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Judgment
P.N. Bakshi, J.—This revision arises out of the proceedings u/s 145 Code of Criminal Procedure. This litigation has a long chequered history, it appears that proceedings u/s 145 Code of Criminal Procedure were initiated before the SDM on the application of Murali dated 17th March, 1981 with respect to the Petrol Diesel Pump Annpurna Filling Station installed in Machhali Shahar on Allahabad-Jaunpur road. The allegation was that Paras Nath opposite party wanted to take forcible possession of the property with the assistance of undesirable persons and that there was an apprehension of breach of peace. Considering the case one of emergency, the Sub Divisional Magistrate directed attachment of the petrol pump u/s 146(1) Code of Criminal Procedure vide its order dated 18th March, 1981. An application was filed thereafter by the Indian Oil Corporation through Mr M.C. Sahgal, alleging that Paras Nath was an authorised dealer and that Murali was neither owner of the land; nor the Petrol Pump, but merely a servant employed at the Pump. It is also alleged that there was no apprehension of breach of peace and the proceedings were liable to be dropped. The applicant claimed to be a person interested within the meaning of the aforesaid expression u/s 145 Code of Criminal Procedure. On 2-6-1981, the Sub Divisional Magistrate dropped the proceedings u/s 145 Code of Criminal Procedure. He vacated the order of attachment and directed release of the petrol pump in favour of the Indian Oil Corporation and the land on which the petrol pump stood in favour of Paras Nath. Aggrieved thereby Criminal Revision No. 740/81 was filed in this Court. Hon''ble N.N Sharma, J. allowed the revision, set aside the order of the SDM dated 2-6-81 and remanded the case to the Magistrate to be dealt with in accordance with law under the provisions of Section 145 (4) & (5) Code of Criminal Procedure vide his order dated 4-12-1981. An application was filed thereafter in the High Court on behalf of the Indian Oil Corporation for recalling the order of this Court dated 4-12-1981 on the ground that the Indian Oil Corporation had not been impleaded as a party in the said revision and the order had been passed behind its back Hon''ble N.N. Sharma, J. rejected this application on 30th April, 1982, holding that his order passed in revision was not liable to be recalled and that it was open to the Indian Oil Corporation to agitate the question whether it was interested party or not in proceedings before the trial court.
The Sub Divisional Magistrate then proceeded to decide the case u/s 145(4)(5) Code of Criminal Procedure. Again an objection was filed before the Sub Divisional Magistrate by the Indian Oil Corporation claiming to be a person interested and praying that the order of reattachment of property be recalled and proceedings u/s 145 Code of Criminal Procedure be dropped. Paras Nath also filed an application before the Sub Divisional Magistrate on 13-9-82 in which be also alleged that there was no apprehension of breach of peace and the proceedings u/s 145 Code of Criminal Procedure were not maintainable and they should be dropped. The Sub Divisional Magistrate repelled the contentions of the Indian Oil Corporation as well as of Paras Nath vide its order dated 16-5-83. Paras Nath appears to be satisfied with the order of the SDM inasmuch as he did not file any revision before this Court, but the Indian Oil Corporation being dis-satisfied filed the instant revision No. 1033 of 1983, in which Murali and Paras Nath were both impleaded as the opposite parties.
It may be worth while to mention that In the Impugned order dated 16-5-83, the Sub Divisional, Magistrate after considering the comperative cases of the parties, as set out by them came to the conclusion that the apprehension of breach of peace continues to exist. He was also of the view that since the Indian Oil Corporation did not claim to be in possession but has put-forward the case that possession be delivered to Paras Nath, it was not a person interested within the meaning of Section 145(5) Code of Criminal Procedure.
Counsel for the applicant viz. Indian Oil Corporation, has argued that the impugned order passed by the Sub Divisional Magistrate dated 16-5-83 is illegal and erroneous and that the Indian Oil Corporation was a person interested in the aforesaid dispute. It is submitted that actual physical possession of the disputed property was not a necessary condition for holding that the Indian Oil Corporation was not a person, interested and thus not entitled to file objection u/s 145(5) Code of Criminal Procedure. In support of his contention, learned Counsel has referred to a number of cases. To begin with, the applicant''s counsel has attempted to distinguish my decision reported in Mahanth Vishwanath Das v. Pancham 1972 AWR 685. I have perused that case. Apart from the question dealt therein, I had also in that case considered the meaning of the expression ''person interested''. In doing so I had considered the various Sub-sections of Section 145 Code of Criminal Procedure and bad come to the conclusion that since Section 145 Code of Criminal Procedure deals with disputes concerning Immovable property which are likely to cause a breach of peace and since In such proceedings the court was not concerned with the title of the parties, but merely with the possession of the parties over the disputed land, it was necessary that the person who claimed to be interested in such proceedings must be a person claiming possession of the property. u/s 145(1) Code of Criminal Procedure the parties were required to file their written statements with respect to the factum of actual possession. In other words my decision was that to be a person interested, one must claim to be in possession of the property in dispute I still adhere to that view of law taken by me more than 10 years ago No case of our court or any other court has been cited by the applicant''s counsel arising out of the proceedings u/s 145 Code of Criminal Procedure in which a different interpretation of the expression ''person interested'' may have been given.
The applicant''s counsel has, however, cited before me a decision of the Supreme Court reported in Sunder Lal Vs. Paramsukhdas, page 366, in which also that court has dealt with the expression ''person interested''. That was not a case arising out of Section 145 Code of Criminal Procedure. It was a case arising out of the Land Acquisition proceedings. It is well known that in land acquisition proceedings a person who may not be in possession of the property, yet he can claim compensation For instance if he is a co-sharer in the property or a coparcener in such property, he will have a claim to compensation of the property. In these circumstances a co-sharer or a coparcener who is out of possession is still entitled to a share in the property and would thus be entitled to claim compensation. In these circumstances the expression ''interested person'' as used under Land Acquisition Act would include not only persons in possession of the property but also persons who have a title or share to the property which is being acquired, even though he may not be in possession. Persons in possession and persons out of possession would both be person interested within the meaning of that Act. This analogy of the Supreme Court is not at all applicable to the facts of the present case and cannot serve as a guide for defining the expression "person interested" as contemplated u/s 145(5) of the Code of Criminal Procedure.
The applicant''s counsel has placed before me a Division Bench decision of this Court Ganga Singh Vs. Raj Bahadur Singh and Others, . I have carefully perused this decision also. In my opinion, this case has no bearing on the point in controversy. The applicant''s counsel has next cited a decision of this Court Kanhaiya v. Hari Mohan 1973 AWR 432. That was the case of joint possession and this Court held that proceedings u/s 145 Code of Criminal Procedure could not be made applicable in case of joint possession. This decision again has no bearing on the point in question.
The applicant''s counsel has argued that even In the case of partnership, Section 145 Code of Criminal Procedure would not apply. In this connection he has referred to the complaint and the statement of Murall recorded after filing the complaint. Whether there was a partnership or not, would depend upon the facts of each case which have to be established from the evidence on record. The stage for leading evidence has yet to come. The SDM, in view of the aforesaid objection could not embark upon the inquiry concerning possession as contemplated u/s 145(4) Code of Criminal Procedure. Therefore, it is premature to consider this objection. The Magistrate has held that the apprehension of breach of peace continues to exist. He will now record the evidence of the parties and only thereafter can he come to the conclusion whether the facts establish a case of the partnership or a case of exclusive possession of the contending parties. This is not the stage when I can record a finding one way or the other in the absence of any evidence having been recorded by the court below.
It has been argued that in the instant case there is no dispute with regard to Immovable property. I am not inclined to accept this submission. The Petrol pump is attached to the land. According to the case of Murali the opposite party Paras Nath was trying to take forcible possession of the land and the petrol pump which was likely to lead to a breach of peace. As such the subject matter of dispute was Immovable property and the provisions of Section 145 Code of Criminal Procedure were attracted.
For the reasons given above, I am of the opinion that the Sub-Divisional Magistrate has rightly held that the Indian Oil Corporation is not a person interested within the meaning of Section 145(5) Code of Criminal Procedure and in this view of the matter, he has rightly rejected the objections. As I have mentioned above, the objection of Paras Nath has also been rejected. He has not filed any revision against the order of the Court below. As such I come to the conclusion that there is no merit in this revision, which is hereby dismissed.