Petitioner challenged a revisional court order remanding a property dispute under Cr.P.C. Sections 145 and 146. The High Court found no illegality in the lower court's decision and dismissed the writ petition.
The writ petition was dismissed.
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Neutral Citation No. - 2023:AHC:160262
Court No. - 80
Case :- CRIMINAL MISC. WRIT PETITION No. - 5474 of 2023
Petitioner :- Diwakar Mishra Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :- Amit Kumar Singh,Ajay Kumar Mishra Counsel for Respondent :- G.A.,Kushmondeya Shahi
Hon'ble Subhash Chandra Sharma,J.
Counter affidavit filed by learned counsel for the respondents is taken on record.
Heard learned counsel for the petitioner, learned counsel for the respondents as well as learned A.G.A. for the State and perused the material on record.
This writ petition has been filed for the following reliefs:
(i) To, issue writ order or direction in the nature of certiorari quashing the impugned order dated 16.03.2023 passed by Additional Sessions Judge/ Special Judge (E.C. Act) Court No. 4 Deoria in Criminal Revision No. 23/ 2019 under Section 397 of Cr.P.C., Police Station Bhaluwani, District Deoria.
(ii) To, issue writ order or direction in the nature of mandamus commanding the respondents to maintain the status quo over the disputed land.
It is submitted by learned counsel for the petitioner that in this case a chalani report was filed by the police before the learned S.D.M. regarding dispute related to immovable property and the possibility of breach of peace on the basis of which proceedings under Section 145(1) Cr.P.C. were initiated on 19.07.2008. Later on 21.07.2008 order under Section 146(1) Cr.P.C. was also passed for attachment of property in dispute. Both these orders were challenged before the revisional court but on the ground of maintainability the revision was dismissed, as a result a petition was filed before this Court in which the revision was held to be maintainable by order dated 17.12.2018 in criminal miscellaneous writ petition No. 22793 of 2010 in pursuance to which the learned revisional court by order dated 16.03.2023, set aside the order passed by learned S.D.M. under Section 145(1) Cr.P.C. and 146(1) Cr.P.C. and remanded back the matter to the learned court of S.D.M. for passing the order afresh, against which he has preferred this writ petition before this Court. Further it is submitted that the learned revisional court has passed the order dated 16.03.2023 illegally and remanded the matter back to learned S.D.M. to decide afresh after giving an opportunity of hearing to both the parties. It is also submitted that there was possibility of breach of peace relating to the dispute regarding immovable property and keeping this fact in consideration the
learned S.D.M. passed the order under Section 145(1) Cr.P.C. and later on keeping in view the emergent situation passed the order under Section 146(1) Cr.P.C. on 21.07.2008. Learned revisional court did not consider all these facts while passing the order in question but remanded the matter back illegally without considering the provisions of law, therefore, the order passed by the learned revisional court being illegal, is likely to be set aside and this writ petition is to be allowed.
Learned counsel for the respondents as well as learned A.G.A. for the State opposed the prayer as aforesaid and contended that in this case the learned revisional court considered the facts and circumstances of the case and the material on record in entirety. It is also contended that the order under Section 146(1) Cr.P.C. passed by learned S.D.M. was against the provisions as contained under Section 146(1) Cr.P.C. No satisfaction regarding emergent situation as required under the law was recorded by him in the order in question. It is also contended that a writ petition was also filed before this High Court as Writ B 28889 of 1995 in which order for status quo was passed regarding possession of the property in dispute by order dated 21.10.1995 even though the proceeding under Section 145 (1) Cr.P.C. were initiated by the learned Magistrate while ignoring the law as held by the Hon'ble Supreme Court in the case of Ram Sumer Puri Mahant A.I.R. 1985 SCC 472 and Amresh Tiwari Vs. Lalta Prasad Dubey A.I.R. 2000 SC 1504 in which it was held that during the pendency of civil proceedings, proceedings under Section 145 Cr.P.C. cannot be taken recourse of, as a result, the order passed by learned S.D.M. under Section 145(1) was also set aside and the matter was remanded back for deciding the matter afresh after giving an opportunity of hearing to both the parties. In this way, there is no any illegality in the order passed by the revisional court but this writ petition is liable to be dismissed.
On considering the facts and circumstances of the case, submissions made by learned counsel for both the parties as well as learned A.G.A., perusal of record, and the orders passed by learned S.D.M. on 19.07.2008 and 21.07.2008 and the learned revisional Court dated 16.03.2023 there appears no any illegality or impropriety in the order passed by the learned revisional court but this writ petition being devoid of merit is likely to be dismissed .
Order Date :- 9.8.2023 Suraj Srivastav
Digitally signed by :- SURAJ SRIVASTAVA High Court of Judicature at Allahabad
2 issues framed by the court
Whether the order passed by the revisional court remanding the matter under Sections 145(1) and 146(1) Cr.P.C. involves any illegality or impropriety.
Whether the writ petition challenging the revisional court's order is devoid of merit.
Colour shows how this judgement treated each authority
Ram Sumer Puri MahantReferred¶13
Ram Sumer Puri Mahant A.I.R. 1985 SCC 472 · Who else cites this
Amresh Tiwari Vs. Lalta Prasad DubeyReferred¶13
Amresh Tiwari Vs. Lalta Prasad Dubey A.I.R. 2000 SC 1504 · Who else cites this
3 provisions across 1 enactments
Diwakar Mishra
State Of U.P.
Subhash Chandra Sharma
Suraj Srivastav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
