MOHD. KASIM USMANI Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard, Shri Rajeiu Kumar Tripathi, learned counsel for the petitioners, Shri S.P. Tiwari, learned AGA for the State and Shri Mahmood Alam, learned counsel for the respondent no. 4.

(2.) This petition under Article 227 of the Constitution of India has been filed assailing the judgment and order dtd. 29/8/2018, passed in Criminal Revision No.141 of 2017 (Mohd. Kasim Usmani and Others Vs. State of U.P. and Others) by Third Additional Sessions Judge, Bahraich and the order dtd. 24/6/2017 passed in Case No.23 of 2015, under Sec. 145 of the Code of Criminal Procedure (here-in-after referred as Cr.P.C.) by the City Magistrate, Bahraich and to quash the proceedings of the said case.

(3.) Learned counsel for the petitioners submitted that the petitioners are the owner and in possession of the property in dispute since the time of their ancestors. Earlier, the names of predecessors of the petitioners were recorded in the records and now the petitioners' names are recorded. He further submitted that the proceedings under Sec. 145 Cr.P.C. are not maintainable as the dispute of title is also pending before the civil court in one of the suits filed by the respondent no.4 for declaration as well as cancellation of the sale deed. Another suit filed by the petitioners for injunction is also pending before the civil court. It was only after coming to know about the institution of the suit for permanent injunction filed by the predecessor-in-interest of the petitioners, application under Sec. 145 Cr.P.C. was filed before the Magistrate, which is apparent from the fact that the specific plea of knowledge of the suit taken in paragraph-21 of the petition has not been specifically denied and only a vague reply has been given in paragraph-33 of the counter affidavit. He further submitted that the respondent no.4 admitted the possession of the predecessor-in-interest of the petitioners in the application itself, therefore, the application was not maintainable. He further submitted that the impugned order dtd. 24/6/2017 could not have been passed by the learned Magistrate because there was no report of emergent need for passing the order on account of breach of public peace and tranquility. The impugned order dtd. 24/6/2017 was passed on a report dtd. 30/6/2015, whereas not even a single incident was reported after that and it also does not disclose of any emergent need. No any further report was also sought in this regard.