SURENDRA SINGH CHOWDHARY Vs. STATE OF U P

JUDGEMENT

(1.) G. P. Mathnr, J. This petition under Section 482, Cr. P. C. has been filed for quashing the proceedings initiated under Section 145 (1), Cr. P. C.

(2.) THE applicant Surendra Singh Chowdhary claims that he is allottee of shop bearing No. 33 situate at Jaipur House, Agra from Agra Development Authority and that be took possession of the said shop on 18-4 -. 975. According to the applicant, he is regularly paying the rent of the shop to the Development Authority and he is running his law chamber in the premises. Since, Aditya Prakash Sharma opp-party No. 3 threatened to dispossess the applicant from the disputed shop, he filed a civil suit bearing No. 260 of 1991 in the Court of Munsif, Agra against Opp-party No. 3 for injunction restraining him from taking forcible possession of the shop in dispute and on 19-3-1991 an injunction order was passed in his favour. On 17-3-1991, two F, I. Rs' were lodged under Section 395 I. P. C. at P. S. Loha Mandi, one by applicant and the other by opposite party No. 3, which were registered as Crime Nos. 74 of 1991 and 74-A of 1991. THE police of P. S. Loha Mandi gave a report before the Addl. City Magistrate, Agra on 18-3-1991 for initiating proceedings under Section 145, Cr. P. C. THE police of P. S. Loha Mandi sealed the shop as there was tension between the parties who both claimed to be in possession of the disputed shop. THE learned Addl. City Magistrate, 1st. passed a preli minary order on 20-3-1991 under Section 145 (1), Cr. P. C. and directed the parties to appear before him on 5-4-1991.

(3.) ON 16-4-1991, learned State Counsel was directed to file counter-affidavit and the case was ordered to be listed for admission on 2-4-1991. The State has, however, not filed any counter-affidavit till today. In my opi nion, the contention raised by the learned counsel is well founded. The police report dated 18- 3-91 (Annescure-9 to the petition) sbows that even before making the report to the learned Magistrate for initiating proceedings under Section 145, Cr. P. C. , the police had sealed the shop in question. The Code of Criminal Procedure does not counter any such power upon the police to lock and seal an immovable property while submitting a report for initiation of proceedings under Section 145, Cr. P. C. The learned Magistrate after passing preliminary order under Section 145 (1) Cr. P. C. could have passed an order of attachment under Section 146 (1), Cr. P. C. , if he was satisfied that the case was one of emergency. However, in the present case, even before the Magistrate passed the preliminary order under Section 145 (1), Cr. P. C. on 20-3-91, shop was locked and sealed by the police. This action of the police is wholly illegal and without jurisdiction.