Govind Saran and Another vs State of U.P. and Another

B.N. Katju, J.—This is an application u/s 482 Code of Criminal Procedure praying that the order of the Sub-Divisional Magistrate, Ghaziabad dated 6-12-1976 and the order of the District and Sessions Judge, Ghaziabad dated 12-1-1977 be quashed.

Salek Chand, opposite party No. 2, filed an application on 4-6-1976 u/s 145 Code of Criminal Procedure in the Court of the Sub-Divisional Magistrate, Ghaziabad for initiating proceedings u/s 145 Code of Criminal Procedure against the applicants. It was alleged in the application that the applicants had taken forcible possession of plot No. 665 in village Pilkhua in which a Calander Mill was situated and plot No. 666 in which a pond (talab) was situated which were used by the general public. Both these plots were alleged to belong to the Land Management Committee of village Khera. When Salek Chand and other members of the public requested the applicants not to make constructions in the aforesaid plots the applicants became furious and demonstrated by show of force. A copy of the aforesaid application was sent to the Station Officer, Pilakhuwa for his report and the Station Officer, Pilakhuwa reported on 5-6-1976 that the property in dispute belonged to the public and vested in the Municipality and the applicants were trying to take possession of it forcibly and there was apprehension of breach of peace and he recommended action u/s 145 Code of Criminal Procedure. A preliminary order was thereafter passed by the Sub-Divisional Magistrate, u/s 145(1) Code of Criminal Procedure on 9-6-1976 directing the applicants and Salek Chand to file their written statements with respect to their claim of actual possession over the disputed property and also to file documents and to adduce evidence in support of their respective claims. The applicants and Salek Chand were also directed to appear in court on 21-6-1976. On 10-6-1976, Salek Chand moved an application u/s 146 Code of Criminal Procedure for attachment of the property in dispute which appears to have been rejected on 14-6-1976. On 21-6-1976, the applicants filed their written statement. On 25-11-1976, Salek Chand moved another application before the Sub-Divisional Magistrate, Ghaziabad for attaching the disputed property u/s 146 Code of Criminal Procedure and on 26-11-1976 he filed his written statement. On 26-11-1976, the Sub-Divisional Magistrate, Ghaziabad directed to police to submit a fresh report and the Station Officer of Police Station, Pilakhuvva submitted his report on 3-12-1976 in which it was stated that there was tension between Guptas and Brah-mans of Pilakhuwa town owing to which there was apprehension of breach of peace. On the basis of the aforesaid report, the properly in dispute was attached u/s 146(1) Code of Criminal Procedure by the Sub Divisional Magistrate, Ghaziabad by his order dated 6-12-1976. The applicants filed a revision against the aforesaid order which was dismissed by the District and. Sessions Judge, Ghaziabad by his order dated 12-1-1977.

It is clear from the application of Salek Chand dated 4-6-1976 that he did not claim possession over the disputed property but only claimed a right of user of the disputed property as a member of the public. In these circumstances, I am clearly of the opinion that Section 145 Code of Criminal Procedure was wholly inapplicable as it applies in only those cases in which two or snore persons claim actual possession over the disputed property giving rise to a dispute regarding possession which is likely to cause breach of peace. If one party claims actual possession over the disputed property and the other party claims only a right of user of the disputed property there is obviously no dispute regarding possession over the disputed property which can be determined u/s 145 Code of Criminal Procedure. The preliminary order u/s 145(1) Code of Criminal Procedure dated 9-6-1976 was thus illegal. It, therefore, follows that the order of attachment u/s 146(1) Code of Criminal Procedure dated 6-12-1976 was also illegal and is liable to be set aside.

This application is accordingly allowed and the order of the Sub-Divisional Magistrate, Ghaziabad dated 6-12-1976 and the order of the District & Sessions Judge, Ghaziabad dated 12-1-1977, rejecting the revision of the applicants against the aforesaid order, are set aside. It will however, be open to the learned Magistrate to proceed u/s 147(4) Code of Criminal Procedure.