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SHANTI SARAN AND ANOTHER versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Shanti Saran And Another v. State Of U.P. And Others - APPLICATION U/s 482 No. 12333 of 2005 [2006] RD-AH 2538 (1 February 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

Hon'ble M. K. Mittal, J.

Heard Sri S. K. Mishra, learned counsel for the applicants, Sri Dharam Pal Singh, learned counsel for the opposite party no. 3, learned A.G.A. and perused the record.

Application under Section 482 Cr.P.C. has been filed with the prayer to quash the proceedings in Criminal Case No. 82 of 2005 under Section 145 Cr.P. C., P.S. Ghazipur, District Fatehpur (Brij Kishore Tiwari Vs. Shanti Saran and others) pending in the Court of Upper Division Magistrate, Fatehpur.

Contention of the learned counsel for the applicant is that the applicants are the owner in possession of the disputed house as they have purchased it through the registered sale deed from Smt Laxmi Devi and Indrani Devi earlier owners of the house. Opposite party no. 3 filed original suit no. 107 of 2005 in the Court of Civil Judge, Junior Division, Fatehpur for the relief of possession and injunction in respect of this house on 24.2.2005 and the learned Court passed an order directing the parties to maintain status quo same day. Learned counsel for the applicants has further contended that inspite of that opposite party no. 2 filed the proceedings under Section 145 Cr.P.C. in collusion with the Police and the learned Magistrate passed an order under Section 145(1) Cr.P.C. on 4.5.4005 and an order under Section 146(1) Cr.P.C. on 22.6.2005. The contention of the learned counsel for the applicants is that since civil suit is pending between the parties and the proceedings under Section 145 Cr.P.C. are multiplicity and if they continue it will amount to misuse of the process of the Court as the learned Magistrate has directed for attachment of the house in question ignoring the injunction order passed by the Civil Court.

Learned counsel for the opposite parties has contended that the applicants are not in possession and that they are the owner of the house in question. However, it is admitted that opposite party no. 2 filed a civil suit and an injunction order was also passed but according to the learned counsel for the opposite party the applicants have violated that injunction order and there was apprehension of breach of peace and therefore the proceedings under Section 145 Cr.P.C. were initiated and the learned Magistrate has passed the order. But the contention as made by the learned counsel for the opposite party is not tenable. If there was any breach of the stay order passed by the Civil Court the plaintiff of the case could have  taken action under Order 39 Rule (1) and (2) of the Code of Civil Procedure and on that basis the proceedings under Section 145 Cr.P.C. could not have been initiated.

In the case of Amresh Tiwari Vs. Lalta Prasad Dubey and others (2000) 4 SCC 440, Hon'ble Apex Court while considering the maintainability of the proceedings under Section 145 Cr.P.C. when the civil proceedings were also pending has held that it is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where relief granting protection of property concerned can be applied for and granted by the Civil Court that proceedings under Section 145 Cr.P.C. should not be allowed to continue. In the instant case, opposite party no. 2 filed a Civil suit and injunction order was also passed and that suit was for the relief of possession and injunction. In respect of the same property opposite party no. 2 filed proceedings under Section 145 Cr.P.C. and in view of the above law as laid down in the case of  Amresh Tiwari (Supra) the present proceedings under Section 145 Cr.P.C. cannot be allowed to continue. Earlier also in the case of Ram Sumer Mahant Vs. State of U.P. (1985) 1 SCC 427, the Hon'ble Apex Court has held that the multiplicity of litigation should be avoided and parallel proceedings should not continue.

Contention of the learned counsel for the opposite party is that there was apprehension of breach of peace but it is  not tenable in view of above legal position. Thus, I come to the conclusion that the proceedings under Section 145 Cr.P.C. are liable to be quashed and application under Section 482 is to be allowed.

Application is allowed and the proceedings  in Criminal Case No. 82 of 2005 under Section 145 Cr.P. C., P.S. Ghaziapur, District Fatehpur (Brij Kishore Tiwari Vs. Shanti Saran and others) pending in the Court of Upper Division Magistrate, Fatehpur are  hereby quashed.

Dated: 1.2.2006

RKS/12333/05


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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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