GANESH PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) This criminal revision has been preferred against the judgment and order dated 27.6.2016 passed by Sub Divisional Magistrate, Ghorawal, District Sonbhadra in Case No.10 of 2016 (Mahesh Prasad and another vs. Ganesh Prasad and others) under section 146 Cr.P.C. PS Ghorawal, District Sonbhadra whereby Incharge Police Station Ghorawal, District Sonbhadra has been directed to attach the property in dispute and give the same in Supurdagi of an independent person (Leelawatar Tiwari, earlier Gram Pradhan of Mauja Parsauna).

(2.) The facts, in brief, as culled out from the affidavit, counter affidavit and rejoinder affidavit are as follows:-

(3.) The opposite party nos. 2 and 3-first party had filed a case no. 10 of 2016 in the court of Sub Divisional Magistrate, Ghorawal, District Sonbhadra by the name of (Mahesh Prasad and another vs Ganesh Prasad and others) under section 145 Cr.P.C. stating that they were co-tenure holder of Araji No.286 area 0.2530 hectares and other Araji total 38 gata area 15.3150 hectares situated in Mauja Parsauna. A pedigree was also given. An allegation was made that the revisionist-second party were trying to take possession over the said land forcibly. The Sub Divisional Magistrate, Ghorawal, District Sonbhadra passed an order on 7.2015 calling for report from P.S. Concerned, which was submitted on 20.2016 by the police station concerned stating therein that both the parties were making allegations and counter allegations against each other and were trying to have possession of the said land, due to which tension prevailed between two side and that there was a possibility of cognizable offence being committed by the parties. It was further mentioned that the revisionists-second party were trying to take possession of the share in the property of the opposite party nos. 2 and 3-first party forcibly, resultantly the land of the opposite party nos.2 and 3-first party was lying 'Parti'. On 20.2.2016 proceedings were drawn under sections 107 and 114 Cr.P.C. and the police had asked for drawing proceedings under section 146 Cr.P.C. Relying upon the said report, Sub Divisional Magistrate passed a preliminary order under section 145 (1) Cr.P.C. and asked both the parties to submit their replies on 22.4.2016. Notices could be served only upon the revisionist nos. 3 and 6-second party i.e. Ram Ratan and Sheshmani while the remaining revisionists-second party had not been served with a notice. The revisionist-second party had filed a suit before Sub Divisional Magistrate, Ghorawal on 9.2.2015 under section 229-B of the U.P.Z.A. & L.R. Act with a prayer that a declaration be made against the opposite party nos. 2 & 3- first party that they did not have any right in the aforesaid land and their names be scored out. The same Presiding Officer had also passed an interim order directing the parties to maintain status quo on 6.6.2016 on the said application dated 9.2.2015 which also contained a direction that the said land would not be transferred or alienated. The said injunction order is still continuing being extended from time to time, which was evident from the questionnaire sought on different dates. It was surprising that the same Presiding Officer had passed different order for the same dispute between the same parties. The latest khatauni 1423F demonstrates that the revisionist-second party were in possession and were cultivating the crops on the said Araji. A regular civil suit had also been filed by the opposite party nos. 2 and 3-first party with regard to the disputed land with a prayer that a decree of injunction may be passed against the revisionists-second party and not to dispossess them illegally from the said land, which is pending till date, the same being suit no. 306 of 2015, in which no injunction order has been passed till now. The impugned order is illegal, arbitrary and cannot sustain in the eyes of law. The revisionists-second party have contested the election against the Ex.Pradhan to whom Supurdagi had been given, therefore he was equally inimical to them and was facilitating the police as well as Sub Divisional Magistrate to manipulate in favour of the opposite party nos. 2 and 3-first party. The SHO, Ghorawal has submitted a false and frivolous report stating therein that there was an apprehension of breach of peace, which was absolutely hypothetical and was submitted in collusion with the opposite party nos. 2 and 3-first party and also Ex.Pradhan in whose Supurdagi the said land was given. There are various judgments on the point that once the matter is sub-judice before a civil court and injunction order is in force, the proceedings under section 145(1) Cr.P.C. and 146 (1) Cr.P.C. would be an abuse of process of law. At the time of passing the order of Supurdagi dated 27.6.2016, the revisionists-second party had sown their crops of paddy and Makka etc. over the said land. Therefore, in the circumstances, it was expedient in the interest of justice to quash the impugned judgment and order dated 27.6.2016 passed by the Sub Divisional Magistrate, Ghorwal.