- (1.) Heard counsel for the petitioner.
(2.) The petitioner aggrieved by order dated 26.8.2015 passed by the Additional District and Sessions Judge, Court no.1, Ghazipur in Criminal Revision no.200 of 2014 has approached this Court challenging its validity. By the said order, the revisional court has set aside the order of attachment dated 6.6.2014 passed by the Sub Divisional Magistrate under section 146(1), Cr.P.C. in case no. 24 of 2013. The revisional court has held that from the material on record, it is evident that the dispute between the parties relate to the land of which, they are joint tenure holders. The revisional court has referred to the police report paper no. 4-A, wherein, it is mentioned that the land in dispute is being cultivated by the second party to the proceedings, namely, the third respondent herein. The petitioner was trying to take possession of his share, which had given rise to apprehension of breach of peace. In the opinion of the revisional court, once possession of second party is admitted in the police report, it was not within the purview of the learned Magistrate to initiate proceedings under section 145 Cr.P.C. or to pass order of attachment. For coming to such conclusion, the revisional court has placed reliance on decision of Supreme Court in case of Ashok Kumar v. State of Uttarakhand, 2013 80 AllCriC 599, and of this Court in case of Gopal and others v. State of U.P. and others,2001 43 AllCriC 496 wherein it is held as under :- "Proceeding under Section 145, Cr.P.C. do not contemplate cases of joint property or joint holding or joint possession. In case of joint property proceeding under Section 145, Cr.P.C. can be drawn only where a co-owner claims his actual possession over a specified portion of joint property to the exclusion of other co-tenure holders. The Magistrate had no power or jurisdiction to put the parties in possession as per their shares in the disputed property."
(3.) It is not disputed by learned counsel for the petitioner that the parties are co-tenure holders of the land in question. However, it is submitted by learned counsel for the petitioner that the petitioner was in exclusive possession of the land and thus, the aforesaid decision in the case of Gopal and others would not apply to the facts of the case. It is further submitted that the learned Magistrate in proceedings under section 145 Cr.P.C. is competent to put a party back in possession, in exercise of power conferred by sub section (6). It is thus urged that even if the petitioner had been dispossessed, the learned Magistrate was competent to restore the possession of the petitioner.;