HASINA BANO Vs. STATE OF U P

JUDGEMENT

(1.) N. B. Asthana, J. Upon an application moved by the revisionist under Section 145, Cr. P. C. City Magistrate, Meerut passed a preliminary order under Section 145 (1), Cr. P. C. on 26-7-1990 with respect to two rooms, verandah, courtyard, kitchen, bathroom and latrine of house No. 381, Ismail Nagar, P. S. Kotwali, Meerut. On the same day another order under Section 146 (1 ). Cr. P. C. was passed attaching the subject-matter of dispute by way of emergency.

(2.) SARFARAZ opposite party No. 2 filed an application before City Magistrate, Meerut stating that he is the tenant of the subject-matter of dispute on behalf of the revisionist, that Suit No. 693 of 1990 for injunction filed by him is pending in the court of City Munsif, Meerut restraining the revisionist from interfering in his possession except in due course of law, the proceedings under Section 145, Cr. P. C. should be dropped as no apprehension of breach of peace existed and two parallel proceedings with respect to the same subject-matter of dispute cannot continue. Opposite Party No. 2 claimed himself to be the tenant and in possession of the subject-matter of dispute. The City Magistrate rejected this application vide order -toted 23-11-1992, opposite party No. 2 then filed Criminal Revision No. 363 of 1992 which was decided on 6-12-1994 by VIII Addl. Ses sions Judge, Meerut. The revision was allowed. The proceedings under Section 145, Cr. P. C. were quashed holding that when the civil suit was pending between the parties there was no justification for initiating parallel proceedings under Section 145, Cr. P. C. and if there was any apprehension of breach of peace then recourse should have been taken to proceedings under Section 107/111, Cr. P. C. Aggrieved by it Smt. Hasina Bano has come to this Court in revision.

(3.) IT was urged on behalf of opposite party No. 2 that the civil court has passed an order of maintaining status quo and in view of this order proceedings under Section 145, Cr. P. C. were uncalled for. IT was also contended that in the civil suit between the parties the matter would be finally decided and that proceedings under Section 145, Cr. P. C. would lead to harassment of parties. The purpose and object of proceedings under Section 145, Cr. P. C. is to maintain law and order to prevent parties from taking law into their own hands which may create breach of peace. Order passed by civil court should be such which may effectively prevent either of the parties from entering into dispute for taking posses sion of property by force. The order of maintaining status quo is a very fluid order. Each party may claim possession over the subject-matter of dispute stating that the order of maintaining status quo operates to his advantage as he or she continues to be in possession thereof. In such a fluid situation only proceedings under Section 145, Cr. P. C. could prove effective for maintaining law and order. Proceedings under Section 145, Cr. P. C. should be dropped only when the civil court has passed some effective order indicating as to which of the parties was entitled to possession or a Receiver has been appointed by the Court or some arrangement has been made for mainteannce of the property. Such proceedings are not to be dropped simply on the ground that a civil suit is pending. The S. D. M. would have jurisdiction to initiate proceedings in the instant case under Section 145. Cr. P. C. if he is satisfied that dispute relating to immovable property is likely to give rise to an apprehen sion of broach of peace. Whether such an apprehension existed is a matter of subjective satisfaction of Magistrate. From the police report such an apprehension has been made out. Even the lower revisional court has not come to the conclusion that such an ap prehension did not exist. In this state of affairs proceedings under Section 145, Cr. P. C. could not have been dropped. The lower revision court committed mistake in dropping such proceedings. The revision has therefore to be allowed.