MANOJ MISRA, J. - (1.) HEARD learned counsel for the petitioner, Sri S.N.Tripathi, Advocate, for the opposite party No.2 and learned A.G.A for the State.? With the consent of the learned counsel for the parties, the petition is being disposed of? without inviting? any counter affidavit.? By this writ petition, the petitioner has challenged? the order dated 9.8.2012 passed by the Additional? Session Judge, court No.2, Gorakhpur to the extent? that it direct the Executive Magistrate to pass order directing? the S.H.O, Rajghat, Gorakhpur to break open the lock put by? the police or "any other person".
(2.) THE contention of the petitioner is that? proceedings under section 145 Cr.P.C were initiated? in respect to the property concerned. These proceedings were dropped? by order dated? 30.3.2012 passed by the City Magistrate/Executive Magistrate,? in Case No. 7/16/2012, under section 145(1) Cr.P.C,? on the ground that in respect to the? property? concerned, proceedings were? pending? before the? civil court, and that? there were various orders operating in the? civil proceedings.? Against? the order dated 30.3.2012, the opposite party No.2 preferred revision with a claim? that during? the proceeding, under section 145 Cr.P.C, the premises were locked by the police, therefore,? when the proceeding, under section 145 Cr.P.C, have been? dropped,? the lock should be put off.? The court below? being impressed? by the claim? of the opposite party No.2, allowed the revision application and directed the Executive Magistrate to direct? the S.H.O, Rajghat to break? open? the lock put by the police or any other person. Aggrieved by the above direction given by the? court below, the present writ petition has been filed.? It has been contended? on behalf of the? petitioner that? when the proceedings under section 145 Cr.P.C have been dropped, the parties are to be relegated? to the position? in which? they were prior? to the said proceeding and, therefore, the lock put by any other person cannot be removed inasmuch as? that lock was not put in exercise of power under section 145 Cr.P.C or other? ancilliary provision.
(3.) SRI S.N. Tripathi, Advocate, who has put in appearance on behalf of opposite party No.2 makes a statement that the petitioner? himself? had? claimed? that? the lock on the main channel gate? was put by the police, therefore, he cannot challenge? the order? passed by the? court below? to the extent that it directs to? break open the lock. In response to the contention of Sri S.N. Tripathi, learned counsel for the petitioner? pointed out that? in the application? moved? by the petitioner, a claim was made that? the lock was put by the police on the channel gate whereas in the? chalani report submitted? by the police a statement? was to the effect that there? was a lock of the first? party put on the gate. The first? party to the proceedings, as per the chalani report, is Pashupati Nath Gupta, who is the petitioner herein.;