The Allahabad High Court (Lucknow Bench) has quashed the proceedings initiated under Section 145 of the Code of Criminal Procedure (CrPC) and an attachment order passed under Section 146(1) CrPC in a long-standing property dispute between Mohd. Kasim Usmani and others (petitioners) and Mohd. Nafees (respondent no.4). Justice Rajnish Kumar held that the Magistrate had failed to establish the existence of an “emergency” or “likelihood of breach of peace,” as required under the law.
Background:
The case arose from proceedings initiated in 2015 by respondent no.4 under Section 145 CrPC before the City Magistrate, Bahraich, claiming a threat of breach of peace over possession of a property allegedly inherited by him. The petitioners had also filed a civil suit in 2014 seeking a permanent injunction, while respondent no.4 filed a separate suit in 2015 for declaration of title and cancellation of a sale deed. Despite the pendency of both civil suits, the Magistrate passed an attachment order dated 24.06.2017 under Section 146(1) CrPC.
Petitioners’ Arguments:
Counsel for the petitioners contended that they were in long-standing possession of the property, backed by documentary evidence including tax receipts and historic boundary maps. It was argued that the Magistrate’s order lacked justification, particularly as no emergent incident or updated police report was cited to support a breach of peace. The petitioners emphasized that the matter involved title disputes, already before civil courts, making the Section 145 proceedings unsustainable.
Respondent’s Contentions:
Respondent no.4 argued that the attachment proceedings were validly initiated owing to a genuine apprehension of breach of peace. He admitted that the petitioners and their predecessors were in possession but claimed this arose from collusion and deception while his family was away for employment. He justified the application under Section 145 CrPC by citing a pending FIR and lack of title clarity.
Court’s Analysis:
The High Court scrutinized the original police reports, the Magistrate’s reasoning, and the factual timeline of the suits. The Court noted:
“The impugned orders are not sustainable in the eyes of law for the reason that they have been passed without considering and recording any finding as to whether the application under Section 145 Cr.P.C. was maintainable or not… and whether there was an emergency… as contemplated under Section 146.”
The Court emphasized that both parties had acknowledged possession of the petitioners, and the police report itself admitted no emergent incident post the initial complaint. It observed that Section 146 requires “emergency” to be clearly established, which was absent in this case. Furthermore, the petitioners’ civil suit for injunction and the respondent’s civil suit for declaration of title were already pending, and such parallel criminal proceedings are impermissible in these circumstances.
The Court relied upon Supreme Court precedents, particularly Amresh Tiwari v. Lalta Prasad Dubey, (2000) 4 SCC 440, and Ashok Kumar v. State of Uttarakhand, (2013) 3 SCC 366, reiterating that:
“When possession is being examined by the civil court and parties are in a position to approach the civil court for adequate protection of the property… the parallel proceedings i.e. Section 145 proceedings should not continue.”
Decision:
Setting aside the orders of both the Magistrate (dated 24.06.2017) and the Revisional Court (dated 29.08.2018), the High Court quashed the entire proceedings in Case No. 23 of 2015 under Section 145 CrPC.
“Unless the issue of title is determined, the long admitted possession of the petitioners cannot be unsettled in the proceedings under Section 145 Cr.P.C.,” the Court ruled.
Citation:
Mohd. Kasim Usmani and Ors. vs. State of U.P. and Ors., Criminal Misc. Writ Petition No. 28135 of 2018
