- (1.) AJAI Kumar Singh, J. This is an application under Section 482, Cr. P. C. for quashing the orders dated 22-1-2005 and 24-3- 2003 passed by Sub-Divisional Magistrate, Badaun in criminal case No. 93 of 2003 under Section 145, Cr. P. C. and also for quashing the entire said criminal proceedings.
(2.) HEARD learned Counsel for the parties and perused the record. Briefly stated the facts are that late Girwar Dayal, father of opposite party No. 2 was Bhumidhar of plot No. 77 area 1. 67 hectare and plot No. 80 area 1. 963 hectare situated in village Ujhauli, Pargana and Tehsil Badaun District Badaun, who died on 3-4-1991. After his death the land was inherited by his two sons Dr. Brijpal Singh (opposite party No. 2) and Vinay Pal Singh. It has been alleged by applicants Usman Ali and Munney Ali that they purchased half share of the said land from Vinay Pal Singh through registered sale-deed dated 21-12-1995 and also obtained the physical possession of the land in dispute. According to the applicants the opposite party No. 2 had very strained relations with his father late Girwar Dayal and during his life time, opposite party No. 2 filed suit No. 136 of 1987, Dr. Brijpal Singh v. Vinay Pal Singh and Ors. , in the Court of Civil Judge, Badaun for partition of properties and in the said suit the opposite party No. 2 admitted the half share of Sri Vinay Pal Singh. The opposite party No. 2 with intention to harass the applicants filed Civil Suit No. 289 of 1998, Dr. Brijpal Singh v. Usman Ali and Anr. , in the Court of Civil Judge (Senior Division) Badaun for cancellation of sale-deed dated 21- 12-1995 executed by Sri Vinay Pal Singh in favour of the applicants. On 27-11-1998 the learned Civil Judge, Badaun granted temporary injunction till 2-12-1998 to the effect that the defendant shall not interfere in possession of the plaintiff. The said interim order was not extended after 12-1-1999. Sri Vinay Pal Singh filed affidavit before Superintendent of Police, Badaun to the effect that the opposite party No. 2 has prepared a forged will of his father late Girwar Dayal and the applicants filed Civil Suit No. 305 of 1999, Usman Ali and Ors. v. Dr. Brijpal Singh, in the Court of Civil Judge (Junior Division) Badaun for cancellation of said will dated 31-1-1991. The above mentioned suit Nos. 289 of 1998 and 305 of 1999, are still pending before the Court concerned and the evidence is to be recorded in the aforesaid case and no finding regarding title and possession has yet been given by the concerned Court. According to the applicants the opposite party No. 2 has failed to obtain any order from the Court of Civil Judge, Senior Division, Badaun in this regard. With intention to harass the applicants opposite party No. 2 filed an application under Section 145, Cr. P. C. before S. D. M. , Badaun upon which the S. D. M. , Badaun called for report from Tehsildar. The S. D. M. , Badaun without issuing notice to the applicants attached the land in dispute and issued preliminary order under Sections 145 (1) and 145 (8) and also issued attachment order dated 5-1-2000 (wrongly mentioned as 3-1-2000 in para 10 of the affidavit) under Section 146 (1), Cr. P. C. The applicants filed criminal revision against the said attachment order, which was dismissed. Against which the applicants filed a Criminal Misc. Application No. 572 of 2000 under Section 482, Cr. P. C. before the High Court. The High Court vide order dated 24-1-2000 stayed the operation of the said attachment order, but ultimately the aforesaid Criminal Misc. Application under Section 482, Cr. P. C. was dismissed by the High Court vide order dated 23-1-2002. Learned Counsel for the applicants contended that since the civil suits are pending between the parties regarding the land in dispute, hence the application under Section 145, Cr. P. C. before S. D. M. , Badaun regarding the same is not maintainable and the entire proceedings are liable to be quashed. Case laws Ram Sumer Puri Mahant v. State of U. P. and Ors. , AIR 1985 SC 472 and Ram Bilas @ Dhondey and Ors. v. State of U. P. and Ors. , ALR 2000 (41) 110, were cited in support of the said contention. Learned Counsel for the applicants also contended that the attachment order dated 5-1-2000 passed by S. D. M. , Badaun remained stayed upto 23-1-2002 by virtue of the order of this Court and during that period there arose no dispute causing apprehension of breach of peace, which shows that now there is no likelihood of any breach of peace regarding the disputed property, hence it would be proper that the proceedings under Section 145, Cr. P. C. be dropped by the S. D. M. Learned Counsel for the applicants emphasised that with this object in view applicants had moved application on 16-3-2002 (Annexure 11 to this affidavit) before the S. D. M. for calling a fresh report from the police station, but the S. D. M. , Badaun rejected the said application vide order 17-4-2002 and committed error. Against that order the applicants have filed Criminal Revision No. 77 of 2002, which was dismissed by the Additional District Judge, Court No. 9, Badaun vide order dated 7-3- 2003 on the ground that it is an interlocutory order. It has been further contended on behalf of the applicants that they are in possession of the disputed land in question but vide order dated 22-1-2005 the S. D. M. , Badaun has tried to dispossess applicants from the land in question in an arbitrary manner. Thus, the applicants have prayed for staying the operation of the order dated 24-3-2002 passed by S. D. M. , Badaun and the order dated 7-3-2003 passed by the Additional Sessions Judge, Court No. 9 in Criminal Revision No. 77 of 2005 and the order dated 22-1- 2005 passed by the S. D. M. , Badaun and has also prayed for quashing the entire criminal proceedings under Section 145, Cr. P. C.
(3.) THE opposite party No. 2 has filed counter-affidavit denying the allegations of the applicants. Though it has been admitted by opposite party No. 2 that he and Vinay Pal Singh are brothers but it has been alleged by him that the father of the opposite party No. 2 had executed will of his entire agricultural property on 31-1-1991 in his favour and in pursuant thereof his name has been mutated in revenue records vide order dated 14-4-1996 of the Tehsildar. It has been also alleged that the applicants filed an appeal before the S. D. M. against the same, which was dismissed on 28-9-1998. Against it applicants filed a revision before the Commissioner, Bareilly, which was dismissed on 5-8-1999. It has been further alleged by opposite party No. 2 that his brother Vinay Pal Singh has got no share in the said agricultural land of his father and in return cash and jewellery was given to him. It has also been alleged that Vinay Pal Singh started residing in his father in law's house after his marriage in the year 1987, due to which the father of opposite party No. 2 executed the will of the said land in favour of opposite party No. 2. It has been further alleged that the alleged sale-deed dated 21-12-1995 in favour of the applicants is a forged deed. It has been also contended on behalf of opposite party No. 2 that the aforesaid orders of S. D. M. , Badaun passed under Sections 145 (1), 145 (8) and 146 (1), Cr. P. C. were earlier challenged by the applicants by way of filing revision before the Sessions Judge which was dismissed vide order dated 7-3- 2000 by Additional Sessions Judge, Court No. 9, Badaun and Criminal Misc. Application under Section 482, Cr. P. C. filed before this Court against the said order of Additional Sessions Judge was also dismissed vide order dated 23-1-2002 and these orders of S. D. M. , Badaun have become final and cannot now be challenged again before this Court. On this basis it has been contended on behalf of the opposite party No. 2 that order dated 17-4-2002, 7-3-2003 and subsequent orders passed by S. D. M. , Badaun are just and legal and need no interference. In my opinion precisely the question involved in the earlier petition (i. e. Criminal Misc. Application No. 572 of 2000) filed before the High Court related to the question regarding apprehension of breach of peace with regard to property in dispute. This aspect of the matter was comprehensively adjudicated by Hon'ble High Court in the said petition. It would be appropriate to quote the verdict of the High Court delivered in the said petition, which is as under : "heard learned Counsel for the petitioner at great length and in detail. The order of attachment of the property in dispute in case No. 1 of 2000 under Section 145, Cr. P. C. by the Sub- Divisional Magistrate, Badaun is under challenge in the present case. It is submitted by the learned Counsel appearing for the petitioners that for the selfsame property two civil suites, one by the petitioners and the other by the respondent No. 2 are pending for adjudication and in the civil suit filed by respondent No. 2 ad interim order of injunction obtained by him was vacated by the trial Court. So, when the civil Court is in seisin of the matter parallel proceedings under Section 145, Cr. P. C. should not be allowed to continue and, therefore, the order of attachment passed by the learned S. D. M. should be quashed. It is conceded that no interim arrangement in respect of the property in question has been made by the civil Court nor the petitioners ever moved for interim injunction restraining the respondent No. 2 from interfering with their possession till the disposal of the suit. In such admitted factual backdrop no fault can be found with the learned S. D. M. Initiating a proceedings under Section 145, Cr. P. C. when in his opinion there was likelihood of breach of peace concerning the disputed land between the parties. While passing the preliminary order he also attached the property in question in exercise of power under Section 146, Cr. P. C. The impugned order reveals that the learned Magistrate applied his judicial mind to the facts and circumstances of the case and attached the parties in my considered opinion is not a ground to quash/set aside, the impugned order. The decision in the case of Ram Bilas @ Dhiondoy and Ors. v. State of U. P. and Ors. , ALR 2000 (41) 110 (sic), is quite distinguishable and has no application to the facts and circumstances of the present case. In the result, the Criminal Misc. Application fails and the same is dismissed. ";