By means of this petition under section 482 of Code of Criminal Procedure(for short 'Cr.P.C.') the petitioners have sought for quashing the impugned orders dated 16.05.2006 passed by learned City Magistrate, Faizabad in Case No.24 of 2006 (Ranjeet Singh and another Vs. Smt. Padma Agarawal and others), under Sections 146(1), Cr.P.C.(Annexure-10) after initiating proceedings under section 145 Cr.P.C.,whereby the property, under the tenancy of the petitioners, has been attached.
From the perusal of the record, it reveals that this matter was reported by police to be an emergent case of breach of peace with regard to the possession over tenanted portion of petitioners on the basis of application of respondent no.2 Brijraj Agrawal (Annexure-6). The learned Executive Magistrate after satisfying with the report in the light of application submitted by the police (Annexure-8) initiated the proceedings under Section 145, Cr.P.C. by issuing order under Section 145(1) Cr.P.C.(Annexure-7) and also passed an order under Section 146(1), Cr.P.C. directing the attachment of property as an interim measure.
It has been disclosed in the order of initiating proceedings under section 145 Cr.P.C. and also in the order of attachment under section 146(1) Cr.P.C. that eastern portion of the house in question has been let out by second party/respondents No.1 to 3 to Ranjeet Singh first party/petitioner, as such , being tenant of the premises in question the first party/petitioner is running a school, namely, Tiny Tots Vidayalaya since 1991.The landlord second party/opposite party no.1 to 3 wanted eviction of first party/petitioners.
The petitioners filed an application under section 145(5) Cr.P.C.(Annexure-9) that the petitioners are in possession over the property as tenant and running school therefore proceedings under section 145 Cr.P.C. be dropped and attachment be with-drawn The orders under section 145(1) and 146(1) were challenged by respondents no.1 and 2 in a Criminal revision no.152 of 2006 under section 397 Cr.P.C. before Sessions Judge Faizabad. The learned Sessions Judge vide its order dated 19.7.2006 dismissed the revision with following observation;
" I do not wish to enter into the merits of this contention. Parties may raise respective contentions before City Magistrate,who will pass the order in accordance with law. No interference is warranted at this stage with the impugned order as revision is not maintainable. Consequently, the revision has to be dismissed."
After the aforesaid revision the petitioners filled this petition under section 482 Cr.P.C. wherein the proceedings pending before City Magistrate were stayed vide order dated 28.7.2006.
Heard Sri Amarjeet Singh Rakhra, the learned counsel for the petitioners, Sri S.K.S. Kalhan, learned counsel for the Respondents and learned A.G.A. for the State.
It has been submitted that in respect of tenanted property proceedings uder Section 145 Cr.P.C. could not be initiated because there shall not be a dispute relating to possession in between land lord and tenant. More over a civil suit is pending in respect of the property in dispute in between the parties wherein interim protection has been granted by the District Judge in appeal. The respondents after concealing the aforesaid facts in its application obtained the impugned order. Thus , the continuance of proceedings under section 145 Cr.P.C. are abuse of process of law in view of pronouncements of Apex Court in Mahar Jahan V. State of Delhi (2004) 13 SCC421, Ranvir Singh V. Dalvir Singh (2002) 3 SCC 700, Mahant Ram Saran Dass V. Harish Mohan(2001) 10 SCC 758 and Ram Sumer Puri Mahant V. Sate of U.P. (1985) 1 SCC 427.
It has been submitted by learned counsel for respondents that the injunction granted exparte by the civil court has been vacated by the civil court on merit. (However stay granted by appellate court has not been disputed). It was further submitted that mere pendency of Civil suit by itself is not a bar to initiate the proceedings under section 145 Cr.P.C. The school was running jointly by the parties and not exclusively by the petitioners.
It is well settled principle of law that proceedings under Section 145, Cr.P.C. cannot be initiated in respect of such property over which possession is not in dispute. The question of possession would not at all be in dispute between landlord and tenant and tenant cannot be deprived of from possession over tenanted premise during the continuance of tenancy.
In cases of lease of immovable property the actual physical possession is handed over to the tenant for enjoyment of the leased property. So in such cases, question of possession of tenant over tenanted property cannot be disputed specially by the landlord during continuance of lease.
Even in the cases of dispute relating to inseparable joint possession of the parties proceedings under section 145 Cr.P.C could not be initiated, as held in Ram Subhag Pandey V. State of U.P.,2001 Cr.L.J. 2891 (All).
In a Full Bench decision of this Court in Munna Singh @ Shivaji Singh and others Vs. State of U.P. and another; 2011 (3) JIC 628 (All)(FB), it has been held that orders passed under Sections 145(1) and 146 (1) Cr.P.C. are not always be treated as interlocutory orders. In each case, after considering the factual matrix of the case, court has to decide the controversy. If there appears to be a case of misuse of power by the learned Magistrate or a case of jurisdictional error in exercising the jurisdiction by Magistrate or a case where in exercise of its jurisdiction the Magistrate proceeded after ignoring the well settled principals of judicial discretion, this Court should interfere to prevent the abuse of process of court or otherwise to serve the ends of justice.
It is not in dispute that a civil suit was already pending in respect of possession over the property in dispute and interim order was operating on the date of initiating the proceedings under section 145 Cr.P.C and issuing order of attachment. It is also not in dispute that school was running in the property in question when the proceedings under section 145 Cr.P.C. were initiated.
In view of the facts and circumstances of this case and the discussion made here in above I am of the firm view that the proceedings initiated by the Learned Magistrate under section 145 Cr.P.C. are abuse of process of court and ought to be quashed. Thus, this petition deserves to be allowed.
Consequently the Petition is allowed. The impugned orders dated 16.05.2006 passed under Sections 145 (1) and 146(1), Cr.P.C by learned City Magistrate, Faizabad are set aside. The proceedings of Case No.24 of 2006 (Ranjeet Singh and another Vs. Smt. Padma Agarawal and others), under Sections 145 Cr.P.C. pending in the court of learned City Magistrate, Faizabad in pursuance of the aforesaid orders are quashed. The interim order passed by this Court stand discharged.
Order Date :- 8.10.2014 akverma