Court No. - 72
Case :- APPLICATION U/S 482 No. - 6710 of 2019 Applicant :- Prem Vijay Kumar William Richards Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Pradeep Kumar Pal Counsel for Opposite Party :- G.A.
Hon'ble Ajit Kumar,J.
Heard learned counsel for the applicant, Sri P.C. Srivastava, learned counsel appearing for the opposite party no. 2 and learned Additional Government Advocate.
This application under Section 482 of Code of Criminal Procedure is directed against the order dated 05.02.2019, whereby, the City Magistrate, Gorakhpur has recalled his earlier order of attachment dated 10.01.2019 and directed the parties to lead evidence for final order to be passed on merits under Section 145 read with Section 146 Cr.P.C.
The argument advanced on behalf of the applicant is that the order of attachment was earlier passed on 10.01.2019 considering the police report while issuing notice under Section 145(1) Cr.P.C. However, on an objection being filed for recall of the order by the opposite party no. 2 on 01.02.2019, the learned Magistrate did not afford any opportunity to the applicant to file objection to the said application and passed the order impugned recalling the earlier order, which according to him, is an order passed in gross violation of principles of natural justice. Learned counsel for the applicant has also drawn the attention of this Court towards the application dated 05.02.2019 filed by the applicant before the learned Magistrate, for affording an opportunity to file objection before passing any order on the application of the opposite party no. 2, however, the learned Magistrate proceeded to recall the order on 05.02.2019 itself.
Per contra, the argument advanced by learned counsel for the opposite party no. 2 Sri P.C. Srivastava is that the order earlier was passed only because of the concealment of facts with regard to the proceedings undertaken by the opposite party no. 2 for declaratory rights in respect to the land in question which is still pending and therefore, if the order has been obtained by concealment of material facts, the learned City Magistrate is well within its jurisdiction to recall such an order. He further contends that the question of conducting proceedings under section 145 read with 146 Cr.P.C. is only to maintain peace of on the spot with regard to possession of parties and the court shall therefore, only inquire into as to who amongst the rival parties is in possession to maintain the same. He has relied upon the judgment of Supreme Court in Ashok Kumar v. State of Uttarakhand & Ors (2013) 3 SCC 366 decided on 13.12.2012, in the judgment vide para 7 of the judgment the Apex Court has held that while dealing with the issues of possession and maintenance of peace, the Court exercising power under Section 145 and 146(1) Cr.P.C. shall only confine his inquiry to the actual physical possession while deciding merits of the claim of the parties.
Having heard learned counsels for the parties and their arguments across the Bar and having perused the record, I find that the order dated 05.02.2019 though mentions that certain proceedings were already pending and which were not brought to the notice and therefore, court fell in serious error in passing the earlier order of attachment but in the entire order there is no recital to the effect that any opportunity was afforded to the present applicant to file objection to the application filed by opposite party no. 2. It is a settled proposition of law that while exercising judicial power, the court has not to shelve the proper procedure to be followed to wit, not only considering the application but inviting objections on such application from the other side. A oral hearing of the matter is always in support of pleadings raised if there are no pleadings, then oral hearing is of no significance and therefore, in my considered opinion, the learned Magistrate manifestly erred in passing the order without giving time to the applicant to file objection to the application of the opposite party no. 2, more especially when an application to that effect was moved by applicant on 05.02.2019 itself.
At this stage, learned counsel for the opposite party no. 2 submits that after the attachment order was recalled on 05.02.2019, the opposite party no. 2 who was already in possession of a residential accommodation therein continues in possession and pursuant to the order imupgned the effective delivery of possession had taken place on 07.02.2019.
In view of the above, while setting aside the order dated 05.02.2019, I hereby direct the court below to consider the objection of the present applicant upon application of opposite party no. 2 which he shall file by 06.03.2019. Thereafter, he shall proceed to pass the order on the application of the opposite party no. 2 on merits or if he thinks fit and proper, he may decide the proceedings itself within a stipulated period of time, as expeditiously as possible. During pendency of the application of the opposite party no. 2 as the order dated 05.02.2019 is hereby quashed, the status quo with regard to possession and nature of land shall be maintained by the parties. It is further made clear that no third party rights will be created in respect of the property in question during the proceedings u/s 145 and 146 of Cr.P.C..
The application is disposed of with the aforesaid observations and directions.
Order Date :- 22.2.2019 IrfanUddin