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Sheo Murat Upadhya Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1975CriLJ1436
AppellantSheo Murat Upadhya
RespondentState and ors.
Excerpt:
- - resort to such action should only be taken under exceptional circumstances. 6. it is significant to note in this connection that in the written statements which have been filed by both the contesting parties it has been clearly mentioned that if at all the provisions of section 147, criminal procedure code would be attracted and not of section 145. criminal procedure code. in this very connection i would like to point out that under section 147(1-a) criminal procedure code it is mentioned that 'the provisions of section 145 shall as far may be, be applicable in the case of such inquiry......preliminary order on 29th june, 1972, and directed attachment of the school under section 145(1), criminal procedure code. he directed the parties to file their written statements and affidavits in support of their respective claims. sheo murat upadhya filed a written statement of 7th july, 1972, in which is alleged that the proceedings under section 145, criminal procedure code are totally misconceived. it was also pleaded in his written statement that there was no apprehension of the breach of peace from his side and that he had been in continuous management of the institution. on the same day an application under sub-clause (5) of section 145, criminal procedure code was filed on behalf of brij pat singh in which it was also alleged that the dispute between the parties was 'not a.....
Judgment:
ORDER

P.N. Bakshi, J.

1. Janta Laghu Madhyamik Vidyalaya, Ranipar is an educational institution. Sri Ram Karan Singh, M. L. A. was the first President of the Managing Committee and Sheo Murat Upadhaya was its Secretary. Sri Ram Karan Singh was later on removed from the Office of the Presidentship and it is said that Sri Brij Pat Singh was set up by him as Manager-cum-Secretary of the institution. There was a serious dispute between Sheo-Murat Upadhaya and Brij Pat Singh for the management of the aforesaid institution. On 29th June, 1972. the Station Officer Sahjanwa submitted a report in which it was mentioned that there was a serious apprehension of the breach of peace from the side of Sheo Murat Upadhaya and Brij Pat Singh, who were both claiming the right to manage the aforesaid institution. On a perusal of the report of the Station Officer, the Magistrate first class, Gorakhpur passed a preliminary order on 29th June, 1972, and directed attachment of the School under Section 145(1), Criminal Procedure Code. He directed the parties to file their written statements and affidavits in support of their respective claims. Sheo Murat Upadhya filed a written statement of 7th July, 1972, in which is alleged that the proceedings under Section 145, Criminal Procedure Code are totally misconceived. It was also pleaded in his written statement that there was no apprehension of the breach of peace from his side and that he had been in continuous management of the institution. On the same day an application under Sub-clause (5) of Section 145, Criminal Procedure Code was filed on behalf of Brij Pat Singh in which it was also alleged that the dispute between the parties was 'not a matter of some quarrel or contest between the parties for possession of immovable property but it was a matter of rights between the parties constituting the members of the Management Committee as to who should be allowed to continue the management,' It was further mentioned in this application that the question of attachment of the institution did not arise. It was alleged-therein that if at all attachment was necessary then that could only be effected Under Section 147. Criminal Procedure Code and snot under Section 145, Criminal Procedure Code as the dispute between the parties related to the right of management. It was also mentioned in this application 'that if any apprehension of the breach of peace is found to exist between two individuals a case under Section 107/117, Criminal Procedure Code should have been started rather than attaching the institution itself against public policy and the spirit of law'. On this basis the prayer was that the proceedings under Section 145, Criminal Procedure Code be dropped. No order appears to have been passed on this application so far. A written statement has also been filed on behalf of Brij Pat Singh in which a plea has been taken that the proceedings under Section 145, Criminal Procedure Code are misconceived, that, if at all proceedings can only to be taken under Section 147, Criminal Procedure Code that the dispute in question relates to the rights of management of the institution and as such Section 145, Criminal Procedure Code is not applicable and the proceedings thereunder should be quashed. It was also mentioned in this application that there is no apprehension of the breach of peace.

2. Feeling aggrieved by the preliminary order of the Magistrate dated 29th June 1972 attaching the institution a revision was filed by Sheo Murat Upadhaya before the Sessions Judge Gorakhpur which has been dismissed on 28th July, 1972. Hence the present revision.

3. I have heard learned Counsel for the parties and have also perused the record of the case. I have carefully scrutinised the preliminary order which has been passed by the Magistrate on 29th August, 1972. It is clear therefrom that the Sub-Divisional Magistrate is himself of the opinion that there is a dispute between Sheo Murat Upadhaya and Brij Pat Singh with regard to the election of the President of the said institution and that this dispute has become so serious that it is likely to lead to an apprehension of the breach of peace. It is significant that in this preliminary order the Magistrate has not specifically mentioned that the dispute in question relates to immovable property. On the contrary the order makes it clear that the dispute is merely concerned with the right to manage the institution. From the report of the Station Officer I find that he has mentioned therein that attempts have been made by him to persuade both the parties not to commit any breach of peace but this persuasion has had no effect. In these circumstances, it is amply clear that the proper section to be invoked by the Magistrate was Section 107/117, Criminal Procedure Code. He should have taken action under the aforesaid section and ought to have issued notice to the parties to show cause why they should not be bound down for keeping the peace. Instead of taking appropriate action under Section 107/117. Criminal Procedure Code the Magistrate has attached the institution. It must be pointed out that the attachment of an educational institution is a very serious matter and is likely to jeopardize the interest of the student community. Resort to such action should only be taken under exceptional circumstances. In the present case it is evident that both the parties are claiming a right to manage the institution. Personal rivalry and bickerings between the parties should not be allowed to hamper the smooth working of an educational institution,

4. On behalf of the Opposite Party No. 2 reliance is placed upon a Single Judge decision reported in 77 Punj LR 112 : 1975 Cri LJ 1434 Gurdev Singh v. State of Punjab. It was held therein that the order under Section 145(1) was not vitiated merely because the grounds were not in the preliminary order, though they were mentioned in the Police report. In my opinion this case is not applicable. In the present case the Magistrate has mentioned the reason for satisfaction and they are to the effect that there is a dispute between the parties with regard to the rights of the parties to manage the institution which is likely to lead to an apprehension of the breach of peace. In view of these reasons which have been given by the Magistrate after a perusal of the Police Report there can be no doubt that Section 145, Criminal Procedure Code could not apply to the facts of the present case.

5. Section 145. Criminal Procedure Code concerns itself with disputes concerning immovable property. This is not a case in which the contesting parties are claiming possession over immovable property. The right to manage an educational institution cannot be deemed to be covered within the provisions of Section 145. Criminal Procedure Code where the court is merely concerned with disputes regarding possession of immovable property. In this view of the matter, I am of the opinion that the proceedings under Section 145. Criminal Procedure Code and the preliminary order which has been passed thereunder are misconceived and not legally maintainable.

6. It is significant to note in this connection that in the written statements which have been filed by both the contesting parties it has been clearly mentioned that if at all the provisions of Section 147, Criminal Procedure Code would be attracted and not of Section 145. Criminal Procedure Code. Section 147, Criminal Procedure Code no doubt deals with disputes concerning right of user of immovable property. Whether the present dispute would fall under this section or not is a matter on which I do not wish to express any opinion at this stage. It would be for the Magistrate concerned to consider this aspect of the matter and if he opines that Section 147. Criminal Procedure Code applies to the facts of this case, he may proceed thereunder.

7. Another question which arises in the present case is that in their written statements both the parties have alleged that there is no apprehension of the breach of peace. As a matter of fact Brij Pat Singh has filed an application under Section 145(5), Criminal Procedure Code on 7th July, 1972, in which he has alleged that there does not exist any apprehension of the breach of peace and the proceedings should be dropped. I have already made a detailed reference of this application in the preceding paragraphs of this judgment. Therefore, this also would be one of the aspects which the court below will have to take into consideration before proceeding further in the matter under Section 147, Criminal Procedure Code. In this very connection I would like to point out that under Section 147(1-A) Criminal Procedure Code it is mentioned that 'the provisions of Section 145 shall as far may be, be applicable in the case of such inquiry. Section 145(5). Criminal Procedure Code which gives a right to a party or any person interested, to apply to the Court and to show that no such dispute as aforesaid exists or existed would also be applicable to proceedings under Section 147, Criminal Procedure Code. As such the application filed by Brij Pat Singh under Section 145(5), Criminal Procedure Code which is pending can be legally considered even during the continuance of the proceedings under Section 147, Criminal Procedure Code. In other words if the Magistrate is of the opinion that Section 147, Criminal Procedure Code applies to the facts of the present case, and he decides to pass a preliminary order in writing under Section 147(1), Criminal Procedure Code and thereafter to proceed with the enquiry it will be incumbent upon him also to consider the application of Brij Pat Singh, in deciding the question whether the apprehension of the breach of peace if at all. still continues to exist. If, on the other hand, the Magistrate is of the opinion that Section 147, Criminal Procedure Code is not applicable to the facts of the present case he would naturally not proceed to take any action under that Section and would then proceed under Section 107/117, Criminal Procedure Code.

8. In the result, therefore, this application in revision is allowed. The impugned orders of the Magistrate First Class. Gorakhpur dated 29th June, 1972 and of the Sessions Judge, Gorakhpur, D/-28-7-1972 are quashed and the Magistrate-is directed to proceed with the case either under the provisions of Section 147, Criminal Procedure Code if that is applicable, or under the provisions of Section 107/117, Criminal Procedure Code.


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