Mrs. Jyotsna Sharma,J

1. Heard Sri Ashish Agrawal, learned counsel for the petitioner, Sri Srijan Pandey, learned Advocate holding brief for Sri Swetashwa Agarwal, learned counsel for the private respondents and Sri R.K. Gupta, learned AGA for the State.

2. This writ petition has been filed by the petitioner-Irfan Ali against opposite party no. 2-Rajeev Gupta and 4 others, challenging the order passed by the Court of Session in Criminal Revision No. 286 of 2012 (Rajeev Gupta Vs. Irfan Ali and others), whereby an order passed by the Court of Additional City Magistrate dated 29.08.2012 passed under sections 145 and 146 Cr.P.C. was set-aside.

3. The submissions of the petitioner are as below:-

• The opposite party no. 2-Rajeev Gupta filed an application before the Executive Magistrate which gave rise to a proceeding under sections 145/146 Cr.P.C. with regard to plot no. A-13, Gandhi Nagar, Moradabad and the learned Court of Additional City Magistrate, after hearing both the sides and perusal of papers on record, dropped the proceedings and released the plot in favour of the petitionerIrfan Ali. However, the order rightly passed by the Additional City Magistrate was set-aside by the Court of revision.

• The case of the petitioner is that he acquired the ownership and possession of the disputed plot on the basis of two registered sale deeds of 03.06.2011, from previous owners namely, Mohd. Furkaan, Mohd. Gurfaan and Mohd. Rizwan, all sons of Late Mohd. Jaan; this property was released in favour of aforesaid Mohd. Jaan in a Land Acquisition Reference No. 70 of 1956 by an order dated 24.03.1960. • The then S.O., Thana Galshaheed, Moradabad filed a chal report on 10.06.2011, requesting the City Magistrate for attatchment of disputed property i.e., plot no. A-13 part of gata no. 124, area 381.51 square meters; The Additional City Magistrate issued notice against them i.e., Irfan Ali and 3 others under section 145(1) Cr.P.C. by order dated 15.06.2011; the court concerned passed another order the same day under section 146(1) Cr.P.C., directing for attachment and for handing over the possession to a receiver

• Earlier, the opposite party no. 2 had filed an Original Suit no. 506 of 2011, challenging the two sale deed dated 03.06.2011 executed in favour of the petitioner, which is pending.

• Though the plaintiff opposite party no. 2-Rajeev Gupta also made a prayer for injunction, but no injunction had been granted to him;

• The petitioner filed objections against the proceedings under sections 145 and 146 Cr.P.C.

• During the pendency of the proceedings, the opposite party no. 2 had filed an application under section 145(5) Cr.P.C. expressing that no longer any apprehension of breach of peace existed, therefore the proceedings may be dropped and the property may be released; this application was moved on 22.06.2011;

• The contention is that the claim of the opposite party no. 2 having been based on unregistered, unstamped title deed dated 27.08.1957, allegedly executed by the Moradabad Cooperative Housing Society in favour of father of opposite party no. 2, no reliance could be placed on the same and therefore opposite party no. 2 has no rights from such documents.

• The Additional City Magistrate, after considering all the material, rightly dropped the proceeding and released the same in favour of the petitioner; the property was attached and handed over to a receiver from possession of Irfan Ali (the petitioner), therefore rightly released to him.

• Another ground which has been taken in this writ petition is that the court of revision had stayed the operation of impugned order dated 15.06.2011, which was being extended from time to time but was not extended after 12.07.2012, hence the finding of the revisional court on this point is not sustainable.

• The parties were asserting that there existed no longer any apprehension of breach of peace; the High Court in an Application u/s 482 No. 40653 of 2011, directed the Magistrate to decide the proceeding pending before it, within a period of three months, therefore the Magistrate decided and dropped the same by order dated 29.08.2012.

• The revisional court has wrongly held that the Magistrate is not competent to drop the proceeding and that it had no jurisdiction to go into the questions of facts, as regard Land Acquisition Reference No. 70 of 1956; the application moved under section 145(5) Cr.P.C. was pending and not dismissed.

• A civil suit no. 506 of 2011 was also pending, therefore the learned trial court/SDM rightly released the same in favour of the petitioner

• The revisional court is not at all justified in setting aside the order passed by the learned Magistrate and gave contrary finding which are perverse.

• Had the revisional court of a different view, it could have remanded the matter to the Magistrate for fresh consideration; the argument of the petitioner is that the proceeding under section 145 Cr.P.C. continued for about two years, but later on lost its significance in view of civil suits and non-existence of apprehension of breach of peace.

4. The submissions, on the other hand, of opposite party no. 2 (the main contesting party) in nutshell are as below:-

• The petitioner’s claims title and ownership of plot no. A-13 part of Gata no. 124 on the basis of copy of an order of Land Acquisition Reference No. 70 of 1956 dated 24.03.1960 which is patently a forged and fabricated document, a fact which is revealed from perusal of the paper i.e., a certified copy obtained by the answering opposite party no. 1, which is annexed with the counter affidavit, therefore he lodged an FIR case crime no. 156 of 2011 under sections 147, 420, 468, 504, 506 IPC, in which the investigating officer, after collection of evidence, filed a chargesheet against several persons including the petitioner-Irfan Ali.

• During the investigation, it was found that plot no. A-13 has been falsely shown after manipulation in the order; the criminal case is pending against the accused persons.

• In the above circumstances, two sale deed dated 03.06.2011 do not convey any right, title or possession to the petitioner as no such right, title or possession could be conveyed on the basis of non-existent title deed.

• The opposite party no. 2 filed Original Suit no. 506 of 2011 for cancellation of sale deeds; neither the vendor nor the purchaser-Irfan Ali have ever been in actual physical possession of the disputed plot;

• On the other hand, the facts are that the Governor of Uttar Pradesh gave the land to the Moradabad Cooperative Housing Society, which included Gata no. 124 and one of the plots namely, plot no. A-13 was transferred on 27.08.1957 to the father of answering opposite party no. 2. The sale deed dated 27.08.1957 is duly registered in Sub-Registrar Office;

• Though the application under section 145(5) Cr.P.C. moved on 22.06.2011 was pending but he had moved a subsequent application on 24.08.2012, for withdrawal of the aforesaid application and no order was passed by the Court of SDM on his subsequent application.

• The Additional City Magistrate passed the order in haste and ignored number of facts and circumstances. It did not let the opposite party no. 2 file objections, though he had applied for a week’s time.

• The basis on which the orders were passed, had no legs to stand; it cannot be said that the revisional court cannot take note of the fabrication of order dated 24.03.1960 passed in land acquisition reference of the suit no. 95 of 2007.

• The police acted in collusion with the petitioner; the impugned orders suffers from no illegality of the nature as my be taken note of or may be corrected in this writ petition.

5. I went through all the material on record, including the order passed by the Executive Magistrate as well as the impugned order passed by the court of revision. A few things attract attention of this Court.

(i) very first objection from the opposite side is that the petitioner has filed Misc. Writ Petition under Article 226 of the Constitution, instead he should have filed Misc. Writ Petition under Article 227 of the Constitution. On the above issue, I prefer to place reliance on the judgment of the Supreme Court in Radhey Shyam and another vs. Chhabi Nath and others, (2015) 5 SCC 423 [LQ/SC/2015/292] . In the above noted case, the Supreme Court has clearly laid down that order of judicial court could be challenged under Article 227 of the Constitution of India and not under original writ jurisdiction under Article 226 of the Constitution of India. In my opinion, there is no legal hindrance in converting the petition under Article 226 to one under Article 227 of the Constitution. I, therefore, treat this petition as one under Article 227 of the Constitution. The registry shall assign appropriate number accordingly.

(ii) the petitioner claims of ownership and possession over the property is based on two sale deeds dated 03.06.2011, executed by the heirs of Late Mohd. Jaan and the title of said Mohd. Jaan is based on Land Acquisition Reference No. 70 of 1956 order dated 24.03.1960; the petitioner has filed a copy of order dated 24.03.1960, which is Annexure no. 3. On the other hand, the opposite party no. 2-Rajeev Gupta has filed certified copy of the same order (paper no. 30 annexed to the counter affidavit) which clearly shows that this order was passed in respect of land in plot no. 59, Khata Khewat no. 33 at Prince Road, Mauza Bhadaura (which according to respondent is 800 meters away from the disputed plot) and this paper conspicuously does not mention disputed plot A-13 of Gata no. 124.

(iii) it may also be noted at this juncture that the opposite party no. 2 had taken this plea before the revisional court as well, that the document which formed the basis of claim of the petitioner is forged one and that sufficient evidence has been found by the investigating officer during the investigation of FIR case crime no. 156 of 2011 under sections 147, 420, 468, 504, 506 IPC, lodged by him and that the chargesheet has also been submitted against him and several others.

(iv) the learned court of revision observed in para no. 14 that even before the initiation of present proceeding under section 145 Cr.P.C., the petitioner’s side made earlier attempt to obtain possession of the dispute and property in an Original Suit no. 95 of 2007 on the basis of same document of Land Acquisition Reference No. 70 of 1956 order dated 24.03.1960 and how the learned Magistrate ignored the evidence with regard to very doubtful title and possession of Irfan Ali and instead gave a finding on the basis of mere police report and further observed that had those documents and evidence considered by the Magistrate, the finding would have been different.

(v) In my view, the aforesaid inference and observation of the learned revisional court are logical, well founded and based on evidence which was available on record. The observation by the revisional court that the learned Magistrate had ignored some apparent facts and evidence does not appear to be unfounded. In my opinion, where some discrepancies are apparent and ignored by the trial court, the revisional court is not powerless to set-aside the findings given on such basis. All these observations need not be disturbed by the court in exercise of powers under Article 226/227 of the Constitution.

6. Perusal of the impugned order shows that the revisional court took note of the fact that the order passed under section 145(1) Cr.P.C. had been stayed by the revisional court in Revision No. 250 of 2011, impleading both Rajiv Gupta and Irfan Ali, as opposite parties. This revision was admittedly filed by the instant opposite party no. 4, challenging both the orders dated 15.06.2011 passed under section 145(1) and 146(1) Cr.P.C. and undisputedly there was an interim stay passed by the revisional court in that revision (para nos. 6 and 7 of impugned order).

Further another observation in para no. 8 of the impugned order is that the Magistrate wrongly treated the Revision No. 250 of 2011, challenging the order under section 145(1) Cr.P.C., as a proceeding parallel to the proceeding under section 145 Cr.P.C. and the view taken by the revisional court in para nos. 9 and 10 that in Original Suit No. 95 of 2007, which was admittedly dismissed in default at initial stages, could not form basis of dropping of the proceedings, is not liable to be interfered at. It may also be mentioned that the revisional court expressed surprise over a fact that though earlier the opposite party no. 2 had moved an application for withdrawal of proceedings under section 145 Cr.P.C., but subsequently he had given an application for withdrawal of withdrawal application, a fact conveniently ignored by the Magistrate.

7. The next important debatable issue involved in this case is that admittedly an Original Suit No. 506 of 2011 has been filed by the opposite party, therefore a parallel proceeding under section 145 Cr.P.C. is bad in law. It may be noted that the instant petitioner in support of his contention relies upon the judgments i.e., Mahar Jahan and Others vs. State of Delhi and Others, 2004 13 SCC 421 [LQ/SC/2004/876] ; Ram Sumer Puri Mahant vs. State of U.P. and Others, 1984 0 Supreme(SC) 361; Smt. Prema Devi vs. State of U.P. and Another, 2007 10 ADJ 227; Aman Deep Singh Shishya vs. State of U.P. and Another, 2023:AHC:241628.

The Supreme Court in Mahar Jahan and Others (supra), in a peculiar facts and circumstances of the matter before it, took a view that there was no such emergency so as to justify invocation of powers under section 146(1) Cr.P.C. to attach the property and setaside the order passed by the S.D.M. and the High Court. In this case before the Supreme Court, the civil court has been seized of the matter since before the initiation of proceeding under section 146(1) Cr.P.C.

In Smt. Prema Devi case (supra), the application under section 482 Cr.P.C. was allowed and the proceedings under section 145 Cr.P.C. were quashed in a case where the applicant was a recorded tenureholder and was in possession and her title was not under cloud and a civil suit was pending.

In Aman Deep Singh Shishya case (supra), the Allahabad High Court found following peculiar facts and circumstances that when a preliminary order under section 145(1) Cr.P.C. was passed an interim order passed by the High Court was in existence and a civil suit was also pending, in which the possession of one of the parties was shown, therefore the court took a view that a parallel criminal proceedings under section 145 Cr.P.C. was not justified and therefore preliminary order under section 145(1) Cr.P.C. was quashed.

8. It may be noted that there is no absolute bar for initiating or for continuing the proceedings under section 145 Cr.P.C. where circumstances do call for some urgent action on the part of the State, so that the ugly situations could be averted and that public peace and tranquillity may be maintained.

9. In Sanjai Kumar and Another vs. VIth Additional District Judge, Bareilly and Others, 1996 CriLJ 2413, [LQ/AllHC/1996/64 ;] a question arose before the Allahabad High Court, whether in cases, where there is no effective interim order recording that a particular party was in possession, passed by any civil court, the proceedings under section 145 Cr.P.C. shall be dropped The Court considered that question; the relevant part of the judgement is as below:-

“4. The only material question for decision was as to whether in the absence of an effective interim order indicating possession by the civil Court in the aforesaid civil suit in favour of either of the parties to the dispute, the proceedings under Section 145, Cr. P. C. had become liable to be dropped

5. Learned counsel for the parties relied upon a few decisions of various Courts for and against on the aforesaid question and after going through the same I find that the decision which applied to the facts of the instant case was a decision of this Court reported in 1992 JIC 35, Abdul Gafoor v. State of U.P. wherein it was held that the criminal Court continued to exercise the jurisdiction under Section 145, Cr.P.C., if no effective interim order was passed in the suit pending before the competent civil or revenue Court. This Court before laying down the aforesaid proposition of law, had considered some other decisions also.”

10. The Allahabad High Court also dealt with the question of applicability of the law laid down by Supreme Court in Ram Sumer Puri Mahant vs. State of U.P. and Others; AIR 1985 SC 472 [LQ/SC/1984/340] in following manner [as differentiated in Abdul Gafoor case (supra)].

“In the case of Ram Sumer Puri, Mahant, the question of title and possession over the subject- matter had already been adjudicated and the suit had been dismissed by the Civil Judge. An appeal against the judgment and order of the Civil Judge was still pending. It was in this background that the Supreme Court did not approve the parallel proceedings under Section 145, Cr. P. C. in respect of the same subject-matter between the same parties. Thus, Sumer’s case is not an authority on the question that proceedings under Section 145, Cr. P. C, must be dropped in all cases whenever a civil suit is pending in respect of the same subject-matter between the same parties or between the parties through whom the panics are claiming their rights. Of course, parallel proceedings should not be allowed to continue, if a party under Section 145, Cr. P. C.,can seek an effective remedy/declaration from the Civil Court. Even in such a case, the proceedings under Section 145, Cr.P.C. should be dropped only when the Civil Court has passed some effective order indicating as to which of the parties was entitled to possession. In some cases, the proceedings should also be dropped when the Civil Court has appointed a receiver or has made some arrangement for the maintenance of such property. But, when the Civil Court does not clarify the position regarding the possession of the contesting parties by passing an effective order and simply passes an innocuous order like maintenance of status quo, the criminal proceedings are not to be dropped because in that case both the parties may stake their claim for possession and the situation may lead to the breach of peace. In such cases, even the proceeding under Sections 107/116, Cr.P.C. may not prove to be effective and the subject-matter may have to be attached by the Criminal Court. Of course, orders passed by the Criminal Court in such cases shall be subject to the decision of the Civil Court. Thus, the Magistrate is not bound to drop the proceedings pending in his Court in all cases under Section 145, Cr. P. C. for the simple reason that a civil suit is pending in the Civil Court in respect of the same matter between the same parties or through whom they are claiming.

6. In the instant case, Civil Court even did not pass order directing the parties to maintain status quo although the same would have been of no help as it would not have indicated the actual possession of either party. Thus, it is not a case in which any help would have been available to the Magistrate from the mere pendency of the civil suit between the parties for maintaining peace. The Magistrate was duty bound to maintain peace and, therefore, had got no alternative except to proceed further with the proceedings under Section 145, Cr.P.C. and the impugned attachment order thus appealed to be perfectly legal and valid. The proceedings under Section 145, Cr.P.C., therefore, continued to be maintainable and the Magistrate could not be directed by this Court to drop the same.”

11. A similar situation arose before the Allahabad High Court in Raj Bahadur and Others vs. State of U.P. and Another, decided on 25 July, 1994 in Criminal Revision No.1032 of 1994. In that case, the civil court had passed orders directing the parties to maintain statusquo. The S.D.M. Court had dropped the proceeding under section 145 Cr.P.C. on the ground that the dispute between the parties is pending before civil court and revenue court and interim orders were in operation between them. In revision, the learned Sessions Judge disagreed with the assertions on the ground that the orders passed by the revenue and civil court for maintaining status-quo did not and could not effectively prevent the parties from fighting for the land and property in dispute and therefore the apprehension of breach of peace remained. The High Court observed in para- 3 and 4 as below:-

“3. It is not disputed that the orders passed are only for maintaining status quo. The order passed by the civil court has already expired, as it was not extended further. The purpose and objects of the proceedings under section 145 Cr.P.C. is to maintain the law and order and to prevent the parties from taking law in their own hands which may create breach of peace. The order passed by the civil court or revenue court should be such which may effectively prevent either of the parties from entering into dispute for taking possession of the property by force. In case of an order for maintaining status quo position about possession remains vague and the parties are still left to get it decided by themselves by use of disputed property on the date the order of status quo was passed. If the proceedings under Section 145 Cr.P.C. are allowed to be dropped in such state of affairs, the objects of the preventive provisions contained in original procedure code may be defeated.

4. For the reasons stated above, I do not find it proper to make any interference in this revision. It is being left open to the parties to make an application before civil court or revenue court as the parties are advised and to pray for passing a definite order with regard to possession of the parties during pendency of the suit. If such an application is filed, same shall be considered and decided in accordance with law. After a fresh order is passed by the civil court or revenue court, it shall be open to the Magistrate to pass a fresh order. Subject to aforesaid observation/directions, this revision is rejected.”

12. This view finds strength from several judgments that it is not always that proceeding under section- 145 Cr.P.C. shall not be maintainable, if civil suits are pending.

The Supreme Court in Prakash Chand Sachdeva vs. State and Another, AIR 1994 SC 1436 [LQ/SC/1993/1077] , held that where the dispute is on the question of possession, the Magistrate is empowered to take cognizance under section 145 Cr.P.C.

The Supreme Court in Amresh Tiwari vs. Lalta Prasas Dubey, 2000 (4) Supreme 665, has clarified that it will not be right to say that a proceeding under section 145 Cr.P.C. would never lie in a case where a civil suit has been filed.

13. The Allahabad High Court in Mahant Govind Sharan Ji Maharaj vs. State Of U.P. And 2 Others; 2023:AHC:196973 has observed in para no. 25 as below:-

“25. In my firm view, the jurisdiction which a Magistrate is supposed to exercise, is quite different from the jurisdiction which a Civil Judge may exercise. In both the cases, the question of possession is important but the aim and objective, is different. The civil court is concerned with the righteousness of once claim whereas the Magistrate is concerned with the maintenance of peace and tranquillity between the parties as well as for the society. In my view wherever there is an apprehension with regard to breach of peace and no effective order is in existence or has already been passed or may be passed by the civil court, interim or otherwise, the utility of the provisions like section 145 Cr.P.C. cannot be undermined. There may be instances where exigencies of a situation may require the authorities to interfere immediately and that may precisely the case where section 145 Cr.P.C. will come into play, notwithstanding the pendency of any civil suit.”

14. In the instant case, the question of de-facto possession of opposite party no. 2, at the time of initiation of proceeding or two months prior to that is quite important. The admitted factual position is that the proceeding under section 145 Cr.P.C. commenced on 10.06.2011 and preliminary order under section 145(1) Cr.P.C. and order of attachment under section 146(1) Cr.P.C., as regard the attachment of subject of dispute, appointment and delivery of possession to the receiver was passed on 15.06.2011. Very forceful and vehement contention of opposite party no. 2 is that this measure was taken by the authorities in collusion with the petitioner-Irfan Ali, who had no basis for the claim, as regard possession and entitlement. The false and spurious claim of the petitioner was acted upon by the authorities and his bonafide pleas and papers were discarded. Further in such circumstances, he was compelled and had no option but to file a civil suit for cancellation of sham sale deeds. This civil suit was filed about two weeks after commencement of the proceedings under section 145 Cr.P.C. Admittedly, there has not been any interim order of any civil court, restraining any party from interfering in any others possession or to maintain status quo or showing factual position of the de-facto possession of either of the parties.

In the above senerio and in my opinion whether any apprehension of breach of peace exist and there is no need for taking any urgent action, the aggrieved person has to depend on the Executive authorities for redressal by taking recourse to proceeding under sections 145 and 146 Cr.P.C. It may be noted, as held and referred to above in Mahant Govind Sharan Ji Maharaj case (supra), a civil court is concerned with the righteousness of one’s claim whereas the Magistrate while exercising powers under the provisions of sections 145/146 Cr.P.C. is concerned with the maintenance of peace and tranquillity between the parties as well as in the society. And whenever there is an apprehension of breach of peace and there no effective order passed by a civil court is in existence, the utility of provisions under sections 145/146 Cr.P.C., cannot be underestimated. In a civil case as well as in a case of the nature of sections 145 and 146 Cr.P.C. the question of de-facto possession is important but the aim and objective is different. It may also be significantly be noted that it is for the authorities to take stock of the situation and give a finding whether there existed any apprehension of breach of peace and then take a decision for dropping the proceeding. The Executive Magistrate cannot depend upon a mere assertion of any of the parties.

In my opinion, the revisional court rightly set-aside the order passed by the Additional City Magistrate. Moreover, the petitioner has, in my view, not able to convince this Court that there existed manifest and patent violation of law which should be corrected by this High Court in exercise of its powers under Article 226/227 of the Constitution. In my opinion, no case for interference in the impugned order is made out and this petition is liable to be dismissed and is dismissed accordingly.

15. The interim order is hereby vacated.

16. As the matter is quite old, therefore learned trial court/Executive Magistrate concerned is directed to take up the matter expeditiously and comply with the order of the revisional court dated 08.05.2013.