JUDGMENT Ravindra Singh, J.
1. Heard Sri O.P. Singh, learned counsel for the petitioner, Sri K.K. Tripathi, learned counsel for the respondent Nos. 3 & 4 and the learned A.G.A.
2. This Writ Petition has been filed against the order dated 10.1.2005, passed by the learned Addl. City Magistrate-I, Kanpur, Nagar under Section 145(1) Cr.P.C. and 146(1) Cr.P.C., whereby the property in dispute was attached and the same was given in the Supurdagi of respondent No. 5, Tejendra Singh Inspector of Police Station Govind Nagar, District Kanpur Nagar and the order dated 17.1.2005 passed by the learned Sessions Judge, Kanpur Nagar in Crl. Revision No. Nill of 2005, whereby the revision filed by the petitioners was dismissed.
3. The facts of the case giving rise to this petition, in brief, are that on 5.9.2005, the respondent No. 5 submitted a Challani report in the court of learned A.C.M.-I, Kanpur Nagar and a case was registered as Case No. 1167 of 2004 State v. Gopal shukla and Ors. under Sections 107, 116 and 151 Cr.P.C. On the same day, the petitioner and others furnished their personal bond in the aforesaid case and on the same day, the respondent No. 5 has put the lock on the main gate of the building of Sri Amreshwar Mahadev Trust, 224/21 Block -E, Govind Nagar, Kanpur Nagar without taking any order from the competent authority. The property in dispute is the entire building / land of Amreshwar Mahadev Trust attached with the temple of Sri Amreshwar Mahadev.
4. It is contended by the learned counsel for the petitioner that there was a dispute amongst the members of the Executive Committee of the Trust. The petitioner is Mahamantri of the aforesaid trust and one Sri Krishna Chandra Gupta is the president of the aforesaid trust. The respondent No. 3 Sri Shankatha Prasad is the member of the executive committee of the aforesaid trust. It is said that there was a dispute over the income and expenditure of the trust. In respect of the same dispute, the police has submitted a challani report against the petitioner and others on 5.9.2004. The respondent No. 5, the inspector of Police Station Govind Nagar, District Kanpur Nagar had locked the main gate of the said trust property including the temple of Lord Shiva without any rhyme and reason on 5.9.2004 Due to the aforesaid action of the respondent No. 5, nobody was permitted to enter in the premises of the said trust, even the Pujari of the temple was not permitted to do the worship of Lord Shiva. The aforesaid trust has been established for religious and charitable purposes in the interest of public. In its establishment, there is a temple, library, hospital. Dharamshala and Baratshala. The petitioner being the Mahamantri of the said Trust made a complaint to the S.S.P. Kanpur Nagar against the respondent No. 5 with a prayer that the lock of the trust property may be opened but no step was action by the S.S.P. Kanpur Nagar then the petitioner on behalf of the Trust filed Civil Misc. Writ Petition No. 47520 of 2004 before this Hon'ble Court in which Sri Tejendra Singh was also arrayed as respondent No. 5. After hearing both the parties, the Division Bench of this Hon'ble Court passed an order dated 10.11.2004 and a direction was issued to the respondent No. 5 to open the lock of the main gate of the temple forthwith. In pursuance of that order, the lock of the main gate of the temple was opened by the respondent No. 5 on 11.11.2004 and since then the petitioner being the Mahamantri of the trust came in actual possession over the property of the trust. It is further contended by the learned counsel for the petitioner that the central hall of the trust was booked for the purposes of Tilak, Marriage and other religious and cultural program on the payment of fixed nominal charges for 25.11.2004, 26.11.2004, 1.12.2004 and 5.12.2004, which had taken place smoothly under the control and supervision of the petitioner and no hindrance was created by any person of the executive committee. The president and many other members of the Executive Committee of the Trust have given an application to the Police Station Govind Nagar regarding the good conduct and honesty of the petitioner in performing his duties as Mahamantri of the Trust on 16.9.2004. The respondent No. 3 moved an application under Section 156(3) Cr.P.C. against the petitioner and others in the court of 9th A.C.M.M. Kanpur Nagar on 1.10.2004. On that application, the police report was called for from the police station Govind Nagar and the same was submitted on 7.10.2004, Thereafter, on 14.10.2004, an application under Section 156(3) Cr.P.C. filed by the respondent No. 3 was allowed. The learned A.C.M.-I, Kanpur Nagar passed an arbitrary order dated 10.1.2005 under Section 145(1) Cr.P.C. on the basis of the police report dated 6.9.2004 and the parties concerned were directed to appear before his court on 8.1.2005 and to submit their objections/ evidences through their counsel in support of their claim with regard to the management of the aforesaid Trust. On the same day, the learned A.C.M.-I, Kanpur Nagar passed an order under Section 146(1) Cr.P.C. by which the building / land of the aforesaid Trust was attached and respondent No. 5 Mr. Tejendra Singh was appointed as receiver and he was directed to submit report before 18.1.2005.
5. It is further contended that there was no other complaint/ evidence to show that there was any dispute between the parties, like to cause a breach of peace, even then the learned Magistrate passed the order dated 10.1.2005 under Section 145(1) Cr.P.C. and the parties were directed to appear in the Court on 18.1.2005 but without any evidences to show that there was any emergency i.e. serious or dangerous situation calls for an immediate action to pass the order under Section 146(1) Cr.P.C., even then the ACM-I, Kanpur Nagar passed an order under Section 146(1) Cr.P.C. on 10.1.2005. Both the orders under Sections 145(1) Cr.P.C. and 146(1) Cr.P.C. were passed simultaneously on 10.1.2005.
6. It is further contended that in the present case, the proceedings under Section 145 Cr.P.C. are not maintainable and the impugned order dated 10.1.2005 passed y the learned ACM-I Kanpur Nagar under Sections 145(1) and 146(1) Cr.P.C. are illegal. The learned revisional court also did not consider the manifest errors as mentioned above committed by the learned ACM-I, and dismissed the revision filed by the petitioner on 17.1.2005, which is also illegal and is liable to be set aside by this Court.
7. It is opposed by the learned A.C.I.A. and Sri K.K. Tripathi, learned counsel for the respondent No. 3 & 5 by submitting that there was a dispute between the parties and the petitioner is not a Mahamantri of the aforesaid trust because after the year ,2000 no election of the executive body was held and the petitioner is misappropriating the property of the trust and the functioning of the trust was not in accordance with the bye-laws of the Trust. It is further contended that there was a dispute between the parties likely to cause a breach of peace. The learned ACM-I, Kanpur Nagar was satisfied with the police report that there was a situation of the emergency to pass an order under Section 146(1) Cr.P.C. so there was no illegality in passing the orders under Sections 145(1) and 146(1) Cr.P.C. on 10.1.2005 and attaching the property by appointing the receiver. The learned Sessions Judge also considered all the facts and circumstances of the case and passed a reasoned order by dismissing the revision filed by the petitioner. The order dated 17.1.2005 passed by the learned Sessions Judge, Kanpur Nagar is a perfect order and it requires no interference.
8. From the perusal of the impugned orders, it appears that learned magistrate passed both the impugned orders simultaneously on 10.1.2005 on the basis of police report dated 6.9.2004 the same day and there was no other material before the learned Magistrate for his satisfaction that there was any emergency i.e. serious or dangerous situation and there was no material to show that none of the parties was in the possession of the property in dispute and there was no situation for which the learned Magistrate was unable to satisfy himself as to which of the party was in possession of the property in dispute. Even then, the learned Magistrate passed the order under Section 146(1) Cr.P.C. attaching the property in dispute and appointing the receiver.
9. From the perusal of the evidence, it is clear that even on the police report dated 6.9.2004, the petitioner being the Manhamantri of the aforesaid trust was looking after the affairs of the trust and he was maintaining the account of the trust also , as such, he was in possession of the property in dispute. The lock of the main gate of the temple was opened on 11.11.2004 in pursuance of the order dated 10.11.2004 passed by the Division Bench of this Court . Thereafter, the petitioner was looking after the affairs of the trust and there was a smooth functioning of the trust and in the supervision of the petitioner, many public functions were successfully organized in the premises of the property in dispute. It shows that on 10.1.2005, the petitioner being Mahamantri of the Trust was in possession of the property in dispute. Even then, the learned ACM-Ist, Kanpur Nagar passed an order on 10.1.2005 under Section 146(1) Cr.P.C. attaching the property and appointing the receiver. It shows that the learned ACM-I, did not apply his judicial mind and passed the orders in routine and mechanical manner without considering the facts and circumstances of the case but relying upon the police report, which was submitted in the Court about 4 months back, and he did not consider the fact that the Division Bench of this Court has passed the order directing the respondent No. 5 to open the lock of the main gate of the temple and thereafter, the petitioner was looking after the affairs of the trust peacefully and there was no complaint or other material for his satisfaction to pass the order under Section 146(1) Cr.P.C. after police report dated 6.9.2004, the circumstances were changed, as discussed above, so it was not proper to initiate the proceedings under Section 145 Cr.P.C. on the basis of such old police report, therefore, the order dated 10.1.2005 passed by the learned ACM-I, Kanpur Nagar under Section 145(1) and 146(1) Cr.P.C. are illegal. The learned Sessions Judge also did not consider the above mentioned manifest errors committed by the learned ACM-I, Kanpur Nagar and without applying his judicial mind, dismissed the revision filed by the petitioner on 17.1.2005 as not maintainable.
10. In view of the facts and circumstances of the case and the submissions made by the learned counsel for the petitioner, learned counsel for the respondent Nos. 3 & 4 and the reasons referred above, the impugned order dated 10.1.2005 passed by the learned ACM-I, Kanpur Nagar under Section 145(1) and 146(1) Cr.P.C. in Case No. 2 of 2005 and the order dated 17.1.2005 passed by the learned Sessions Judge, Kanpur Nagar in Crl. Revision No. Nill of 2005 are illegal and are set aside and the learned ACM-I, Kanpur Nagar is directed to restore back the possession of the property in dispute, to the petitioner being the Mahamantri of the Trust, forthwith.
11. Accordingly, this petition is allowed.