Iqram and Another vs The State of Uttar Pradesh and Another

Palok Basu, J.—This application u/s 482 Code of Criminal Procedure has been filed against an order of the Magistrate dated 26-7-1982 attaching the property in dispute passed Under Sections 145/146 Code of Criminal Procedure.

It appears that the Applicants had challenged the said order in revision before the Sessions Judge, Buland Shahr who dismissed the same on 30-7-1982 Normally under law a petition u/s 482 Code of Criminal Procedure against the revisional order would not lie in this Court and the said revisional order is challengeable under Article 226 of the Constitution of India. Looking at the prolonged proceedings since the year 1972 and this petition u/s 482 Code of Criminal Procedure having been admitted by this Court on 8-9-1982, it does not appear desirable in the interest of justice to ask the Applicants to move another petition and it does appear fit and proper on the circumstances of this case to treat this petition as a petition under Article 226 of the Constitution of India so that real justice is done.

This case has a chequered history. A proceeding u/s 145 Code of Criminal Procedure was initiated in the year 1972 wherein a preliminary order and an order attaching the property in dispute was passed on 8th April, 1973. The Applicants Iqram and Sharif challenged the existence of the apprehension of breach of peace through an application. The learned Magistrate held, after hearing the parties, that there was in fact no apprehension of breach of peace and there was no dispute. Consequently, the said application was allowed and the proceedings u/s 145 Code of Criminal Procedure dropped.

The opposite party, Sheo Kumar Jalan, filed a revision against that order before the Sessions Judge who allowed the same on 25-5-1976. Aggrieved the Applicants Iqram and Sharif filed Criminal Revision No. 693 of 1976 in this Court which was allowed on 5-10-1976 with the specific directions that:--

The learned trial Magistrate is directed to dispose of the application of Ikram and others dated 26th April, 1973 in which an objections as to non-existence of apprehension of breach of peace had been taken after taking into consideration of the affidavits and other evidence of the parties which are on record. If he is of the view that there is still apprehension of breach of peace he shall proceed with the case in accordance with law and if he is of the view that no such apprehension exists he shall drop the proceedings as required under the law.

Before the Magistrate, on remand, an application was moved by opposite party, Sheo Kumar Jalan, that in order to give effect to this Court''s order dated 5-10-1976 the position as it existed before he had passed the original order of dropping the proceedings, should be restored. In other words it was contended that the property should be re-attached and then only the question should be decided. This application found favour with the Magistrate who passed an order dated 26-7-1982 for re-attachment of the property. Aggrieved again. Ikram and Sharif filed yet another revision before the Sessions Judge who dismissed it summarily holding that the order of the Magistrate dated 26-7-1982 being an interlocutory order revision where from was not maintainable. Hence this application in this Court by Ikram and Sharif.

It has been stated specifically in para 6 that the Magistrate had released the property in favour of the Applicants when he had dropped the proceedings initially and thereafter actual attachment of the plots was never done because of the interim orders obtain by the Applicants from time to time from different courts which he had been approaching.

Section 145 Code of Criminal Procedure has been enacted as an interim measure only where breach of peace is imminent empowering the executive magistrates to maintain law and order. The dragging of the proceedings from 1973 to 1991 indicates that neither there is apprehension of breach of peace nor is there any justification for continuing the proceedings before the Magistrate any more on facts as were stated before him in the year 1973. From the orders filed in this petition it does not appear that any further evidence was produced by the parties, after the remand order was passed by this Court. Consequently it will be an abuse of the process of the court if these proceedings u/s 145 Code of Criminal Procedure are permitted to continue any more on those materials.

This petition, therefore, succeeds and is allowed The entire proceedings before the Magistrate u/s 145 Code of Criminal Procedure giving rise to case No. 42 of 1979 (changed number after remand) are quashed.