Court No. - 49
Case :- APPLICATION U/S 482 No. - 19572 of 2018 Applicant :- Manisha And 2 Others Opposite Party :- State Of U.P. And 12 Others Counsel for Applicant :- Ajeet Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicants and learned A.G.A. for the State as also perused the record.
The present 482 Cr.P.C. application has been filed against the order dated 02.05.2018 passed by the Sub-Divisional Magistrate, Bansdih, Ballia in Misc. Case No. 05 of 2018 under Sections 145 (1) and 146(1) Cr.P.C., Police Station Sahatwar, District Ballia.
Learned counsel for the applicants submits that the proceedings under Section 145 Cr.P.C. had been instituted. The preliminary order passed under Section 145 (1) Cr.P.C. and 146 (1) Cr.P.C. by which the property in dispute had been attached by the Sub- Divisional Magistrate, Bansdih, Ballia were passed.
It is submitted that the opposite party nos. 2 to 7 and the present applicants are co-sharers in the property in dispute. Earlier the opposite parties had instituted a suit for partition, which is still pending. During the pendency of the suit the said opposite parties have executed certain sale deeds in respect of the some portion of the land claimed to be falling in their share.
It is then submitted that upon similar sale deed being executed by the present applicants, the proceedings under Section 145 Cr.P.C. have been instituted by the opposite party no.2. On the same date when the learned Magistrate issued a preliminary order under Section 145 (1) Cr.P.C. he proceeded to attach the property under Section 146 (1) Cr.P.C. though there was no emergency existing to warran such attachment of the property.
It is further submitted that the police report has been prepared and the order have been passed by the Sub-Divisional Magistrate only on an apprehension as to breach of peace but there does not exist any emergent condition or circumstance to warrant such action.
At the same time, it appears that the order under Section 145 (1) Cr.P.C. and the order under Section 146 (1) Cr.P.C. have been passed on 02.05.2018 on exparte basis and the proceedings are still pending.
Also, it is submitted that The proceedings under Section 146 (1) Cr.P.C. are not maintainable because admittedly the parties to the dispute, are all are co-sharers and civil suit is pending.
Considering the above, no useful purpose would be served in keeping this application pending or issuing notice to the opposite parties in view of the order proposed to be passed.
The present application is thus disposed of with a direction that in the event the applicants filing an objection to the order passed under Section 146 (1) Cr.P.C. within two weeks from today alongwith a certified copy of this order, the learned Sub- Divisional Magistrate shall consider the said application and re- decide the same after notice to the opposite parties, as expeditiously as possible, necessarily within a period of three months therefrom.
For a period of three months, the order passed under Section 146 (1) Cr.P.C. dated 02.05.2018 shall continue to operate. However, beyond that period, the order may operate only in the event of objection to be filed by the applicants. Also, the learned Magistrate may make all efforts to conclude the proceedings under Section 145 (1) Cr.P.C. as expeditiously as possible, preferably within a period of four months from the date of production of a certified copy of this order.
Order Date :- 30.5.2018 Lbm/-