DINESH KUMAR SINGH-I,J. - (1.) This writ petition has been filed with a prayer to issue a writ in the nature of certiorary seeking quashing of the order dated 22.7.2009 and 14.6.2011 passed by the City Magistrate, Aligarh in Case No. 9 of 2008 (State of U.P. Vs. Smt. Kanti Devi) under Section 145 Cr.P.C. and by learned Additional District and Session Judge, Bulandshahar in Criminal Revision No. 276 of 2009 (Nalini Kant Vs. State of U.P. And others), respectively.
(2.) The contentions are that a registered agreement of sale was executed by respondent no. 4 Kunwar Mohd. Abdul Bashir Khan in favour of petitioner Nalini Kant on 8.10.2003 and possession was handed over to the petitioner over the disputed property, whereafter the petitioner started sowing crops in the said plot. According to the said registered agreement, 7.10.2004 was fixed as the date for execution of sale deed. Thereafter, an application dated 5.10.2004 was sent by him to the Sub-registrar, Dibai, Bulandshahar but when the sale deed was executed he filed a Civil Suit No. 493 of 2007 (Nalini Kant Vs Kunwar Mohammad Abdul Basheer Khan and another) in the court of Civil Judge (Senior Division), Bulandshahar registered as OS No. 493 of 2007 ( Sri Nalini Kant Vs Kunwar Mohammad Abdul Basheer Khan @ Abdul Washi Khan) for specific performance of contract. In the meantime, the respondent no. 4 executed the sale deed of the said land in favour of respondent no. 2, Kanti Devi while the proceedings in the suit for specific performanc were still pending. Since the time of taking over the possession the petitioner was continuing in peaceful possession of the disputed land, but respondent no. 2 tried to dis-possess her and take possession herself but could not succeed. An application under Section 145 Cr.P.C. for initiating proceedings was moved by respondent no. 2, whereon a report was called for from the police which was submitted on 5.8.2008. After consideration of the said report, notice under Section 145(1) Cr.P.C. was issued on 29.9.2008 but without waiting for the reply as well as effecting service upon the petitioner, the attachment order has been passed on 29.9.2008 under Section 146(1) Cr.P.C., despite the fact that there was no urgency or emergency, particularly when there was no intervening event for initiation of proceedings under Section 146(1) Cr.P.C. Being aggrieved with the said order dated 29.9.2008, a criminal revision 396 of 2008 (Nalini Kant Vs. State of U.P.) was preferred, which was allowed vide order dated 17.4.2009, in which it was recorded that the proceedings initiated under Section 146 (1) Cr.P.C . as well as its consequential order passed by the court below were illegal and erroneous. The suit with regard to the same property was pending before the Civil Court, Bulandshahar and there was no possibility of any dispute or probability of breach of peace. Thereafter, against the said order dated 17.4.2009, respondent no. 2 had filed a Criminal Misc. Writ Petition No. 7752 of 2009 (Kanti Devi Vs. State of U.P. And others), in which High Court directed the trial court to decide the proceedings under 145 Cr.P.C . within a period of 30 days and further directed to arrange for the custody or otherwise of the crop standing on the disputed plot. Although, the view of High Court with regard to custody of the standing crop was a temporary arrangement but the learned Magistrate mis-construed the direction and erroneously attached the property and appointed a receiver over the disputed property on 22.7.2009. Feeling aggrieved with the aforesaid order, a Criminal Revision No. 276 of 2009 (Nalini Kant Vs. State of U.P. And others) was preferred which was dismissed vide order dated 14.6.2011. It is further mentioned that OS No. 1016 of 2016 was filed by Kunwar Abdul Bashir Khan for cancellation of agreement of sale on 8.12.2003, which was dismissed in default for want of prosecution and the same has not been restored till date. The revisional court has overlooked the finding as recorded in the earlier revision order dated 17.4.2009 which was still in effect and has erroneously dismissed the revision despite recording that civil dispute was pending before the Civil Court and the possession was with the petitioner before the same was given under order of trial court to the receiver. The revisional court justified the attachment made by S.D.M. concerned holding that it was not necessary for the SDM to be satisfied with the report of local police. Both the courts below failed to consider that the possession of the petitioner was admitted by police in its report as well as in the agreement of sale in question. The provision under Section 146 (1) is meant to be exercised only in emergent situation when there was apprehension of breach of peach, but no such emergent situation prevailed. When the civil suit is pending, proceedings under Section 145 Cr.P.C. should not be initiated. In these circumstances, it is prayed that the this petition be allowed and the both the impugned orders dated 22.7.2009 and 14.6.2011 be quashed.
(3.) No counter affidavit is found on record from the side of respondent nos. 2 to 4. However, respondent no. 1 has filed counter affidavit, in which it is stated that the petitioner has not been able to prove his possession of the plot in question. The respondent no. 2 Kanti Devi has filed this application for initiation of proceedings under Section 145 Cr.P.C. and taking into consideration that there was imminent danger to the breach of peace, the S.D.M. has passed the order under Section 145(1) Cr.P.C. and 146(1) Cr.P.C . on 29.9.2008. The order passed by the learned Magistrate dated 22.7.2009 is just legal and proper. In the circumstances of the case, the petitioner as well as respondents have failed to prove ownership and the possession over the property in dispute. There were several litigations pending between the parties. The police has not given any proof of possession. The averments made in this regard in the writ petition are false that the police had given the proof of possession. The learned SDM has passed order under Section 146(1) Cr.P.C. subejctively being satisfied that there was imminent danger of breach of peach. No effective order has been passed by the civil court. Hence, taking into consideration the apprehension of breach of paeach, the order under Section 145(1) Cr.P.C. and 146(1) Cr.P.C . have been passed.;