Reserved
Court No. - 58
Case :- CRIMINAL REVISION No. - 431 of 2015 Revisionist :- M/S Goel And Goel Associates Opposite Party :- State Of U.P. And 4 Others Counsel for Revisionist :- Rajiv Lochan Shukla, Ankush Shukla, Ankush Tandon Counsel for Opposite Party :- Govt.Advocate, D.P.Singh, Nisaruddin, Prateek Sinha, Ziauddin Sadab
Hon'ble Ravindra Nath Kakkar,J.
Heard learned counsel for the revisionist and learned A.G.A. for the State as well as learned counsel for the opposite party nos. 2 to 5.
This criminal revision has been preferred against the order dated 27.01.2015 passed by the City Magistrate, District-Kanpur Nagar in case No. 5 of 2014 (State Vs. Kalpesh Shukla and others), under Section 145 Cr.P.C., PS-Pheelkhana, District-Kanpur Nagar whereby the notices under Section 145 (1) Cr.P.C. dated 29.12.2014 and under Section 146 (1) Cr.P.C. dated 06.01.2015 have been recalled and the aggrieved parties have been given a week's time to appeal whereafter the file has been directed to be consigned.
It is contended on behalf of learned counsel for the revisionist that perusal of the order sheet reveals that after preliminary order dated 29.12.2014, till order dated 06.01.2015, notices had not been served. On 06.01.2015 the date 16.01.2015 had been fixed to await the notices. On 16.01.2015 the revisionist, opposite party no.2 and opposite party no. 5 put in their appearance through counsel and order for providing necessary copies was passed and next date was fixed for 27.01.2015. On 27.01.2015 the revisionist appeared through Sri Raj Goel. However, neither any arguments nor any proceedings took place on that date and a general date 5.2.2015 for further proceeding was given which is endorsed in the order-sheet and there was no mention in the order-sheet that any order was passed on 27.01.2015 itself. It is next contended that final order for recalling the notices dated 29.12.2014 and 06.01.2015 under Sections 145 (1) and 146 (1) Cr.P.C. was passed by the Magistrate concerned behind back of the parties in gross violation of the principles of natural justice. It is next contended that provision contained under Sections 145 and 146 have not been followed and order was passed only on the basis of undated Vakalatnama and two undated applications which appears to have been moved on 09.01.2015. However, in the order-sheet there does not appear any endorsement as to the appearance made by opposite party no. 4 in the proceedings and opposite party no. 4, who is a practising Advocate at District-Kanpur Nagar, appears to have been instrumental in getting this illegal impugned order which has been passed without following procedure as prescribed under Section 145 (5) Cr.P.C. It is next contended that opportunity of hearing was denied by the concerned Magistrate. It is next contended that learned Magistrate refused to take the cognizance of the civil proceedings which is the probate proceedings on the basis of will by opposite party no. 5 which is itself summary proceedings, solely concerned with devolution of the property and it can neither be considered to be proceedings involving title nor civil proceedings requiring declaration or adjudication of the title, as such there could not have any power for proceeding under Section 145 (1) and 146 (1) Cr.P.C. merely because of the pendency of proceedings for probate before the learned Additional District Judge-XV, Kanpur Nagar in case No. 125/70 of 2014 (Santosh Kumar Newatia Vs. Rajesh Kanodia and others). The finding given by the learned Magistrate to the effect that the decision given in probate proceedings would be binding on all the parties as well as the Court of the learned Magistrate is absolutely perverse and not sustainable under the law. It is next contended that proceedings for probate are in the nature of summary proceedings, which would be restricted to the parties of the probate proceedings themselves. Therefore, neither the revisionist's claim nor that of opposite party no. 4 and opposite party no. 2 would have been adjudicated by probate Court. So the finding recorded by the learned Magistrate is perverse and not sustainable in the eye of law.
Per contra learned counsel for the opposite party nos. 2 to 5 and learned A.G.A. contended that only the legality, correctness and propriety is to be seen in the revisional jurisdiction. The impugned order has been passed under Section 145 (5) Cr.P.C. The learned Executive Magistrate was fully competent to drop or cancel the proceedings initiated earlier and accordingly on the basis of a pendency of a civil suit, the proceedings have been dropped and earlier notices under Sections 145 (1) and 146 (1) Cr.P.C. have been recalled. There is no illegality in the impugned order and the same is based on correct appreciation of facts and does not require any interference.
Having considered the submissions raised by both the parties, I have perused the lower court records.
Learned counsel for the revisionist has pressed two following points before me-:
(1) There is violation of principles of natural justice as opportunity of hearing has been denied by the trial court.
(2) The impugned order is passed behind the back of the revisionist.
It is contended that specific statutory provisions enshrined under the code of Criminal Procedure have not been followed and lastly contended that the pendency of the probate proceedings which does not adjudicate the title, this civil proceedings cannot bar the proceedings under Section 145 Cr.P.C. which is primarily based for the maintenance of peace and security of the subject matter.
In light of aforesaid arguments, it transpires from the order sheets of court below that on 29.12.2014 on the basis of report of Inspector police station Peelkhana on the satisfaction recorded by the Executive Magistrate for the disturbance of peace with regard to the immovable property, preliminary order under Section 145 (1) Cr.P.C. was issued and date was fixed for 31.12.2014. On 31.12.2014 as the notice was not served to the parties and further date 03.01.2015 was fixed. On 03.01.2015 notice issued to opposite party received back duly served and further date 06.01.2015 was fixed. On 06.01.2015 on the basis of facts and police report, attachment order under Section 146 (1) Cr.P.C. was passed. On 16.01.2015 Vakalatnama on behalf of Kalpesh Shukla, and Santosh Newatia was filed and request for supplying the copies have been made. Request was allowed and further date 27.01.2015 was fixed for hearing by the court below. On 27.01.2015 the proceedings was dropped on the basis of pendency of a civil suit No. 125/70 /14, Santosh Kumar Newatia Vs. Raj Goel pending before the Court of A.D.J. and notices issued under Section 145(1) and 146(1) have been withdrawn.
It would be relevant to mention that, perusal of the original order sheet transpires that on 27.01.2015 the revisionist has noted down further date 05.02.2015. Now the question arises that on 16.01.2015 the parties were represented through their counsel and a request to supply the copies was allowed by the Court below and further date 27.01.2015 was fixed for hearing. So prima facie, it appears that there is a denial of opportunity of hearing which is duly substantiated by the order sheet in which next date 05.02.2015 mentioned but it has not been transcribed in the order sheet. Next point I would like to mention that on being satisfaction of the police report with regard to maintain the peace and law, a preliminary order was passed and thereafter on the basis of facts and police report the property was attached under Section 146 (1) Cr.P.C. and notices were issued. Thereafter, parties have put in their appearance before the trial Court but it is not clear from the order sheet whether any written objection was filed by the parties or not and whether their contention have been taken into consideration by the trial court or not. So far as impugned order is concerned, I would like to mention the provision as contained in under Section 145 (5) Cr.P.C. The same is reproduced as under:-
“Section 145 (5) Cr.P.C.:-Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.”
Further to add that after passing preliminary order under Section 145 (1) Cr.P.C. it is mandatorily required that notices must be served to all the concerned parties and thereafter inquiry under Section 145 (4) Cr.P.C. is done and thereafter generally either order under Section 145 (5) or under Section 145 (6) should be passed and that procedure has not been followed by the Executive Magistrate concerned and further I would like to observe that there is force in the submission of learned counsel for the revisionist that probate proceeding is purely summary in nature and that does not confer any right or title to any of the parties, that point in the impugned order has also not been considered in the legal prospective and in last I would like to refer that all civil proceedings are not absolute bar to the proceedings under Section 145 Cr.P.C. that depend upon the facts and circumstances of the case. Parallel civil proceedings and criminal proceedings are permissible under the law if the facts and circumstances so requires.
In the aforesaid reasons, I am of the view that provision contained under Section 145 (5) Cr.P.C. has not been fully complied with by the trial court and there are ample proof of denial of opportunity of hearing to the revisionist. The impugned order dated 27.01.2015 under the facts and circumstances of the case are not sustainable in the eye of law and deserves to be set aside.
Accordingly, this revision is allowed and the matter is remitted back to the trial court concerned for considering the revisionist's case afresh in the light of observation made above after giving an opportunity of hearing to both the parties, expeditiously preferably within a period of two month after the receipt of the order.
Order Date :- 28.02.2018 AKT