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RAM GOVIND versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ram Govind v. State Of U.P. And Others - CRIMINAL MISC. WRIT PETITION No. - 12160 of 2007 [2007] RD-AH 15631 (17 September 2007)

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 AT ALLAHABAD

Reserved

Criminal Misc. Writ Petition No.12160 of 2007

Ram Govind Vs. State of U.P. & Ors.

Hon. A.K. Roopanwal, J.

This criminal writ petition has been filed for quashing the judgment and order dated 7.8.07 passed by the Sessions Judge, Sonebhadra (annexure-6 to the petition) in criminal revision nos. 32/07 and 66/06, Ram Kishun and others Vs. Ram Govind and others whereby these revisions were partly allowed subject to observations and directions made in the body of the judgment.

The brief facts which gave rise to this writ petition are as under:-

Criminal case no.1/176, under Section 145, Cr.P.C. started on the application dated 18.5.1984 moved by the petitioner before Up Zila Magistrate, Duddhi/Pipri, District Sonebhadra. In this case a question was raised that the proceedings under Section 145, Cr.P.C. could not be continued as a civil case was pending between the parties. The trial court after giving opportunity of hearing to both the parties terminated the proceedings under Section 145, Cr.P.C. vide order dated 30.5.97. The petitioner being aggrieved by this order filed a revision no.39/97, Ram Govind Vs. Ram Kishun Sahi and others in the Sessions Court. This revision was allowed by the Sessions Judge, Sonbhadra vide order dated 1.7.97 and a direction was issued to the court concerned to proceed further in the matter. Thereafter, the S.D.M. Concerned issued notice to both the parties. O.P. No.1 i.e. the petitioner put in appearance but none appeared for opposite parties no.2, 3 and 4 of the writ petition. The S.D.M. Considered the material available on the record and after hearing the arguments of the first party found him to be in possession over the property in dispute. He cancelled the notice under Section 145, Cr.P.C. vide order dated 17.11.03 and ordered that the possession of the disputed property be restored to the petitioner. To set aside the order dated 17.11.03 an application dated 12.9.05/24.9.05 was moved by opposite party Ram Kishun Sahi before the court concerned. This application was rejected by the S.D.M. Duddhi/Pipri vide order dated 19.10.06 and the order earlier passed on 17.11.03 was maintained. Against the order dated 17.11.03 revision no.32/07 was preferred by Ram Kishun Sahi, Shiv Kumar Sahi and Smt. Sharda Devi against the petitioner Ram Govind and Babua. They also filed revision no.66/06 against the order dated 19.10.06 against the same persons. Both these revisions were heard and decided together by the Sessions Judge, Sonebhadra vide judgment and order dated 7.8.07. These revisions were partly allowed subject to observations and directions noted in the body of the judgment. In the body of the judgment it was observed regarding impugned order dated 17.11.03 that this order was correct so far as the cancellation of notice under Section 145, Cr.P.C. was concerned. However, this order was not approved so far as it directed that the possession of the disputed property be restored to opposite parties no.1 and 2 i.e. Ram Govind and Babua. Regarding revision no.66/06 it was observed by the Sessions Judge that this order was correct so far as it relates to the rejection of the application dated 12.9.05/24.9.05 moved by Ram Kishun Sahi. However, the remaining part of the order dated 19.11.06 by which the direction was issued to S.O. Concerned to deliver possession of the disputed property to opposite parties no.1 and 2 was not approved. Feeling aggrieved by the judgment and order dated 7.8.07 the present writ petition has been filed.

I have heard Mr. Satish Trivedi, learned senior counsel assisted by Mr. A.K. Mishra for the petitioner, learned AGA for O.P. No.1 and Mr. Surendra Tiwari, learned counsel for opposite parties no.2, 3 and 4.

Learned counsel for the petitioner argued that it has wrongly been held by the Sessions Judge that the second party (revisionists of criminal revision nos.32/07 and 66/06) was in possession of the disputed property on the date of issuance of preliminary order under Section 145, Cr.P.C. and subsequent thereto during these proceedings. He further argued that the Sessions Judge was also wrong in setting aside the later part of the order dated 17.11.03 whereby the Magistrate had ordered the restoration of possession of disputed property in favour of the petitioner. He also argued that it was also wrongly held by the Sessions Judge that the later part of the order dated 19.10.06 was wrong and liable to be set aside.

Contrary to the above arguments it was argued by Mr. Tiwari that the possession of the revisionists of revision no.32/07 and 66/06 on the disputed property on the date of issuance of preliminary order under Section 145, Cr.P.C. was rightly held by the Sessions Judge and the Sessions Judge was also right in setting aside the later parts of the order dated 17.11.03 and 19.10.06 as these orders could not be passed because of the fact that the property had not been attached under Section 146, Cr.P.C., hence, there could be no question of releasing it in favour of first party.

A look at the impugned order would reveal that the possession of second party over the disputed property on the date of issuance of the preliminary order under Section 145, Cr.P.C. and subsequent thereto was held solely on the statement of first party Ram Govind (writ petitioner). It has not been shown that whatever has been written about the statement of Ram Govind by the Sessions Judge in the impugned judgment is contrary to the evidence on record or it is perverse on any other account. Therefore, it can safely be said that the statement of Ram Govind was rightly referred by the Sessions Judge in the impugned judgment. When this statement was rightly referred then on the basis of this statement it could rightly be held that the second party was in possession over the disputed property on the date of issuance of preliminary order and subsequent thereto during the proceedings under Section 145, Cr.P.C. as Ram Govind himself had admitted the possession of second party on the disputed property. There appears no illegality or perversity in this finding recorded by the Sessions Judge.

When this was the finding of the Sessions Judge that the second party/revisionists were in possession over the disputed property on the date of issuance of preliminary order under Section 145, Cr.P.C. and subsequent thereto during these proceedings then there could be no other option with the Sessions Judge but to set aside the later parts of the orders dated 17.11.03 and 19.10.06. It these parts were allowed to continue that would have simply meant that the possession of first party had been recognised which would have definitely been contrary to the finding recorded by the Sessions Judge that second party was in possession.

Therefore, I am of the opinion, that in the circumstances where the court was of the opinion that the second party was in possession of the disputed property, it was justified and necessary to set aside the later parts of the orders dated 17.11.03 and 19.10.06 and that was rightly ordered by the Sessions Judge.

In view of the above discussion, I find no improperly or illegality in the order dated 7.8.07 passed by the Sessions Judge, Sonebhadra in criminal revision nos. 32/07 and 66/06.

Consequently, this writ has no merits and it is liable to be dismissed. It is, accordingly, dismissed.

Dated:17.9.07

T. Sinha.


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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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