Dismissed

Jai Narayan Yadav v. State of U.P. and 2 Others

Allahabad HC23 May 2018CRLR/3348/2013

Case brief

AI extract

What is this about?

In this criminal revision, the High Court dismissed the challenge to the attachment of disputed property but directed the Magistrate to determine possession under Section 145(6) Cr.P.C. within three months and to act on an application for withdrawal of attachment based on pleadings.

What did the court decide?

Directs Magistrate to decide possession under Section 145(6) Cr.P.C. within three months and to pass reasoned order on withdrawal of attachment within thirty days.

Jai Narayan Yadav Vs State of U.P. and 2 Others — Property and Title | Allahabad HC (2018)

¶1

Court No. - 28

¶2

Case :- CRIMINAL REVISION No. - 3348 of 2013

¶3

Revisionist :- Jai Narayan Yadav Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- S.S. Shukla Counsel for Opposite Party :- Govt. Advocate,Ganesh Mani,Ganesh Mani Tripathi

¶4

Hon'ble Umesh Chandra Tripathi,J.

¶5

Heard learned counsel for parties.

¶6

This revision has been preferred against the order dated 23.10.2013 passed by Additional City Magistrate (II), Kanpur Nagar in Case No. 7 of 2013 (Smt. Neelam and Another v. Om Prakash Nagpal and Another), whereby the subject matter of dispute was attached under Section 146 (1) of the Code of Criminal Procedure (in short 'Cr.P.C.').

¶7

Learned counsel for the revisionist, relying on the judgment of Hon'ble Apex Court in Ashok Kumar v. State of Uttarakhand & Ors. reported in 2013(3) JIC 309 (SC) contended that if one of the parties is in possession of subject matter of dispute, then on mere ground of apprehension of breach of peace, the subject matter of dispute cannot be attached under Section 146 (1) Cr.P.C. He further contended that in her application filed under Section 145 of Cr.P.C., opposite party no. 2 - Smt. Nilam admitted this fact that the revisionist Jai Narayan Yadav is in possession of subject matter of dispute. He further contended that in application under Section 145 (6) of Cr.P.C., learned Magistrate had not decided the possession of the parties till now. He further contended that opposite party nos. 2 and 3 - Smt. Nilam and Umesh have filed Original Suit No. 2336 of 2012 (Smt. Nilam and others v. Om Prakash and Another) before Civil Judge (Senior Division), Kanpur Nagar. In that plaint, they have admitted the possession of the revisionist on the disputed plot. Accordingly, the impugned order passed by learned Magistrate is liable to be set aside.

¶8

Learned counsel for private-opposite parties contended that the subject matter of dispute belongs their mother and they are in possession of subject matter of dispute. There is no illegality or infirmity in the impugned order passed by learned Magistrate.

¶9

Perused the impugned order dated 23.10.2013. From its perusal, it is revealed that learned Magistrate has not considered the pleadings of opposite party nos. 2 and 3 - Smt. Nilam and

¶10

Umesh in application under Section 145 of Cr.P.C. and the pleadings of O.S. No. 2336 of 2012 (plaint) and has passed the impugned order on the basis of apprehension of breach of peace.

¶11

As per proviso of Section 146 (1) of Cr.P.C., Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer likelihood of breach of peace with regard to subject matter of dispute.

¶12

At this stage, in exercise of jurisdiction of revision, it would not be appropriate for this Court to discuss the document which is not mentioned in the order of the revisional court. Learned Magistrate has passed the impugned order on the basis of police report. Remedy is available to the revisionist to apply for recall of the impugned order of attachment.

¶13

In view of above, the instant revision is dismissed .

¶14

However, learned Magistrate is directed to decide the entitlement of possession of party on subject matter of dispute under Section 145 (6) of Cr.P.C. within 3 months from the date of receipt of certified copy of this order.

¶15

If the revisionist files application as per proviso of Section 146 (1) of Cr.P.C. for withdrawal of order of attachment, learned Magistrate shall pass a reasoned and speaking order within 30 days from the date of presentation of such application by the revisionist, on the basis of pleadings made by opposite party no. 2 - Smt. Nilam in proceedings under Section 145 of Cr.P.C. and the pleadings/plaint of O.S. No. 2336 of 2012.

¶16

Let a copy of this order be certified to the court below for the purposes of intimation and necessary compliance.

¶17

Order Date :- 23.5.2018 I. Batabyal

Jai Narayan Yadav v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Jai Narayan Yadav v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Gul Mohammad and Another Vs State of U.P. and Another

Devanand Gupta Vs State of U.P. and 3 Others

Dr. Naresh Agrawal Vs State of U.P. and Anr.

Chhotu Alias Sushil Kumar Minor Vs State of U.P. and Another

Mehrajuddin Vs State of U.P. and 11 Others

Shafaqat Begh Vs State of U.P. and Another