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Judgment
Sunil Gaur, J.—The order impugned in the above captioned petitions is of 23rd February, 2007, of the revisional court passed in Criminal
Revision No. 89/2006, whereby a direction has been given to the trial court to take steps in pursuance of the provisions of Sub-section 5 of
Section 145 of the Code of Criminal Procedure, concerning restoration of the possession of the property in question to the party from whom it
was taken.
Since the order impugned in these two petitions is common one, therefore, these two petitions were heard together and are being disposed of by
this common order.
After having heard both sides and upon perusal of the impugned order as well as record of this case, it emerges that in the impugned order,
perhaps due to a typographical error, provision of law has been incorrectly quoted. The restoration of the possession of the property in question to
the party from whom it was taken, can be done by resorting the Sub-section 6 read with Sub-section 4 of Section 145 of the Code of Criminal
Procedure and not by resort to Sub-section 5 of Section 145 of the Code of Criminal Procedure.
Be that as it may. The admitted position is that proceedings u/s 145 of the Code of Criminal Procedure were dropped vide order of 26th
August, 2005. The possession of the property in question, during the aforesaid proceedings, was taken from respondent No. 2 and was delivered
to petitioners Padam Chand and his wife Rani Devi, who in turn had rented out the property in question to J.C. Gupta, who is the petitioner in
Criminal M.C. No. 992/2007.
It is true that aforesaid petitioner J.C. Gupta was not a party to the proceedings u/s 145 of the Code of Criminal Procedure and was not a party
to the revisional proceedings, from which the impugned order springs out, therefore, strictly speaking, petitioner J.C. Gupta has no locus standi to
file Criminal M.C. No. 992/2007.
Since the impugned order is under scrutiny in Criminal M.C. No. 1581/2007 of Padam Chand, therefore, instead of not-suiting petitioner J.C.
Gupta on the ground of jurisdiction, this Court proceeds to examine the impugned order on merits.
Upon doing so, it is found that the decisions reported in Ram Rattan and Others Vs. State of Uttar Pradesh, ; Roop Lal Bhalla and Others Vs.
State and Another, ; Shri Arvindra Kumar Singh Vs. Smt. Hardayal Kaur and Others, and Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu
(D) by Lrs. and Another, , relied upon by the petitioners deal with an altogether different proposition and therefore, they do not advance the case
of the petitioners herein, in any manner whatsoever. For instance, the question of ""settled possession"" considered by the Apex Court, in its decision
reported in Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, , is of no relevance in the facts of the present case. It is
noted in the impugned order that the trial court had not restored the possession of the property in dispute to the petitioners (respondents herein),
when the proceedings u/s 145 of the Code of Criminal Procedure were dropped on 26th August, 2005.
The aforesaid order of 26th August, 2005, had admittedly attained finality. The revisional court in the impugned order has relied upon the case
of Sankatha Prasad Mishra and Others Vs. State of U.P. and Others, to hold as under:
Therefore, it is evident that when possession of the property was taken from petitioner and proceedings have been dropped by the learned
Magistrate, since he lacked jurisdiction for want of preliminary order under Sub-section (1) of Section 145 of the Code, the magistrate is under an
obligation to restore the possession to the petitioner.
Learned Counsel for the petitioners have not been able to distinguish the aforesaid decision in Sankatha Prasad Mishra and others (supra),
relied upon by the trial court.
Since the proceedings u/s 145 of the Code of Criminal Procedure, have been dropped on account of lack of jurisdiction, therefore, possession
of the property in question, has to be restored to the person, from whom it was taken. There is no illegality or infirmity in the impugned order.
There is no merit in these two petitions and, therefore, they are accordingly dismissed.
These two petitions stand accordingly disposed of.