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SUBHASH CHAND GUPTA versus KRISHAN PAL AND OTHERS

High Court of Judicature at Allahabad

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Subhash Chand Gupta v. Krishan Pal And Others - CRIMINAL REVISION No. 1071 of 1990 [2006] RD-AH 20264 (29 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                  Reserved

Criminal Revision No. 1071 of  1990

Subhash Chand  Gupta Vs.  Krishan Pal  Singh and others

Hon'ble R.K.Rastogi,J

This is a  revision against  the judgment  and   order dated  16.4.1990  passed by   Sri  K.K.Agarwal,  then Ist Addl. Sessions Judge , Meerut  in  Criminal Revision No. 96 of 1989, Krishan Pal and  156 others  Vs.  Subhash Chand Gupta  and 45 others.

The facts  relevant for disposal of this  revision  are that  a report was lodged  by constable  Siyanand   at police station  Medical  on it atter was  enquired  by  the police of police station  Medical  and the report was   submitted  under section 145 Cr.P.C. in which members of first parties  were  Subhash Chand and 2 others  and  of second party  were   Shiv  Charan and 72 others . It was  alleged  in the  said  report that Khasra plot  no. 5730/5/1 belonged  to Bhawani Shanker. An area of  3-14-10 was alleged  to be in possession  of Bhawani Shanker, and on the said land  there was  residence of  Bhawani Shanker. Some other small houses were in possession  of the tenants. There was  dispute  in  respect  of  the  land  of the   plot  across  the road  and so  there was apprehension   of breach  of peace. The  S.O.  on this report  prayed  the Court for  proceeding under section 145 Cr.P.C. The preliminary order was passed  by he Magistrate  on 9.11.1983. The parties  filed  written statements. Subhash Chand Gupta   prayed for attachment  of the disputed  property  under  Section 146(1) Cr.P.C.  Second party  filed objection against  the application under section 146(1) Cr.P.C.  moved by  Subhash Chand. The learned  Magistrate  passed order  for  attachment of property  in dispute  vide order dated 9.12.1983. However, the  attachment  could  not be made . In the meantime  2 applications  C-24/1 and C-24/5 were  moved  by some persons  alleging  therein  that they  were in actual  possession   but   they were  not  impleaded as  party. They prayed  for  impleading  them  as party to the suit. The first  party  filed  objection  against  the  applications  of third  parties for  impleading  them on the ground  that the said persons  had got  no locus-standi and the applications were moved  in  collusion  with the second party  and the applications were  not maintainable. The proceedings   thereafter  remained pending for a long time  and vide order dated 13.12.1988, the learned Magistrate  rejected the  applications  of  third  parties. Another  application  for dropping  proceedings  under section 145(1)  Cr.P.C. dated 25.11.1983 was also  rejected.

Aggrieved against  the said  judgment  and order dated 13.12.1988  the present revision has been fled   by the revisionists.  The learned  Addl. Sessions Judge  allowed the  revision  and set aside  the order  passed by the learned Magistrate  on the  application  for impleadment  paper   No.   C-24/1 and C-24/5 and directed the  lower court to  implead the applicants (who had  moved the applications) as opposite parties in the case. Aggrieved with  that judgment and order,  Subhash Chand Gupta and  his wife  Munni Devi  filed this revision.

 Heard the learned counsel for the revisionists as well as the learned A.G.A.  None appeared on behalf  of other  opposite parties  though  they  were represented  through  counsel.

Learned counsel for the  revisionists made only  one submission before me that   in the proceeding under section 145 Cr.P.C the  parties  whose names find place in the  police report  or who  have been arrayed  as opposite parties in the application under section 145  Cr.P.C., are  entitled to be  heard  in the proceeding under section 145  Cr.P.C., and no other person can be impleaded in  such a case.

Learned A.G.A., however,  refuted  this contention  and submitted  that  the court  has jurisdiction  to implead the parties concerned   in such disputes as provided  under section 145  Cr.P.C.

The question whether  those persons who have filed application for being impleaded  in the proceeding under section 145  Cr.P.C. should be permitted to  to be impleaded as  such  or not,  depends upon  interpretation  of the words "parties  concerned in such  dispute" appearing  in Section 145 (1) Cr.P.C. This question  of impleadment  of  other persons  who moved application  for  their  impleadment  as parties  in   the case under section 145 Cr.P.C.  was considered by this court  in the case of Ganga Singh Vs.  Mohd.  Shah Khan: 1976 Crl. L.J.357 and it was laid down  by this court  that  where  the Magistrate  after issuance of  the preliminary order, gets information that  some other person to whom the order was not  originally  directed   is   also  concerned  in  the dispute , the  impleading  of such a person  as a party  cannot  be said to be beyond  the  jurisdiction  of the Magistrate. The impleadment  cannot  be deemed to  have  changed  the nature or  character of the  preliminary  order. Further , it is   also  in the interest of  justice  and necessary  for avoiding  multiplicity of  proceedings to let every person   who  claims to be  concerned  in the dispute  to  have an opportunity to put forward his  claim . Mere delay  in applying  for impleadment cannot be a ground  to refuse  impleadment.

A perusal of the  order  passed  by the learned Magistrate reveals that he had rejected the application for impleadment mainly  on the ground of  delay in  disposal of the case but,  as observed  in the above ruling, mere delay  in  filing application for  impleadment  can not be a ground  to refuse  impleadment.

It was next submitted by the learned counsel for the  revisionists that Surendra Pal  and others  had already  moved application  on 28.1.84 claiming themselves to be in possession of the disputed land  and their application  for impleadment  had been rejected  by the Magistrate  on 23.3.84 making observation that if they want,    they can  move  for  inquiry  by   Tahsildar on the point of their so called possession in the disputed land,  and  if such application is moved,  that can be  considered. Learned counsel  for the revisionists  submitted that   after  passing of this order dated 23.3.84 the aforesaid   persons did not  move  application for inquiry  by Tahsildar  and  moved fresh application   for impleadment on 15.12.1987 when the parties' evidence was  over and  so  these  applications were not maintainable.  It  however  appears that  a  report was  obtained from the Naib  Tahsildar-I Meerut  on 29.9.1988 and he  had submitted   three lists;  one  of 135 persons  who were  residing on the spot and  another list of 39 persons  who were not residing on the spot and  3rd  list of  110 persons  who were  residing on spot  and  had not been impleaded in the case ( as referred to in the  order of the learned  Magistrate  dated 13.12.1988.)

Under these circumstances  it appears  that  there were  persons  who had  allegedly been   in  possession of the  property  on the spot  but  since they  had not been impleaded in the case, it was necessary to implead them  so that  the controversy  between the parties  may  be finally settled  and the learned Sessions Judge  committed no  legal error  by  directing the Magistrate to implead  the applicants and to decide the case after  providing opportunity of hearing  to them. The order  passed by the learned Sessions  Judge does not suffer  from any illegality and thus the  revision has no force and is liable   to be dismissed.

The revision is, accordingly, dismissed .

Dated: 29.11.2006

MLK


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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