Dismissed

Javed and 2 Others v. State of U.P. and 3 Others

Allahabad HC15 May 2018CRLP/10708/2015

Case brief

AI extract

What is this about?

The High Court dismissed the criminal miscellaneous writ petition seeking to quash the Sub Divisional Magistrate's order attaching disputed property under Section 146 Cr.P.C., holding that no hearing is required for such emergency orders and the dismissal of revision for non-maintainability was correct.

What did the court decide?

Writ petition dismissed; ordered magistrate to decide withdrawal application within 60 days.

Javed and 2 Others Vs State of U.P. and 3… — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 28

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Case :- CRIMINAL MISC. WRIT PETITION No. - 10708 of 2015

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Petitioner :- Javed And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kamal Kumar Singh Counsel for Respondent :- Govt.Advocate,Gyanendra Prakash Srivast,Kamlesh Shrama,Naveen Srivastava

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Hon'ble Umesh Chandra Tripathi,J.

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1 . Heard learned counsels for the parties.

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2. This criminal misc., writ petition has been filed with prayer to issue writ, order or direction in the nature of certiorari quashing the order dated 23.4.2015 passed by Sessions Judge, Mau in Criminal Revision No. Nil/2015 dismissing the revision against the order dated 15.4.2015 passed by the Sub Divisional Magistrate, Mohammadabad Gohna, Mau under Section 146 Cr.P.C. By the order dated 15.4.2015, the subject matter of dispute was attached on the basis of report of Station Officer, Ranipur, District Mau dated 7.1.2015. In the report dated 7.1.2015, it is narrated that there is likelihood of breach of peace with regard to the subject matter of dispute. The revisional court has dismissed the revision as not maintainable.

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3 . Learned counsel for the petitioners contended that order dated 15.4.2015 passed by the Sub Divisional Magistrate, Mohammadabad Gohna, Mau under Section 146 Cr.P.C., was passed without affording opportunity of hearing to the petitioners. He has placed reliance upon the judgment of this Court in the case of Munna Singh @ Shivaji Singh and others Vs. State of U.P. and another, 2011 (75) ACC 797 and contended that against the order passed by the Magistrate under Section 146 Cr.P.C., revision is maintainable. He further contended that civil suit is pending in reference to property in dispute and proceedings under Sections 145 and 146 Cr.P.C., is not maintainable. Even though, learned Magistrate passed the impugned order without considering these facts,

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which is against law and the same is liable to be set aside.

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4. Learned counsel for the opposite party as well as learned A.G.A., for the State contended that there is no any illegality in the impugned order passed by the learned courts below. They further contended that in all the facts and circumstances, it can't be said that the order passed by the learned Magistrate under Section 146 Cr.P.C., is revisable, it depends on the facts of each and every case whether order passed by the Magistrate under Section 146 Cr.P.C., is revisable or not. In the facts and circumstances of the present case, order dated 15.4.2015 passed by the Sub Divisional Magistrate, Mohammadabad Gohna, Mau under Section 146 Cr.P.C., is not a revisable order.

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5. The provision of Section 146 (1) Cr.P.C., reads as under:-

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"(1) If the Magistrate at any time after making the order under subsection (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."

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6. There is no any provision in Section 146 (1) Cr.P.C., to afford opportunity of hearing to the parties. The order under Section 146 (1) Cr.P.C., is passed in case of emergent situation.

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7 . As per proviso of Section 146 (1) Cr.P.C., learned Magistrate may withdraw attachment at any time on being satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. Accordingly, petitioners or opposite party has opportunity to apply before Magistrate concerned to withdraw the order of attachment.

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8. Petitioners may raise their plea before Magistrate that proceedings under Sections 145 and 146 Cr.P.C., are not maintainable as civil suit is

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pending between the parties in reference to subject of dispute. This plea cannot be raised at this stage in the writ petition. Although, by the order dated 23.4.2015 revision was dismissed as not maintainable. Even though the order dated 15.4.2015 passed by the Sub Divisional Magistrate, Mohammadabad Gohna, Mau is based on evidence. I find no illegality or infirmity in the impugned order passed by the Magistrate under Section 146 (1) Cr.P.C. Moreover, petitioners have opportunity under proviso to Section 146 (1) Cr.P.C., to apply for withdrawal of the order of attachment.

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9. Accordingly, this writ petition is dismissed .

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10 . However, it is provided that if the petitioners apply for withdrawal of order of attachment under proviso to Section 146 Cr.P.C., that application shall be decided by the concerned Sub Divisional Magistrate without being influenced by the order of this Court in accordance with law within a period sixty days from the date of production of a certified copy of this order.

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Order Date :- 15.5.2018 Jaswant

Javed and 2 Others v. State of U.P. and 3 Others

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Javed and 2 Others v. State of U.P. and 3 Others

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