Cr. P.C.

33. The legislature in its wisdom will
be
presumed
to
have
curtailed
the
revisional jurisdiction to the extent as spelt
out under sub-section (2) of Section 397 Cr.
P.C. in order to prevent any delays or
unnecessary impediments in proceedings
relating to trials under the Criminal
Procedure Code. As noticed above, the
orders which do not fall within the exact
nature of an interlocutory order may
therefore not be prohibited from being
subjected to a revision in larger public
interest. A litigant who is aggrieved by an
action which does not involve immediate
urgency can always knock the doors of the
revisional Court, dependent on the facts of
each
individual
case
as
explained
hereinabove.

34 . We would also like to add that
there were divergent views with regard to
the
jurisdiction
of
the
Magistrate
proceeding after attachment under Section
146 (1) Cr. P.C. but the said issue came to
be resolved by the Apex Court in the case of
Mathura Lal vs Bhanwar Lal, 1979 (4)
SCC 665.

35. In view of what has been expressed
herein
above,
we
find
ourselves
in
respectful
agreement
with
the
views
expressed by the various courts and this
Court to the effect that there is a third
category of order which falls in between an
interlocutory and final order that does
touch upon the rights of the parties and is
an order of moment. An order under
Section 145 (1) followed by an order under
Section
146
(1),
or
even
passed
simultaneously, bring to the forefront the
primary question of the assumption of
jurisdiction by the Magistrate to proceed in
a matter. If the facts of a particular case do
not
warrant
the
invoking
of
such
jurisdiction, for example, in cases where
civil disputes are pending and orders are
operating, then in view of the law laid
down by the Apex Court in the decisions
referred to herein above following Ram
Sumer Puri Mahant's case (supra), an
order ignoring such proceedings will have
to be curtailed for which a revision would
be maintainable under sub-section (1) of
Section 397 as, such an order, would not be
a mere interlocutory order and would touch
upon the rights of the parties."

15. A photocopy of the unregistered
will deed dated 19.3.1978 propounded by
revisionist is placed on record, which
reveals that in this will deed deceased
Shahdeo, the original owner of the property
in dispute, is shown to have bequeathed his
agricultural property in favour of Virendra
and Surendra, S/o Prahlad and Janardan
and Bal Govind S/o Ram Lal. In this will
deed it is stated that he was not blessed
with any male or female issue. On the basis
of this will deed, the property in dispute
was initially mutated in favour of the
revisionist, who were nephews of the
deceased but subsequently, this was not
relied
upon
by
the
Revenue
and
Consolidation Authorities and presently
name of respondent No.3 Ram Bhawan,
has been directed to be mutated by
Consolidation Officers, as reveals from
order dated 16.12.2014 passed by the
Consolidation Officer after remand of the
case. An ad interim injunction order in
favour of the respondent No.3 is also being
passed by the Civil Court in Civil Suit No.
402 of 2009 on 28.5.2009, in favour of the
respondent No.3 Ram Bhawan against
present revisionists, who are defendants in
that suit. However, on perusal of statutory
598 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions and relevant case law, this is
obvious that for passing a preliminary order
under Section 145 Cr.P.C., the Executive
Magistrate will have to satisfy 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. Similarly,
while passing a final order of attachment
under Section 146 Cr.P.C., the Magistrate
will have to be satisfied that the case is one
of emergency, or he has to decide that none
of the parties was then in such possession.
In the present case, learned Executive
Magistrate has stated in impugned order
that the opposite parties Virendra and
others have usurped the possession of
entire disputed plot in violation of the order
of Civil Court whereas under Section 145
Cr.P.C., the proceedings can be initiated
where it appears to the Magistrate that any
party has been visibly and wrongly
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 of his order under subsection 1 to Section 145 Cr.P.C. Thus, the
jurisdiction under Section 146 Cr.P.C.
cannot be exercised where the applicant has
been dispossessed prior to two months by
the opposite party. Similarly, in impugned
order learned Magistrate has not stated
specifically the matter to be one of
emergency.
No
evidence
has
been
mentioned which might have been recorded
for satisfaction that the case is one of
emergency and instead of giving a finding
that none of the parties was then in such
possession, he has observed that the
opposite parties have usurped possession of
disputed plot in violation of an interim
injunction order of civil court, which was
passed in the year 2009.

16. In Ram Raj vs. State of U.P.,
1995 U.P. Cri R 745 (All), Allahabad High
court held where the civil court had granted
injunction
in
plaintiffs'
favour,
the
proceeding under Section 145 Cr.P.C.
cannot be initiated. Similarly in Darshan
Lal vs. Sain Dass, 2002, CriLJ 3214,
Jammu and Kashmir High Court held that
where
dispute
between
the
parties
pertaining to disputed land is pending in
civil/revenue
courts,
in
such
cases,
preliminary proceeding in respect of some
property are not permissible.

17. In Ranjeet Singh vs. Moti Lal
Katiyar, 1988 (1) Crimes 102 (All), this
Court held that where the question of
possession was involved and pending in the
civil court on the date when the orders
under Section 145 (1) and 146(1) Cr.P.C
were passed and injunction order was in
operation, proceeding cannot be allowed to
continue as it would be nothing but abuse
of process of law.

18. In Mangi Lal vs. Bhangmal,
1988 CrLJ 1905, Madhya Pradesh High
Court held that mere pendency of litigation
may not furnish any justification for
dropping any proceeding where the relief
of temporary injunction has been sought
and obtained ultimately be urged that
despite the order granting temporary
injunction apprehension of breach of the
peace still exists and the order granting
temporary injunction in any way is less
efficacious than the 145 (6) (A) Cr.P.C.
However, in Om Prakash vs. Dharam
Chand 1998 (3) Crimes 898, 902, Jammu
and Kashmir High Court held that by
directing the maintenance of status quo
regarding possession of the subject matter
in the civil suit, the civil court does not
adjudicate either intermily or finally on the
question of possession and such an order by
12 All. Virendra & Ors. Vs. State of U.P. & Ors.
599
itself does not take away the jurisdiction of
criminal law under this section to initiate or
continue with a proceeding, on being
satisfied about the existence of the grounds
for exercising powers under this Section.

19. Similarly, in Neelam Singh vs.
State of U.P., 1999 CriLJ 90, this Court
held that where the civil court has passed
order for status quo only and has not given
any protection about actual physical
possession, proceedings under Section 145
Cr.P.C. are not barred. In Manzooran vs.
State of Punjab, 1988 (1) Crimes 547,
High Court of Punjab and Haryana held
that the order of the civil court must be
respected
even
while
initiating
a
proceeding
under
this
Section.
The
Magistrate
can
very
well
initiate
proceeding under this Section to decide,
which party was in possession. But at the
same time for prevention of breach of
peace it can be sought to proceed under
Section 107 Cr.P.C. and not to attach the
property under Section 146 Cr.P.C., as that
would tend to violate the orders of the civil
court by dispossessing the party, who was
ordered to be left in possession by the order
of maintenance of status quo.

19.

Learned
counsel
for
the
revisionists placed reliance on Balwant
Singh vs. Daulat Singh (1997) 7 SCC 137,
which is reiterated in Jitendra Singh vs.
State of M.P. 2021 SCC OnLine SC 802,
wherein it is held that "this is well settled
position of law that mutation entry does not
confer any right, title or interest in favour
of the person and it is only recorded for the
fiscal purpose." However, in the present
case, it may be added that mutation entry in
favour of the respondent No.3 has been
entered by orders of competent court i.e.
Consolidation Court after long drawn
litigation between the parties.

20. On consideration of above cited
case laws and in the light of statutory
provisions under Section 145 and 146
Cr.P.C., this Court is of the opinion that
although
the
learned
Magistrate
has
observed in impugned order that ad interim
injunction order was passed in favour of the
party, who initiated the proceeding under
Section 145 Cr.P.C. before him and passed
the impugned order to attach the subject
matter of dispute, giving it under the
custody of some impartial custodian till
decision of question of title in possession
by competent court. The same cannot be
sustained as ad interim injunction order is
specifically passed in the civil suit in
favour of the respondent No.3. Learned
Magistrate had not given his satisfaction as
required under Section 145(1) Cr.P.C.
regarding dispute is likely to cause the
breach of peace or state of emergency as
cited under Section 146 (1) Cr.P.C. exists.
Instead of deciding that none of the parties
were then in possession, which prompted
the passing of the impugned order, he has
observed that the opposite parties have
usurped the possession of the entire
disputed plot in violation of civil court's
order, thus impugned order cannot be
countenanced and sustained within the
purview of Sections 145 (1) and 146(1)
Cr.P.C. In view of facts and circumstance
of the case, the order impugned is liable to
be quashed.

21. Accordingly, the revision is
allowed
and
impugned
order
dated
30.3.2013 passed by learned Magistrate in
Complaint Case No. 119/123 (State vs.
Ram Bhawan & others) under Section 145
of Cr.P.C., Police Station- Chowk, District
Maharajganj is set aside in the light of the
discussion made above. However, parties
are relegated to avail remedy before civil
court and it is open to respondent Ram
600 INDIAN LAW REPORTS ALLAHABAD SERIES
Bhawan, who is presently recorded as
tenure holder of the land in dispute that if
he is dispossessed in violation of ad interim
injunction order of civil court, he may
move
appropriate
application
for
enforcement
and
punishment
for
disobedience of that order, before the court
concerned to seek appropriate remedy and
the same will be decided by the learned
civil court in accordance with law after
giving opportunity of hearing to both the
parties. Learned Executive Magistrate will
be within his right to initiate proceeding
under Section 107/151 Cr.P.C., if any of the
party is likely to commit breach of peace or
disturb the public tranquility in view of the
dispute over the land in question.
----------
(2022) 12 ILRA 600
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Crl. Revision No. 2625 of 2021

Kalicharan & Ors. ...Revisionist
Versus
The State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Ashutosh Yadav, Abhilasha Singh, Sri
Nagenda Kumar Singh, Sri Pradeep Kumar, Mrs.
Swati Agrawal Srivastava, Sri S.Lal, Sri Udia
Karan Saxena(Sr. Advocate)

Counsel for the Opp. Parties:
G.A., Sri Sushil Kumar

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 397/401, &319
Cr.P.C. - Indian Penal Code, 1860- Section
302/34-deceased died due to asphyxia-
witnesses statements proved involvement
of
all
three
revisionist
and
also
corroborated
with
the
post-mortem
report-Trial court rightly appreciated the
evidence
and

considering
the
examination-in-chief
came
to
the
conclusion that more than prima facie
case was made out against the revisionistRevisionists have to go through de novo
trial and it will have no effect of the trial
concluded against other accused wherein
they have been acquitted.(Para 1 to 17)

B. While considering the application u/s
319 Cr.P.C. Court of Magistrate has to
make an opinion only on the basis of
evidence produced before Court and he is
not required to look into the material
collected during investigation and has to
make out an opinion/satisfaction that a
prima facie case is to be established from
the evidence led before the Court, not
necessarily tested on the anvil of crossexamination, it requires much stronger
evidence than mere probability of his
complicity as well as the test that has to
be applied is one which is more than
prima facie case as exercised at the time
of framing of charge, but short of
satisfaction
to
an
extent
that
the
evidence, if goes unrebutted, would lead
to conviction.(Para 5 to 15)

The revision is dismissed. (E-6)

List of Cases cited:
1. Hardeep Singh Vs St. of Punj. & ors. (2014) 3
SCC 92

2. Brijendra Singh & ors. Vs St. of Raj. (2017) 7
SCC 706

3. A.T. Mydeen & anr. Vs The Asstt. Commr.
Customs Deptt. (2021) SCC OnLine SC 1017

4. Sugreev Kumar Vs St. of Punj. & anr. (2020)
14 SCC 472

5. Sartaj Singh Vs St. of Har. & anr.(2021) 5
SCC 337

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)