SMT. SHUBHAVATI DEVIversusSTATE OF U.P. AND 2 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD

         MATTERS UNDER ARTICLE 227 No. - 12190 of 2025

Smt. Shubhavati Devi
                                                              .....Petitioner(s)
                                   Versus
State Of U.P. And 2 Others
                                                            .....Respondent(s)

Counsel for Petitioner(s)                       :    Rajeev Chaddha
Counsel for Respondent(s)                       :    G.A.

Court No. - 89
                     HON'BLE ANIL KUMAR-X, J.

1. Heard learned counsel for the petitioner and Sri Amrit Raj, learned AGA
for the State are present.

2. Learned counsel for the petitioner has prayed for a direction to set aside
the order dated 22.02.2015/22.12.2015 passed by Sub Divisional Magistrate,
Khajani, Gorakhpur in case no.75/T-20150531023080 of 2015 and to set
aside order dated 23.06.2025 passed by Additional Sessions Judge/Special
Judge (P.C. Act), Court no. 3, Gorakhpur in criminal revision no. 84 of
2024.

3. Learned counsel for the petitioners submitted that proceedings under
Section 145 Cr.P.C. were initiated on an application filed by respondent
Nos. 2 and 3 before the learned SDM, Khajani, District Gorakhpur, alleging
that the petitioner was attempting to take illegal possession of their
agricultural land bearing Gata No. 62, admeasuring 1.95 acres. It was further
submitted that, pursuant to the said application, the learned SDM called for a
police report. The police report revealed that the disputed land had been
jointly purchased by the petitioner and the respondents through a common
sale deed and that all of them are co-sharers in the said land. It was also
mentioned in the police report that Partition Suit No. 163/11 (Vidhyadhar vs.
Gulam Ahiya) was pending before the competent court, and an order
directing maintenance of status quo had already been passed on 06.04.2011.
The report further indicated that one of the respondents, namely Radhika
Devi, was deliberately violating the said status quo order. Despite such
specific findings in the police report dated 07.12.2024, the learned SDM
proceeded to pass an order under Section 146(1) Cr.P.C. attaching the
disputed land.

4. Learned counsel further submitted that the initial application under
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Section 145 Cr.P.C. was filed by respondent No. 2, describing himself as the
complainant and arraying respondent No. 3, Smt. Radhika Devi, as a
respondent. Subsequently, respondent No. 2 moved an application seeking
attachment of the disputed property, upon which a no objection was called
from respondent No. 3, who submitted her consent. Relying upon such no
objection, the learned SDM passed an order of attachment dated 22.02.2015
in Case No. 75/T-20150531023080 of 2015 (State vs. Smt. Alavati Devi and
others).

5. Aggrieved by the said order dated 22.02.2015, the petitioner preferred
Criminal Revision No. 250 of 2016, which was allowed by setting aside the
order of attachment and remanding the matter back to the learned SDM for
passing a fresh order in light of the observations made by the revisional
court. The said order was passed on 10.10.2017. However, when the
petitioner placed the revisional court's order dated 10.10.2017 before the
learned SDM, the learned SDM orally denied having passed any order dated
22.02.2015 under Section 146(1) CrPC and instead claimed that the order
had been passed on 22.12.2015. Being aggrieved by such denial, the
petitioner filed an application under Section 362 Cr.P.C., which was
registered as Criminal Miscellaneous Case No. 91 of 2018, seeking
correction of the date mentioned in the revisional order. The said application
was dismissed by the revisional court, holding that there was no
typographical error, as the trial court record had been summoned and
perused before passing the order dated 10.10.2017.

6. Left with no alternative, the petitioner, accepting the date as 22.12.2015,
preferred a second Criminal Revision No. 87 of 2024, challenging the order
of attachment. In the said revision, the petitioner disclosed all relevant facts
and sought setting aside of the order dated 22.12.2015. However, the said
revision was dismissed on 23.06.2025, with the revisional court upholding
the findings of the learned SDM without properly considering the peculiar
facts and circumstances of the case.

7. Learned counsel for the petitioner submitted that the petitioner has been
constrained to run from pillar to post due to contradictory stands taken by
the learned SDM regarding the date of the order passed under Section 146(1)
Cr.P.C. It was argued that the petitioner is now left with no efficacious
remedy except to challenge the entire proceedings, including the order
passed under Section 146(1) Cr.P.C., before this Court.

8. Learned AGA has also conceded to the factual matrix as presented by the
petitioner.
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                                    9. Heard learned counsel for the parties and perused the record. The
                                    petitioner has placed on record a certified copy of the order passed by the
                                    learned SDM under Section 146(1) Cr.P.C. A bare perusal of the said order
                                    clearly demonstrates that it was passed on 22.02.2015, which was also set
                                    aside in Criminal Revision No. 250 of 2016. It is indeed a travesty of justice
                                    that the learned SDM, having passed the order dated 22.02.2015,
                                    subsequently denied its existence and asserted that the order was passed on
                                    22.12.2015. It is on account of such contradictory stand that the petitioner
                                    has been compelled to approach this Court.

                                    10. In the given circumstances, this Court deems it appropriate to set the
                                    entire controversy at rest by examining the merits of the case. From the
                                    police report, it is evident that the petitioner and the respondents are co-
                                    sharers in the disputed property and are already engaged in a partition suit. It
                                    is well settled that proceedings under Section 145 Cr.P.C. are not
                                    maintainable where the parties are co-sharers in joint possession of the
                                    property.

                                    11. Accordingly, the entire proceedings arising out of Case No. 75/T-
                                    20150531023080 of 2015 and order dated 22.02.2015/22.12.2015 are set
                                    aside. Therefore, without entering into the merits of the other orders and
                                    judgments, particularly in view of the dispute regarding the foundational
                                    order under Section 146(1) Cr.P.C., the present petition is allowed.

                                    May 5, 2026
                                    Ujjawal
                                                                                               (Anil Kumar-X,J.)




Digitally signed by :-
UJJAWAL
High Court of Judicature at Allahabad