SURYA NARAIN Vs. STATE OF U.P.

JUDGEMENT

(1.) This petition has been filed assailing the validity of the order dated 28.4.2012 passed by Sub Divisional Magistrate, Maharajganj whereby the proceedings under section 145, Cr.P.C. were dropped and the Magistrate refused to attach the property. Criminal Revision No. 38 of 2012 Surya Narain v. State of U.P. filed against the aforesaid order was also dismissed vide order dated 23.1.2014 which is also under challenge in this writ petition. This is a fourth round but even today despite repeated calls none has appeared to press this petition. The Counsel for respondent Sri A.K. Pandey is present. In such circumstances this Court deemed it fit to proceed in the matter on the basis of the record and also with the assistance of the learned AGA.

(2.) It appears from the record that notice under section 145, Cr.P.C. were issued and the parties after putting in their appearance placed their respective versions before the Magistrate concerned. Subsequently the Magistrate found that the proceedings in a Civil/Revenue Court on the same subject-matter is also going on and in the opinion of the Magistrate there was no satisfactory evidence produced regarding the apprehension of breach of peace. A very detailed discussion regarding the facts and documents and the respective claims etc. has been made in the impugned order and the Court below found that there was any hardly any justification to continue the proceedings under section 145, Cr.P.C. In such circumstances the proceedings were dropped. Apart from this an incidental order has also been passed to the effect that because prima facie on the basis of the facts and documents produced before the Court the possession of second party Kanti Devi is sufficiently proved and therefore, the property in question is being released in her favour. It has also been directed in the impugned order that the first party Surya Narain and Durgeshwar are also not to interfere with the peaceful possession of the second party till the final adjudication of consolidation Court. The direction was in the nature of an injunction order from all corners.

(3.) So far as the right of the Magistrate to drop the proceedings is concerned, section 145(5), Cr.P.C. confers sufficient powers on him to do so. If the Magistrate after initiating the proceedings under section 145, Cr.P.C. was satisfied at a latter stage about non existence of apprehension of breach of peace there was no question for him to continue the proceedings, because the very basis which gives rise to the jurisdiction of the Magistrate to proceed under section 145, Cr.P.C. scuttles. To that extent the impugned order passed by the Sub Divisional Magistrate is unassailable.