Ram Ji Maurya @ Ram Ji Lal Maurya and Another vs State of U.P. Thru. Its Addl. Chief Secy. Home Lko. and Another

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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MATTERS UNDER ARTICLE 227 No. - 5611 of 2024

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Ram Ji Maurya @ Ram Ji Lal Maurya And Another

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.....Petitioner(s)

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Versus

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State Of U.P. Thru. Its Addl. Chief Secy. Home Lko. And Another .....Respondent(s) Counsel for Petitioner(s) : Rajesh Kumar, Amitabh Pratap Singh Counsel for Respondent(s) : G.A.

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Court No. - 14

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HON'BLE SUBHASH VIDYARTHI, J.

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Heard Sri Amitabh Pratap Singh, the learned counsel for the petitioners, Sri Jai Prakash, the learned Additional Government Advocate appearing on behalf of the State and perused the records.

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By means of the instant petition filed under Article 227 of the Constitution of India the petitioners have challenged the validity of two orders dated 07.10.2021, passed by the Sub Divisional Magistrate Kaiserganj, District Bahraich in Case No.7157 of 2021, under Section 145 Cr.P.C. copies whereof have been annexed as Annexure Nos.2 and 3 to the petition. The petitioners had challenged the aforesaid orders by filing a Criminal Revision No.84 of 2021 which has been dismissed by means of a judgment and order dated 16.10.2024, passed by learned Additional Sessions Judge, FTC-II, Bahraich and the validity of the said order has also been challenged through this petition.

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Previously, the petitioners had challenged the impugned orders by filing Criminal Misc. Writ Petition No.8515 of 2021, which was dismissed as withdrawn by means of an order dated 12.11.2024 granting liberty to the petitioners to file a fresh petition in accordance with law and the present petition has been filed under the aforesaid liberty granted by this court.

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The first order passed by the Sub Divisional Magistrate on

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A227 No. 5611 of 2024

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07.10.2021 (Annexure No.2 to the petition) states that the proceedings under Section 145 Cr.P.C. were instituted on the basis of a report dated 25.07.2021 submitted by the Station House Officer Jarwal Road, Bahraich stating that there is a dispute between the parties regarding shop and house due to which there is an apprehension of breach of peace. The Sub Divisional Magistrate has directed the parties to appear on 22.10.2021 at 10.00 a.m. and place their version/evidence in respect of their respective claims. However, after passing of the aforesaid order on 07.10.2021 itself the Sub Divisional Magistrate passed another order stating that submissions of learned counsel for the parties were heard on previous date. The first party Kamini Devi (the opposite party no.2 to the instant petition) submitted an application under Section 146(1) Cr.P.C. requesting that the house and shop in dispute be attached and given in custody of some independent person.

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The learned counsel for the petitioners has submitted that a regular civil suit was pending between the parties regarding the matter in question and therefore the proceedings under Section 145 Cr.PC. cannot go on.

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The Sub Divisional Magistrate has rejected this contention by holding that proceedings under Section 145 Cr.p.C. had been initiated prior to institution of the civil suit. He stated that the matter was emergent and he ordered attachment of the house and the shop under Section 146 (1) Cr.P.c.

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Criminal Revision No.84 of 2021 filed against the aforesaid orders has been dismissed by means of a judgment and order dated 16.10.2024 holding that the Sub Divisional Magistrate has passed the order in exercise of jurisdiction conferred upon him and there was no ground to interfere in the order.

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A copy of pliant filed by the opposite party no.2 as Regular Suit No.1201 of 2021 in the court of learned Civil Judge, Junior Division, Kaiserganj, Bahraich has been annexed with the petition in which the opposite party no.2 has claimed a decree of cancellation of will dated 18.02.2021 executed by her father Sahajram Maurya in favour of the petitioners and the opposite party no.2, which will is registered in

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A227 No. 5611 of 2024

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3

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Book No.3, Vol.254 of Pages 147 to 166 at Serial No.69 on 02.03.2021 in the office of Sub Registrar Kaiserganj, Bahraich. She has not sought any decree of injunction against the petitioners.

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On 27.11.2024 a coordinate Bench of this court had passed an order staying the proceedings initiated.

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The Sub Divisional Magistrate Kaiserganj Bahraich has filed his personal affidavit restating the aforesaid facts which are already stated in the petition. It has further been stated in the counter affidavit that the petitioners had filed an application for recall/modification of the order dated 07.10.2021 which was pending consideration at the time of filing of the counter affidavit.

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There is absolutely no averment in the counter affidavit giving any explanation as to when in the preliminary order passed on 07.10.2021, the Sub Divisional Magistrate had directed the parties to place their version in writing and submit evidence on 22.10.2021, why the final order was passed on the same day without letting the parties avail the opportunity to lead evidence as per the preliminary order dated 07.10.2021.

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The opposite party no.2 has not filed any counter affidavit, although the office has reported on 13.01.2025 that service of notice issued to the opposite party no.2 is deemed sufficient.

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From the aforesaid facts, it appears that the impugned order has been passed on 07.10.2021 without letting the parties avail the opportunity to lead evidence given by the preliminary order dated 07.10.2021, a copy of which has been filed as Annexure No.2 to the petition, which vitiates the final order dated 07.10.2021, a copy of which has been filed as Annexure No.3 to the petition.

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Accordingly, the petition is allowed . The impugned orders dated 07.10.2021, passed by the Sub Divisional Magistrate Kaiserganj, District Bahraich in Case No.7157 of 2021, under Section 145 Cr.P.C. (Annexure Nos.2 and 3 to the petition) and the judgment and order dated 16.10.2024, Criminal Revision No.84 of 2021, passed by learned Additional Sessions Judge, FTC-II, Bahraich (Annexure No.1 to the petition) are hereby set aside. The matter is remanded to the

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A227 No. 5611 of 2024

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Sub Divisional Magistrate Kaiserganj, District Bahraich for being decided afresh after the parties are given reasonable opportunity of adducing evidence in furtherance of the preliminary order dated 07.10.2021 and pass an order in accordance with law.

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April 8, 2026 Ram.

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(Subhash Vidyarthi,J.)

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Digitally signed by :- RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench

Ram Ji Maurya @ Ram Ji Lal Maurya and Another v. State of U.P. Thru. Its Addl. Chief Secy. Home Lko. and Another

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