- (1.) R. N. Ray, J. Heard learned counsel for the applicant and the learned counsel for the opposite parties at length and also perused the records, affidavit and its annexure.
(2.) AS per contention of the applicant who is the daughter of late N. C. Upadhyaya, Ex. Advocate General of U. P. and the opposite parties Nos. 7 and 8 are the mother and sister of the applicant. AS per her contention (applicant) the entire Bungalow No. 11-B Bank road alias Lala Ram Narain Lal Road, Allahabad, is a self-acquired property of Late Sri N. G. Upadhyaya. It is submitted that Late Sri N. C. Upadhyaya had executed a will on 2-12-1985 in respect of the propertied situated at Allahabad, Agra and Lucknow and by the will dated 2-12-1985 the said Upadhyaya had bequeathed his Bungalow No. 11- B, Bank Raod alias Lala Ram Narain Lal Road, Allahabad, to the petitioner, Smt. Sadhana Upadhyaya and the respondent 8 had been accommodated at Agra and the respondent No. 7 had been blessed in many ways. The will has been withheld by respondents 7 and 8. However, the petitioner has obtained photo copy of the said will and has filed application for granting probate which is still pending for decision and the same has bean conceited by opposite parties 7 and 8. AS per the contention of the petitioner, since the life-time of her father, she has been an advocate and she has been in exclusive possession of one room the eastern side of the ground floor of Bungalow No. 11-B, Bank Road, Lala Ram Narain Lal Road, Allahabad and since after her marriage she has been living with her husband, Sri Sant Saran Sharma, Advocate and she is also in exclusive possession of the first floor of the said Bungalow. The Chamber of the then Advocate General, U. P. is being used by the petitioner since the life-time of her father and as such this petitioner continued to be in possession of the first floor and the Cnamber/room of the ground floor along with the fittings and furniture and law books etc. It has been contended that as this petitioner has married to a person of her own choice which has been disliked by respondents 1 and 8 and on the advice of ill-persons and with ill-motive, this petitioner' and her husband have been illegally dispossessed from that chamber/room of the ground floor of the Bungalow No. 11-B, Bank Road alias Lala Ram Narain Lal Road, Allahabad and they have also forcibly taken away the law books and other materials which exclusively belonged to Smt. Sadhana Upadhyaya which were not the properties of Late Sri N. C. Upadhyaya when she was at the advanced stage of pregnancy she was admitted to a local nursing home during the absence of the applicant the respondents 7 and 8 with the help of some anti- social elements took forceful and illegal possession of the chamber room of the ground floor and also took away the law-books and other belongings to the petitioner which were in that chamber/room. It has been submitted that after taking advantage of helplessness of the petitioner during her stay in the nursing home and as her husband was extremely busy in to look after the petitioner and the new-born baby and also for the professional work of this Hon'ble High Court the respondents 7 and 8 were ill- advised by some bad elements to take law in their hands and the same resulted in an incident dated 19- 9-1995 during which period the locks of petitioner's chamber/room were broken and the said respondents 7 and 8 with their associates forcibly removed the petitioner's library, almirah and other costly belongings including telephones and even files of the clients of the petitioner and her husband worth several lacs. After the delivery of the male child by the petitioner, when she was discharged from the nursing home, she came back to her residence and found that she has been dispossessed from the chamber/room of the ground floor along with her belongings kept inside the chamber/room which included the law books and other costly articles which are essential for a practicing advocate. Petitioner is also a member of the High Court Bar ASsociation, Allahabad. Respondent No. 8 is almost illiterate and as such she in no way need to use the chamber/room as law-chamber/room of late N. C. Upadhyaya which was jointly being used by the applicant along with her father during his life-time and after the death of N. C. Upadhyaya that chamber/room had been exclusively owned by the petitioner in terms of the provisions of will of late Sri N. C. Upadhyaya, the then Advocate General, U. P. The opposite parties 7 and 8 have filed civil suit being No. 704/95 Smt. Kusum Upadhyaya v. Smt. Sadhana Upadhyaya (supra), in the court of the Civil Judge, Allahabad, for eviction of the petitioner from the first floor on the assertion that she was a mere licencee and her licence had been revoked and that suit is pending. It is the further contention of the applicant/petitioner that respondent No. 7 and 8 in collusion with some anti-social elements have manufactured a fake will alleged to had been executed by late N. C. Upadhyaya relating to the property of Late Sri N. C. Upadhyaya including the entire premises being Bungalow No. 11-B, Bank Road alias Lala Ram Narain Road, Allahabad. After coming back from the Nursing Home, the applicant/petitioner moved the police authorities repeatedly expressing that in her absence she had been dispossessed and her belongings kept in her chamber/room situated on the ground floor of the aforesaid building has been taken away by respondent No. 7 and 8 with the help of anti-social elements. As such at the instance of this petitioner a criminal case being No. 8264/95, under Section 457 and 380, I. P. C. of P. S. Colonelganj, Allahabad is pending in the Court of A. C. J. M. I. An application under Section 156 (3), Cr. P. C. was also made by the applicant before the respondent 9, learned A. C. J. M. I, Allahabad, along with an affidavit by the petitioner for search and seizure of the stolen goods from the premises and the learned Magistrate called for report from the police and that report of the police was withheld by the police and after much pursuance the police submitted a report contrary to the facts under the influence of respondents 7 and 8 and other some influential persons who wanted to grab the property, that is the entire premises of Bungalow No. 11-B, Bank Road, which at the present is a costly property due to its situation in the heart of the city It is submitted that the police is not talking steps for the search and seizure of the alleged stolen goods/articles. Hence this writ petition has been filed by the petitioner for a direction to command the respondents to arrest the accused persons of case crime No. 826/95, under Sections 457/380, I. P. C. of P. S. Colonelganj, Allahabad forthwith and to recover the stolen properties and also to restore the possession thereof including the chamber/room of the petitioner situated at the eastern portion of the ground floor at 11-B Bank Road, Allahabad. Learned counsel for the respondents 1 and 7 contended that the applicant/petitioner is in possession of the entire first floor as before. The suit filed in the competent civil court is pending and that the opposite parties Nos. 7 and 8 had not taken any recourse and they have no inten tion to dispossess the petitioner illegally. The chamber/room situated in the ground floor was never in possession of the petitioner and it has although been in possession of Late N. C. Upaphyaya and after his demise respondents 7 and 8 by virtue of a will executed by late N. C. Upadhyaya in their favour are in possession. This property has absolutely been devolved upoa respondents 7 and 8 and two probate cases and one civil suit in between the parties are pending. To pressurise respondents 7 and 8 from prosecuting the civil suit, the criminal case was initiated on false allegation. This application/petition has concocted a story although In collusion with her husband and has filed a criminal case being No. 826/95, under Sections 380/457, I. P. C. at P S. Colonelganj, Allahabad and the police had submitted a report to the effect that it was a mere civil dispute and prima facie no offence had been committed as alleged by the complainant party and as such the contesting opposite parties have prayed for dismissal of the writ petition upon further contending that If the chamber situated on the ground floor is given to the applicant/petitioner that will result so adversely that they will be forced to quite the house because their privacy will be seriously affected.
(3.) HEARD learned A. G. A. at length who submitted that it Is a mere case of civil dispute and it is very unfortunate that the petitioner and respondents 7 and 8 are at logger heads and the civil dispute should not be brought into criminal arena and the police has not at all colluded with respondents 7 and 8 and police has submitted correct report on the basis of spot enquiry and the Government machinery is not at all pressurised or influenced at the instance of respondent Nos. 7 and 8. On a perusal of the case prima facie it appears to me that the allegations alleged to com mission of an offence within the meaning of Section 380 read with Sec tion 457 I. P. C. and after investigation of the case if the police will submit charge sheet/final report then the learned court below will, apply own mind for taking action as may be deemed fit and proper in the circums tances of the case. As such I do not find any reason as to why search and seizure was not made by the police regarding the alleged stolen goods. If the alleged articles are found then the police should give them to a suitable person in zimma and submit a report to the learned court below concerned who thereupon shall pass necessary orders according to law after providing with due opportunity to the parties concerned. Regarding the restorations of the possession of the alleged chamber/room at the ground floor may be dealt with by the learned court below under the provisions of Section 456 Cr. P. C. in its proper stage of the criminal case and it cannot be done at this moment without taking evidence and ascertaining the facts whether applicant petitioner had been forcibly dispossessed as alleged by the complainant. This petition is thus finally disposed of with a direction to respon dents 3,4, 5 and 6 and they are hereby commanded to cause search and seizure in the alleged ground floor and particularly in the chamber/room of Late N. C. Upadhyaya situate at 11-B, Bank Road after Lala Ram Narain Lal, Allahabad and if the alleged articles are found that should be seized and the same be given in zimma to a suitable person or to take those articles into custody, submit a report to the learned A. C. J. M. First Court at Allahabad, within 7 days from this date and they should expedite the investigation and submit charge- sheet/final report before the learned court below concerned at an early date.;