Dismissed

Praveen Kumar v. State of U.P. and 3 Others

Allahabad HC12 Apr 2023A482/9727/2023

Case brief

AI extract

What is this about?

This Court disposed of an application regarding a dispute over the impugned order of the Sub Divisional Magistrate. The Magistrate was directed to decide a pending application filed under Section 145(5) Cr.P.C. within three weeks and allow a supplementary affidavit to record party settlements.

What did the court decide?

The Sub Divisional Magistrate shall decide the pending application dated 09.02.2023 within three weeks. The applicant may file a supplementary affidavit for settlement within ten days.

Praveen Kumar Vs State of U.P. and 3 Others — Property and Title | Allahabad HC (2023)

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Court No. - 64

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Case :- APPLICATION U/S 482 No. - 9727 of 2023

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Applicant :- Praveen Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vishesh Rajvanshi Counsel for Opposite Party :- G.A.,Anil Kumar

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Hon'ble J.J. Munir,J.

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Heard Mr. Vishesh Rajvanshi, learned counsel for the applicant, Mr. Anil Kumar Shukla, learned Counsel appearing for opposite party no. 4 and Mr. D.K. Srivastava, learned AGA appearing on behalf of the State.

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The applicant had earlier challenged the order dated 13.04.2022 passed by the Sub Divisional Magistrate, Khair, District Aligarh ordering attachment of the property in dispute under Section 146(1) Cr.P.C., pending proceedings under Section 145(1) of the Code. The order was passed in Case No. T202218020100926, Ravindra Kumar vs. Praveen Kumar and another. The said order was affirmed by the learned Sessions Judge in Criminal Revision No. 118 of 2022 vide order dated 07.02.2022. The order of the learned Sessions Judge was also put in issue before this Court along with the order dated 13.04.2022 in Application under Section 482 No. 40432 of 2022. By the order dated 28.01.2023 passed by this Court, it was recorded and ordered as follows:

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3. After arguing the matter at some length, learned counsel for the applicant may be permitted to approach the learned Magistrate under Section 145(5) Cr.P.C. This prayer has been made in the context of the pleading that though opposite party no.4 claims right over part of gata no.333, Gram Prempur, Pargana Tappal, Tehsil Kher, District Aligarh, the order passed by learned Magistrate has been made referable to the entire gata no.333 most of which was not in dispute between the parties. Thus, it has been submitted, the parties are seeking settlement outside the Court that may not be obstructed by the impugned order.

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4. In view of such statement, present application stands disposed of with leave to the applicant to apply under Section 145(5) Cr.P.C.. In case such application may be filed within a period of two weeks from today along with a copy of this order, learned Magistrate shall initiate and conclude those proceedings, as expeditiously as possible, preferably within a period of one month from the date of its filing, after hearing necessary

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parties. If cause survives, it may remain open to the applicant to approach this Court, at that stage.

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Now, by an order dated 22.02.2023, the Sub Divisional Magistrate, Khair, Aligarh has proceeded to reject the restoration application dated 17.10.2022, which has been challenged by the applicant on the ground that though the order passed by the Magistrate on 13.04.2022 was affirmed by the learned Sessions Judge in Revision vide order dated 07.09.2022, in view of the orders of this Court dated 28.01.2023, the Sub Divisional Magistrate should have passed orders taking into account the settlement made by parties outside Court. Since the order rejecting the restoration application dated 17.10.2022 was passed by the Sub Divisional Magistrate saying that he could not pass orders on the restoration application because the learned Sessions Judge has already affirmed his order dated 13.04.2022, it was contended that the Magistrate's order is manifestly illegal.

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This Court issued notice to the incumbent Sub Divisional Magistrate, asking him to show cause through his personal affidavit, why appropriate action be not taken against him since he has acted in breach of this Court's order dated 28.01.2023 passed in Application under Section 482 No. 40432 of 2022, falling back on the order of the learned Sessions Judge, which of course, would never stand once this Court had interfered with the same and passed different orders.

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Sanjeev Ojha, Sub Divisional Magistrate, Khair, Aligarh has filed his personal affidavit dated 07.04.2023 and the stand taken there is that what he has decided is a restoration application that was pending before him, prior to this Court's order dated 28.01.2023 passed in Application under Section 482 No. 40432 of 2022. The application under Section 145(5) Cr.P.C. made in compliance with this Court's order dated 28.01.2023 has been moved before the Sub Divisional Magistrate on 09.02.2023 along with an affidavit, later. It was filed on 23.02.2023. It is averred in paragraph no. 9 that in the said application dated 09.02.2023, there is nothing said about a settlement between parties. It is true that on a perusal of the return filed by the Sub Divisional Magistrate, this Court does not find him in breach of our order

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dated 28.01.2023, but only to the extent that by the said order, he has decided the older restoration application. He still appears to be in breach by not deciding the application under Section 145(5) Cr.P.C. within the time granted by this Court vide order dated 28.01.2023. Now, that he has not decided the application so far, the applicant will be at liberty to file a supplementary affidavit in support of the application dated 09.02.2023 bringing on record, within ten days of date any settlement arrived at between parties.

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The Sub Divisional Magistrate shall now proceed to decide the pending application dated 09.02.2023 whether the supplementary affidavit is filed or not within three weeks from today, without fail.

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This application is disposed of in terms of the aforesaid orders.

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Let this order be communicated to the Sub Divisional Magistrate, Khair, District Aligarh through the District Magistrate, Aligarh by the Registrar (Compliance) within 48 hours.

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Order Date :- 12.4.2023 Deepak

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Digitally signed by :- DEEPAK KUMAR PANDEY High Court of Judicature at Allahabad

Praveen Kumar v. State of U.P. and 3 Others

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Praveen Kumar v. State of U.P. and 3 Others

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