DHARMENDRA RAJPUT Vs. STATE OF U.P.

JUDGEMENT

(1.) This writ petition under article 226 / 227 of the Constitution of India has been filed with a prayer to quash the order dated 1.7.2010 (annexure 13 to the writ petition) and order dated 19.6.2010 (annexure 10 to the writ petition) passed by Sessions Judge, Jhansi and criminal revision no.171 of 2010 and criminal revision no. nil of 2010 respectively and also to quash preliminary order dated 7.6.2010 under Section 145 (1) Cr.P.C. (annexure 4 to the writ petition) and order dated 10.6.2010 under Section 146 (1) Cr.P.C. (annexure 5 to the writ petition) passed by Additional City Magistrate, Jhansi and other consequential prayers for direction to the Magistrate to lift the attachment of the shop in dispute and dropping the proceedings under Section 145 Cr.P.C.

(2.) The facts are that the petitioner and respondent no.2 are closely related and are cousins. Respondent no.3 is wife of respondent no.2. The dispute revolves around a shop situated in Sipri Bazar, Jhansi wherein a business in the name of 'Janaks Sweets & Cold Drinks' was being run. On 21.4.2010, an application under Section 145 Cr.P.C. was moved by respondents no.2 & 3 before Additional City Magistrate, Jhansi stating therein that they are the co-owners of shops no.79/1 to 79/7, Sipri Bazar, Jhansi whereupon they and other co-owners are running business in the name of 'Janaks Sweets & Cold Drinks'. Earlier the business was being done in the name of 'Ras Bahar'. On 23.7.1975, a partition of the joint properties took place between their ancestor Late Sri Ghasi Lal and his four sons namely Kashi Ram, Bhagwati Prasad, Narayan Das and Kamta Prasad. Respondent no.2 is the son of Kamta Prasad and the petitioner is the son of Bhagwati Prasad. No share was given to Bhagwati Prasad in the partition, but Bhagwati Prasad was given a share in shop no.78 and Bhagwati Prasad had no share in the disputed shop. Late Ghasi Lal, having 1/4th share in the shop, executed a registered Will on 24.9.1977 bequeathing his share to respondents no.2 and three other grandsons. By the virtue of the aforesaid Will, the respondent no.2 became owner of 1/16th share in the disputed shop. His wife respondent no.3 purchased 1/4th share of the shop from Kashi Ram. It was claimed in the application that the petitioner Dharmendra Rajput has no share in the shop, but being a member of the family, he was running joint business in the shop, but had started claiming himself to be the owner of the business and is preventing the respondents no.2 & 3 from entering the shop. On 18.4.2010 at 5:00 p.m., respondent no.2 and his son went to the shop, but the petitioner asked them to go out of shop and was prepared to fight and, therefore, there was apprehension of breach of peace.

(3.) A report was also submitted by Sub Inspector K.N. Singh of P.S. Sipri Bazar to the Additional City Magistrate, Jhansi on 29.4.2010 wherein it was mentioned that Late Ghasi Lal had executed a registered Will in favour of the petitioner, respondent no.2, Shailendra Rajput and Narendra Rajput and both the parties were running business on the shop, but opposite party (petitioner) was preventing respondent no.2 from coming to the shop. By by a subsequent report dated 7.6.2010, police requested the Magistrate to attach the shop.