Manohar Lal Sharma vs State of Uttarakhand and Another

Prafulla C. Pant, J.—Heard learned Counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit filed on behalf of the parties.

By means of this petition, moved u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), the Petitioner has sought quashing of the orders dated 06.10.2009 and 13.11.2009, passed by the City Magistrate, Haridwar, in Case No. 23 of 2009, u/s 145/146 of Code of Criminal Procedure .

Brief facts of the case are that Reporting Outpost Khadkhadi, police station Kotwali Haridwar, made a report on 24.08.2009 to the City Magistrate, Haridwar, that an Ashram known as ''Kalpdham Ashram'' was earlier run by one Swami Abdedanandji. The Petitioner Manohar Lal Sharma was his paid servant. But, before said Swamiji left, he appointed the Petitioner as Trustee of the Ashram, who started living within the premises of Ashram, and used to look after the property. Thereafter, other Trustees appointed Swami Pranavanandji (Respondent No. 2) as the Managing Trustee/Chairman of the Ashram. Meanwhile, dispute arose between the parties and allegations were made by the Respondent No. 2 and the Petitioner that each one of them is inducting new Trustees. On receipt of the report of the police relating to law and order, proceedings u/s 145 of Code of Criminal Procedure were drawn and preliminary order dated 06.10.2009 (copy Annexure-1 to the petition) was passed by the City Magistrate, inviting the parties in dispute to produce the evidence. The Petitioner responded to the notice and put up his case before the City Magistrate.

On 12.11.2009, Sub Inspector Pankaj Pokhariyal of police station Kotwali Haridwar got registered a first information report, relating to offences punishable u/s 309, 306, 120-B of I.P.C. against Sumati Devi (wife of the present Petitioner), Indrajeet Sharma (son of the Petitioner), Dalip (son-in-law of the present Petitioner) and one Manoj Gautam, which contained following allegations:

In the above circumstances, on the next day, the City Magistrate passed another impugned order dated 13.11.2009, u/s 146(1) of Code of Criminal Procedure, attaching the property and appointing a Sub Inspector of Reporting Outpost Khaddhadi, police station Kotwali Haridwar, as Receiver.

Learned Counsel for the Petitioner submitted that the orders passed by the City Magistrate are erroneous in law, as Suit No. 84 of 2009 filed by the Respondent No. 2 on behalf of the Trust is already pending before the civil court. Attention of this Court is drawn to the case of Kunjbihari v. Balram and Anr. (2006) 11 SCC 66; Ram Sumer Puri Mahant Vs. State of U.P. and Others, ; Virendra Kumar v. State of U.P. and Ors. 2003 Cri. L.J. 2709 (All) and Atahaul Haque and Ors. v. Mohd. Allauddin 2000 Cri. L.J. 3245 (Pat) and it is argued that when the suit in respect of property in dispute is pending, the proceedings u/s 145 of Code of Criminal Procedure must be dropped. I have examined the facts of the present case and also went through the cases referred on behalf of the Petitioner. No doubt, it is settled principle of law that when the suit in respect of a property is already pending before a civil court, the proceedings u/s 145 of Code of Criminal Procedure are not desirable. However, it is pertinent to mention here that Section 146(1) of Code of Criminal Procedure provides three different situations when the order can be could be passed under said Section, namely (i) when it is a case of emergency, or (ii) when none of the parties are found in possession of the property in dispute, or (iii) when the Magistrate is unable to satisfy himself as to which of the parties are in possession over the property in dispute.

As far as abovementioned conditions No. (ii) and (iii) are concerned, certainly when the dispute is pending before the competent civil court, the Magistrate instead of proceeding further with the proceedings u/s 145 or 146 of Code of Criminal Procedure should direct the parties to get their rights determined from the civil court, where the suit is pending. However, in the case of the emergency, Magistrate cannot be expected to wait for the decision of the civil court. In the present case, as apparent from the police report that the Petitioner''s wife and family members said to have closed the doors of the Ashram and Sumati (Petitioner''s wife) threatened to set herself on fire, if any of the Trustee dared to enter in the premises of the Ashram. It is further reported that Sumati Devi (wife of the Petitioner), to set herself on fire, poured kerosene oil on herself near the gate of the Ashram. In such circumstances, police had to take her into custody and make a report to the Sub Divisional Magistrate, after lodging the first information report. In the circumstances, the attachment order passed by the City Magistrate cannot be said to be illegal. But the main grievance of the Petitioner in the present case before this Court is that the Petitioner and his family has been ousted from the two rooms occupied by him as Trustee in the Ashram. I do agree with learned Counsel for the Petitioner that under the garb of the proceedings of 145/146 of Code of Criminal Procedure, the Petitioner and his family could not have been evicted, in the manner complained by the Petitioner before this Court. For eviction of the Petitioner and his family only the civil court could have passed the decree in the suit filed by the Respondent No. 2 on behalf of the Trust. It is not a case of any party that Petitioner illegally occupied the two rooms within two months before the proceedings initiated u/s 145 of Code of Criminal Procedure In the circumstances, in the opinion of this Court necessary orders are required to be passed by this Court u/s 482 of Code of Criminal Procedure to do justice between the parties to the extent of restoration of possession of the two rooms. However, the rest part of the impugned orders do not require interference.

Accordingly, this petition u/s 482 of Code of Criminal Procedure is disposed of with the direction that the Petitioner shall be restored possession of the two rooms which were in his occupation for stay of his family without any right of management of the Ashram, subject to decision of the civil court. Rest part of the impugned orders are not interfered with. As to the management of the property by the Trustees, including Respondent No. 2, they are free to obtain necessary orders from the civil court which would supercede the impugned orders of attachment, and appointment of the Receiver.