JUDGMENT Ravindra Singh, J.
1. Heard Sri Rajesh Kumar Singh, learned counsel for the petitioner and Sri P.C. Srivastava learned counsel for the respondent Nos. 3 and 4 and the learned A.G.A.
2. This Writ Petition has been filed against the order dated 10.8.2004, passed by the learned S.D.M. Sagri, District Azamgarh, in Crl. Case No. 33 of 2004 Bulaki v. Dhanju and Anr., whereby the property in dispute was attached under Section 146(1) Cr.P.C. and further it was directed that the property in dispute will be given in Supurdagi of an independent person and the order dated 21.8.2004 passed by the learned Sessions Judge, Azamgarh in Crl. Revision No. Nill of 2004, whereby the revision filed by the petitioner was dismissed.
3. The case of the petitioner in brief, is that there was a dispute between the petitioner and respondent Nos. 3 and 4 over the two rooms constructed by the petitioner in Araji No. 269. The respondent Nos. 3 & 4 claimed that the construction in dispute was in Araji Nos. 248 and 249 in village Madhnapar, P.S. Bilariaganj, District Azamgarh. In respect of the abovementioned dispute, both the parties were challaned by the police under Section 107/116 Cr.P.C. Thereafter, the police station concerned sent a report dated 19.4.2004 to the court of learned S.D.M. Sagri, District Azamgarh with a prayer that the above dispute between the parties is likely to cause a breach of peace. So the property in dispute constructed in Araji No. 269 may be attached under Section 146(1) Cr.P.C.
4. It is contended by the learned counsel for the petitioner that the learned Magistrate has relied upon the police report dated 19.5.2004 and passed an order under Section 145(1) Cr.P.C. ON 24.6.2004. It is too much order. It also shows that the dispute between the parties was not likely to cause a breach of peace. The notice issued under Section 145(1) Cr.P.C. was served on both the parties but non of the parties appeared before the learned S.D.M., Azamgarh to adduce the evidence in support of the. claim of possession even then the learned S.D.M. concerned passed the order dated 10.8.2004 under Section 146(1) Cr.P.C., attaching the property in dispute and directing the police station concerned to hand over the property to a receiver. The order dated 10.8.2004 was passed only on the basis of the police report dated 9.5.2004. There was no other material before the learned Magistrate for his satisfaction to pass the order under Section 146(1) Cr.P.C.
5. It is further contended that the petitioner was in possession of the property in dispute but he was illegally dispossessed by the respondent Nos. 3 & 4 thereafter in pursuance of the order dated 10.8.2004 the property in dispute has been given in the Supurdagi of one Jawahir Yadav, Village Pradhan of Gram Sakha Madhanpar on 24.8 2004. So the possession on the; property in dispute may be restored to the petitioner.
6. It is further contended that in respect of the same property a Civil Suit No. 775 of 2003 Bulaki v. Dhanju and Ors. is pending in the Court of learned Civil Judge ( Jr. Div.), Azamgarh in which an injunction order infavour of then petitioner has been passed on 4.12.2003 and the Respondent Nos. 3 & 4 were directed not to interfere in his peaceful possession of the house in dispute constructed in Araji No. 269 and to maintain the status-quo at the place in dispute. This order dated 4.12.2003 has neither been vacated nor modified In such circumstances, in respect of the same property in dispute, a. civil suit is pending and injunction order has been passed, the proceedings under Section 145 Cr.P.C. are not maintainable. The respondent Nos. 3 & 4 have forcibly taken possession of the property in dispute from the petitioner by disobeying the order dated 4.12.2003 passed by the learned Civil Judge ( Jr. Div.) Mohamdabad. So, the impugned order dated 8.10.2004, under Section 146(1) Cr.P.C., attaching the property in dispute and appointing a receiver, is a direct interference in the Civil proceedings pending in the competent court and this order is contrary to the order dated 4.12.2003 passed by the learned Civil Judge ( Jr. Div.) Mohammadabad, District Azamgarh. So the impugned order dated 10.8.2004 is illegal. The learned Sessions Judge also did not consider the revision filed by the petitioner on its merit and dismissed the same as not maintainable. So the order dated 21.8.2004 passed by1 the learned Sessions Judge, Azamgarh is also illegal and is liable to be set aside.
7. The contention made by the learned counsel for the petitioner is opposed ' by the learned A.G.A. and the counsel for the respondent Nos. 3 and 4 by submitting that in the present case, the proceedings under Section 145 Cr.P.C. are not maintainable on the ground of pendency of Civil Suit No. 775 of 2003 in the Court of learned Civil Judge ( Jr. Div.) Mohammadabad, District Azamgarh in respect of the same property in dispute. The respondent Nos. 3 & 4 were in actual possession of the property in dispute at the time of the attachment. So the order dated 10 8.2004 under Section 146(1) Cr.P.C. attaching the property in dispute by appointing receiver is illegal . The property in dispute has been wrongly attached. So the possession of the respondent Nos. 3 and 4 over the property in dispute may be restored.
8. In view of the facts and circumstances of the case and the submissions made by the learned counsel for the petitioners, it is admitted by both the parties that the initiation of the proceedings under Section 145 Cr.P.C during the pendency of the Civil Suit No. 775 of 2003 , in which an injunction order dated 4.12.2003, was passed by learned Civil Judge ( Jr. Div.) directing the respondent Nos. 3 & 4 not to interfere in the peaceful possession of the petitioner over the property in dispute and further directing to maintain status-quo at the place in dispute, was not proper. The order dated 10.8.2004 passed under Section 146(1) Cr.P.C. only on the basis of the police report dated 19.5.2004 where both the parties did not appear after receiving the notices, is illegal on the ground that in Civil Suit No, 775 of 2003, an injunction order dated 4.12.2003 was already in existence, in which the respondent Nos. 3 & 4 were directed not to interfere in the peaceful possession of the petitioner over the property in dispute constructed in Araji No. 269, and it was further directed to maintain the status-quo at the place in dispute. By passing a contrary order dated 20.8.2004 under Section 146(1), the learned S.D.M. concerned interfered in the proceedings pending in the civil court. The learned Sessions Judge did not consider the merit of the case and dismissed the revision as not maintainable. It is also an illegal order consequently, the impugned order dated 10.8.2004 under Section 146(1) Cr.P.C. passed by the learned S.D.M". Sagri District Azamgarh and the order dated 21.9.2004 passed by the learned Sessions Judge, Azamgarh in Crl. Revision No. Nill of 2004 are set aside and the proceedings under Section 145 Cr.P.C. in Case No. 33 of 2004 pending in the Court of learned S.D.M. Sagri, District Azamgarh are quashed and it is directed that the possession of the petitioner be restored forthwith over the property in dispute constructed in Araji No. 269 subject to the orders passed by the competent civil court.