Court No. - 41
Case :- CRIMINAL MISC. WRIT PETITION No. - 10257 of 2005 Petitioner :- Krishna Kumar Respondent :- Special Judge/Addl. Session Judge, Bijnor And Otherss Counsel for Petitioner :- M.A. Khan Counsel for Respondent :- Rajiv Sisodia,A.G.A.
Hon'ble Aniruddha Singh,J.
1- Heard learned counsel for the petitioner, learned A.G.A. and perused the record. Learned counsel for the respondent is not present.
2- This criminal writ petition has been preferred by the petitioner against the order dated 19.9.2005 passed by Special Judge/Additional Sessions Judge, Bijnor in Criminal Revision No.94 of 2004 whereby the impugned order passed by Pargana Magistrate, Nagina dated 20.4.2004 was passed in favour of the petitioner.
3- In nutshell, the brief facts of the case are that one application under Section 145 Cr.P.C. was moved and the case was registered as case no.4 of 2002 by Jagdish and Gyanpur against Krishna Kumar and others and that was decided by Pargana Magistrate, Nagina vide order dated 20.4.2004 in which it was held that possession of second party Krishna Kumar and Hori Singh was found and the proceeding was dropped. Against that order, one criminal revision no. 94 of 2004 was filed and was decided by Special Judge/Additional Sessions Judge, Bijnor vide order dated 19.9.2005 whereby it was held that finding of fact given by the trial court was wrong and impugned order was set aside and it was also observed that one civil suit between the parties is pending before the Civil Judge (Junior Division), Nagina, hence proceeding under Section 145 Cr.P.C. is not maintainable.
4- Learned counsel for the petitioner submitted that in the proceeding under Section 145 Cr.P.C., it was found that the petitioner was in possession and that order was quashed, therefore, the property may be treated as attached as preliminary order was passed under Section 145 Cr.P.C.
5- It is made clear that it will not be presumed that the property in question is attached on the date and it is also made clear that by the revisional court it has not been held that who is in the possession, hence it will be treated that there is no finding of any court regarding the possession over the property in dispute.
6- It is also pertinent to mention that because no finding about the possession has been given by the revisional court and impugned order passed by the Pargana Magistrate, Nagina was quashed, therefore, there is no finding on the point of possession in favour of any party and if any question is raised before the competent court on the point of possession, the competent court will be at liberty to decide the issue afresh on the point of possession by its own manner after adducing all the necessary evidences by both the parties.
7- Learned counsel for the petitioner placed reliance of this Court in the case of Shyoraj Singh & others Vs. Bhuwan & others, reported in 2005 [1] AAR 519 (IIC).
8- From perusal of the case law cited by the learned counsel for the petitioner, it is very clear that this Court has held that when the civil court decide the issue of possession then no proceeding under Section 145 Cr.P.C. will lie because at present no finding has been given by the civil court in favour of any party. Hence, on the point of possession, the competent court can give its finding and the decide the issue.
9- This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. The present writ petition lacks merit and is liable to be dismissed. Hence dismissed.
10- It is made clear that there is no finding of any court about the possession of property in dispute and the competent court will decide the case after adducing all the necessary evidences by both the parties on the point of possession. If the parties file a case on the point of possession before the competent court, the competent court shall proceed to decide the case afresh without being influenced the observations made by this Court, as indicated above.
9-Copy of this order be transmitted to the court concerned to proceed in accordance with law.
Order Date :- 17.9.2018 OP