Dismissed

Nanhelal Kashyap v. State of U.P. and 3 Ors.

Allahabad HC3 May 2018A227/1546/2018

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the High Court dismissed the appellant's challenge to the City Magistrate's rejection of his Section 145 application. The Magistrate had refused jurisdiction due to a pending civil suit and the appellant's status as a dispute-ridden society treasurer. The Court held the order was not infirm. Disposition: dismissed.

What did the court decide?

The writ petition seeking to stay the orders of the City Magistrate and Sessions Judge was dismissed as it lacked merit.

Nanhelal Kashyap Vs State of U.P. and 3 Ors. — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 49

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Case :- MATTERS UNDER ARTICLE 227 No. - 1546 of 2018

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Petitioner :- Nanhelal Kashyap Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Vikrant Pandey,Sanjeev Kumar Pandey Counsel for Respondent :- G.A.,Pankaj Srivastava

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Hon'ble Saumitra Dayal Singh,J.

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Heard learned counsel for the applicant and learned A.G.A. for the State.

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The present petition has been filed to seeking mandamus to stay the effect and operation of the order dated 07.03.2018 passed by the learned Sessions Judge, District- Badaun dismissing the revision of the petitioner as well as the order dated 31.10.2017 passed by the City Magistrate, Badaun, under Section 145 Cr.P.C., rejecting the complaint of the petitioner.

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By order dated 31.10.2017, the learned City Magistrate rejected the petitioner's application filed under Section 145 Cr.P.C. on the solitary reasoning that with respect to the property in question, a civil suit no. 326 of 2014 was pending between the parties.

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With respect to the above suit, learned counsel for the petitioner submits that there is no injunction order of any kind operating in that civil suit. He therefore submits per se proceedings under Section 145 Cr.P.C. were not barred.

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Then, upon revision filed by the petitioner against the order dated 31.10.2017, the revisional court has rejected the petitioner's revision on the reasoning that the petitioner is not the owner of the property in question.

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With respect to the findings recorded by the revisional court, it is submitted that issue of ownership is not relevant for the proceedings under Section 145 Cr.P.C. which has to be decided on the basis of possession.

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While, the aforesaid submission may be correct, however, the revisional court has not concluded its finding on that issue alone. It has further recorded the finding that the petitioner had only claimed himself to be the duly elected treasurer of the society namely Arya Samaj, Badaun. It has thus concluded that the petitioner being an office bearer he could not claim possession over the property of the society.

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Then, it has been further recorded that there are certain dispute

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with regard to the society Arya Samaj, Badaun which appear to be pending before Registrar Firms, Societies and Chits, Lucknow.

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Even on that basis, the learned Court below has observed, possession over the property in question cannot be cliamed. Dispute, if any, was with regard to the elections of the society.

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In view of the above discussion made before the learned Court below, it has then observed that the claim made by the petitioner that he was in possession over the property in question by virtue of being treasurer of the society, cannot be accepted.

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Merely, because the police report has been made stating certain facts, it cannot restrict or limit the exercise of jurisdiction under Section 145 Cr.P.C. to the extent of facts stated therein. The S.D.M. may record findings contrary to the facts recorded by the police, especially in view of facts stated and evidence adduced by the parties interested in the property.

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It appears, the property is undisputedly property of the society of which the applicant claims to have been an office bearer for some time and with whom he has a dispute as to continuance in office.

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In view of such facts, the order dated 31.10.2017 passed by the City Magistrate, Badaun does not suffer from any infirmity. The present petition lacks merit and is accordingly dismissed .

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Order Date :- 3.5.2018 A. Singh

Nanhelal Kashyap v. State of U.P. and 3 Ors.

Case brief

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Nanhelal Kashyap v. State of U.P. and 3 Ors.

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