Remanded

Mobian Ali v. State of U.P. and 2 Others

Allahabad HC9 Apr 2018A227/2174/2018

Case brief

AI extract

What is this about?

Petitioner sought certiorari to quash orders dropping Section 145 Cr.P.C. proceedings due to pending civil suit. Court held that absence of injunction does not bar proceedings and remitted matter to Sub-Divisional Magistrate.

What did the court decide?

Orders of Sub-Divisional Magistrate and Sessions Judge quashing Section 145 Cr.P.C. proceedings set aside; matter remitted to Sub-Divisional Magistrate to decide afresh.

Mobian Ali Vs State of U.P. and 2 Others — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 49

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Case :- MATTERS UNDER ARTICLE 227 No. - 2174 of 2018

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Petitioner :- Mobian Ali Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Manoj Kumar Gupta Counsel for Respondent :- G.A.

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Hon'ble Saumitra Dayal Singh,J.

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Heard learned counsel for the petitioner, learned AGA for the State as also perused the record.

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By means of this petition, the petitioner seeks a writ in the nature of certiorari quashing the impugned orders dated 17.03.2016 and 04.01.2018 passed by the Sub-Divisional Magistrate, Jalalabad, District Shahjahanpur and the Additional Sessions Judge/FTC-13, Shahjahanpur respectively.

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Learned counsel for the applicant submits that on one hand, in the police report the claim and counter claim raised by the applicant and opposite party no. 2 had been mentioned and it has also been stated that there was apprehension of breach of peace, however, the learned Magistrate had wrongly dropped the proceedings on the reasoning that there was a civil suit pending between the parties and therefore, the parties may apply to the civil court for appropriate relief.

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Being aggrieved, the applicant had filed a revision before the Session Judge, Shahajahanpur. By the impugned order, the learned Sessions Judge has also rejected the revision filed by the applicant.

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In the impugned order, it has been observed that in cases where an injunction order may have been passed by the civil court proceedings under Section 145 C.P.C. cannot be initiated. At the same time it has also been noted that mere pendency of the civil suit without any injunction order being granted would not bar the proceeding under Section 145 Cr.P.C.

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After taking note of the aforesaid correct position of law, learned revisional court had dismissed the revision filed by the present applicant though there is no injunction order operating in the present case.

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Learned counsel for the applicant submits that there was no injunction order operating in the present case and therefore, the proceeding under Section 145 Cr.P.C. were maintainable.

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The aforesaid submission appears to be correct, inasmuch as there is no recital of any injunction order either in the order passed by the learned Magistrate or in the order passed by the revisional court.

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Thereafter, the learned revisional court has rejected the revision on the reasoning that no prejudice has been caused by either party. Such a reasoning appears to be incorrect as Section 145 Cr.P.C. exists to ensure that there is no breach of peace in such cases. In fact, in his order, the learned Magistrate had himself, on 17.03.2016, after dropping the proceeding directed the police authorities ensure that there is no breach of peace with respect to the property in dispute between the parties.

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In view of the above, the order passed by the learned SubDivisional Magistrate, Jalalabad, Shahjahanpur dated 17.03.2016 and the order dated 04.01.2018 passed by the Additional Sessions Judge/FTC-13, Shahjahanpur are not sustainable.

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No useful purpose would be served in keeping the present proceeding pending any further in view of the order proposed to be passed.

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The order dated 17.02.2016 passed by the Sub-Divisional Magistrate, Jalalabad, Shahajahnpur is set aside and the matter is remitted to the learned Sub-Divisional Magistrate, Jalalabad, Shahajahnpur to decide the matter afresh in accordance with law, after affording adequate opportunity of hearing to both the parties.

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The petition is disposed of .

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Order Date :- 9.4.2018 Lbm/-

Mobian Ali v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Mobian Ali v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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