Decided on March 27,2012

State Of Uttarakhand, Smt. Mona Sharma And Narendra Kumar Respondents


Prafulla C. Pant, J. - (1.) HEARD . By means this petition moved under Section 482 of Cr.P.C., the petitioner has sought quashing of the order dated 25.11.2009, passed by Sub Divisional Magistrate, Haridwar, in Case No. 06 of 2009, State Vs. Mona Sharma, Police Station -Pathri, whereby said court has directed attachment of the property by issuing order under Section 146(1) of Cr.P.C. The petitioner has further challenged the order dated 23.10.2010, passed by Additional Sessions Judge/1st Fast Track Court, Haridwar, in Criminal Revision No. 09 of 2010, affirming the order passed by the Magistrate.
(2.) BRIEF facts of the case are that Plot No. 181 situated in Village -Subhashgarh, was initially entered in the name of the husband of Mona Sharma (respondent No. 2), but later entry in favour of the petitioner Ashok Kumar was made, due to which, a dispute arose, as to the possession of the said plot. The Police submitted report dated 01.10.2009, before the Sub Divisional Magistrate, Haridwar, apprehending breach of peace, and requesting for proceedings under Section 145 of Cr.P.C. It appears that the Sub Divisional Magistrate, Haridwar, on said report issued notices to the rival parties and got satisfied as to the apprehension of breach of peace. Accordingly, vide his impugned order dated 25.11.2009, he passed an interim order under Section 146 (1) of Cr.P.C., directing attachment of the property i.e. land of Khasra No. 181 measuring about 0.400 hectares in Village Subhashgarh. Aggrieved by said order, the present petitioner filed Criminal Revision No. 09 of 2010, before the revisional court, which was decided after hearing the parties by Additional Sessions Judge/1st Fast Track Court, Haridwar, vide his order dated 23.10.2010, affirming the order of the Magistrate. Learned counsel for the petitioner submitted that it is settled principle of law that where the competent civil court is seized of the matter, the Magistrate should not proceed under Section 145 of Cr.P.C. Reliance is placed on behalf of the petitioner in the case of Ram Sumer Puri Mahant Vs. State of U.P. and Others : (1985) 1 SCC, 427, Amresh Tiwari Vs. Lalta Prasad Dubey, another : (2000) 4 SCC 440 and Kunjbihari Vs. Balram and another, (2006) 11 SCC, 66.
(3.) I have gone through the aforesaid case laws and found that the same are of no help to the petitioner in the present case. From the impugned order dated 25.09.2009, passed by Sub Divisional Magistrate, Haridwar, it nowhere reflects that it has agitated before the said authority that any civil suit was pending. The Magistrate has to get satisfied on the basis of the record before it. Of course, it appears that at the revisional stage, the present petitioner raised the issue that the civil suit was pending and the power under Section 145 of Cr.P.C., should not have been exercised.;

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