- In the case, Anil Kumar v Jitendra Kumar and others, the Hon’ble Allahabad HC held that it was not proper to allow proceeding to be continued u/s 145 CrPC if proceeding regarding possession or declaration to the title of the property is pending.
- An application was filed by the revisionist with the prayer that respondent no.1 shall be restrained from interfering in his possession. Learned Sub-Divisional Magistrate, Kadipur passed an order and directed the Station In-charge, Kotwali Nagar, Kadipur to ensure that law and order was maintained.
- Subsequently, the respondent also preferred an application u/s 145 CrPC and 146 CrPC over restraining revisionist him not to interfere in his possession.
- On his application also, the direction was issued to the Station In-charge to conduct an inquiry and submit its report within a week. It was opined from the report that due to the partition dispute there existed ample tension between the parties and which could result in disruption of peace at any time. Sub- Magistrate passed an order u/s 145(1) CrPC and furnished an opportunity to the parties to file the evidence in their support.
- Within a few days, the revisionist filed an objection against his preliminary order before the Sub- Divisional Officer and stated that there was no possibility of disruption of peace and law and hence he should be permitted to withdraw the case.
- Thereafter, Sub-Divisional Magistrate dropped the proceeding u/s 145 CrPC as he couldn't find any likelihood of disturbance and since the revisionist had stated that he was the first party in the case and wanted to withdraw the case.
- This order was challenged by the respondent before the Additional Sessions Judge, Sultanpur. Learned Additional Session Judge discussed the interim order of a pending petition where the father of the respondent had restrained not to sell or alienate the property but did not mention who will be in possession of the property.
- Additional Session Judge set aside the order passed by SDM and therefore, was directed to pass a fresh order after hearing both parties.
- In the above-mentioned facts, two issues arose before the Hon’ble HC,
- Whether withdrawal of proceeding at the instance of first-party was correct.
- The effect of pending suit proceedings upon the ongoing 145 CrPC proceeding.
- The Full Bench of Allahabad HC reported the judgment of Ganga Bux Singh v Sukhdin, 1959 for the first issue where it was held that the proceeding u/s 145 CrPC was only in the interest of the maintenance of peace and not for the preservation of rights of any party. Hence, the HC held that it is at the discretion of the Magistrate to take action accordingly.
- The HC referred to the precedent of the Apex Court, Amresh Tiwari vs. Lalta Prasad Dubey, and another, 2000, to answer the second issue. It was held that where a civil suit for possession or declaration of the title was pending, the proceedings u/s 145 CrPC were liable to be discontinued.
- Hence, the proceedings u/s 145 CrPC were directed to be discontinued.
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