Girja Shanker vs State of U.P.& Ors.

V. N. Mehrotra, J.—Criminal revision No. 457 of 1987 has been filed by revisionist Girja Shanker Tewari against the order dated 531987 by Sri M. P. Singh, Sessions Judge, Ballia, allowing the revision filed by Rajat Kumar and four others against the order by the SubDivisional Magistrate, Ballia, directing that the proceedings under Section 145, Cr. P. C. are to continue and also attaching the property in dispute. The Criminal application No. 3930 of 1988 has been filed by Rajat Kumar and others under Section 482, Cr. P. C. for quashing the proceedings under Section 145, Cr. P. C. on the ground that a civil litigation in respect of the land in dispute was pending between the parties.

Both these cases have been taken up and heard together and shall be disposed of by this judgment. The facts of the case, brieflp stated, are that Girja Shanker Tiwari moved an application alleging that there was dispute between the parties regarding the pessession over the land in dispute which may lead to the breach of peace. Report was called from S. O. concerned, after which the SubDivisional Magistrate passed preliminary order under Section 145 (1) Cr. P. C. initiating proceedings in the case. It appears that the second party i. e. Rajat Kumar and others filed a suit under Section 229B of the U. P. Zamindari Abolition and Land Reforms Act before the competent Court for declaration of the title in respect of the land in dispute. An application was moved before the SubDivisional Magistrate concerned praying that the proceedings under Section 145 Cr. P. C. be dropped as civil litigation in respect of the same was pending between the parties to the proceedings. The learned SubDivisional Magistrate rejected the application on the ground that Girja Shanker Tiwari was not a party to the proceedings under Section 229B of the U. P. Zamindari Abolition and Land Reforms Act.

The opposite parties, Rajat Kumar and others, then filed revision before the Sessions Judge, Ballia, who allowed the same by the order dated 5th March, 1987. In this order the learned Sessions Judge observed that the order by the learned SubDivisional Magistrate that the preceedings under Section 145, Cr. P. C. will not abate was misconceived because Badri Narain Tiwari had filed the regular suit in the Court of Addl. SubDivisional Officer, whereas the proceedings under Section 145, Cr. P. C. have also been initiated regarding the same property by Girja Shanker Tiwari on bahalf of Badri Narain Tiwari. It was further observed that according to Girja Shanker Tiwary he was in possession over the land in dispute on behalf of his father Badri Narain Tiwari, hence it become meaning less that Girja Shanker Tiwari was not contesting the suit under Section 229B of U. P. Act No. I of 1951. It was further observed that in view of the decision in the case of Ram Swner Puri v. State of U. P., AIR 19i5 SC p. 472, the proceedings under Section 145, Cr. P. C. could not continue.

In this revision it has been asserted on behalf of the revisionist that the order by the learned Sessiocs Judge was illegal and the proceedings under Section 145, Cr. P. C. could not be terminated merely because a suit between opposite parties and Badri Narain Tiwari under Section 229B was pending.

I have heard the learned Counsel for both the parties. The learned Counsel for the revisionist has, during his arguments pointed out that the entire land which was in dispute in proceedings under Section 145, Cr. P. C. was not in dispute in suit under Section 229B of the U. P. Zamindari Abolition and Land Reforms Act. He has mentioned that the property in dispute in proceedings under Section 145, Cr. P. C. consists of land situated in village Karnai, Gharhara and Sukulpur which has beed detailed in the preliminary order under Section 145 (1), Cr. P. C. passed on 1121986, in schedule '''' and ''''. It has been mentioned that some plots of the land situated in village Gharhra as well as land situated in village Shukulpura and detailed in schedule '' '' of the order is not included in the suit under Section 229B of the U. P. Zamindari Abolition and Land Reforms Act. This fact has not been disputed by the learned Counsel for the opposite parties. It is thus obvious that the learned Sessions Judge was wrong in observing that the entire property which was in dispute in the proceedings under Section 145, Cr. P. C. was also in dispute in the suit under Section 229B of U. P. Zamindari and Land Reforms Act.

Further, the Magistrate concerned has rejected the application for dropping the proceedings under Section 145, Cr. P. C. on the ground that Girja Shanker Tiwari is not a party to the suit under Section 229B of the U. P. Z. A. & L.R. Act. He has, however, not considered the facts mentioned by the learned Sessions Judge to the effect that in proceedings under Section 145, Cr. P. C. the first party has claimed possession over the land in dispute on behalf of his father. Badri Narain Tiwari who is a party to the above mentioned suit. The learned SubDivisional Magistrate has not considered this aspect of the matter.

Considering the above mentioned facts it will be just and proper in this case that the matter is again sent back to the Magistrate concerned for deciding the application moved by Rajat Kunar and others for dropping the proceedings under Section 145, Cr P. C. on the ground of pendency of the suit under Section 2298 of the U. P. Z. A. & L. R. Act. The learned SubDivisional Magistrate shall consider as to whether the proceedings were liable to be dropped and, if so, in respect of which of the plots is dispute. He shall, while reconsidering this matter, also consider as to wiiither the first party, Girja Shanker Tiwari, was claiming possession over the laad for and on behalf of this father, Badri Narain Tiwari and if so, whether it can be said that the suit under Section 229B of the Act was between the same parties, who are the parties to the proceedings under Section 145. Cr. P. C.

With these observations the revision is allowed and the impugned order dated 5th March, 1987, by the Sessions judge Ballia is set aside. The case is sent back to the SubDivisional Magistrate, Ballia for recoasidering the application moved by the opposite parties, Rajat Kumar and others for dropping the proceedings under Section 145, Cr. P. C. As the matter is being sent back to the Magistrate concerned for a fresh decision on the application by Rajat Kumar and others, no orders are required on the application under Section 482, Cr. P. C. moved by them in this Court.

Revision allowed.