Om Prakash Gupta v. State Of Bihar — 1995 DIGILAW 248 (PAT)

Judgment P.K.Deb, J. 1. The short point involved in this Revision Petition is with regard to legality of the order passed under Section 145 (4) of the Code of Criminal Procdure in favour of responent No. 2 in M. P. Case No. 1955 of 1994 on 22-2-1995 by the SDO, Dhanbad, wherein a direction has been given for breaking open the lock of the shop involved in the proceeding to give possession in favour of the respondent No. 2. 2. The facts of the case are not required to be reiterated in the case for adjudication of the point involved in the case. This much can be stated that the dispute relates to a family feud between the petitioner and the respondent No. 2. As per contention of the respondent No. 2 in his petition for drawing proceeding u/S. 145, Cr.P.C. as contained in Annexure-2, it has been clearly stated that the shop belonging to the respondent No. 2 was put under lock by the petition on 10-9-1994 and the petition was filed by the resdondent No 2 alleging apprehension of breach of peace for such locking of the shop house on 21-12-1994. So definitely the dispossession of the respondent No. 2 was made more than two months before the filing of the application. In such position, there is no scope for restoration of possession as contemplated under Section 145 (4), Cr.P.C. by unlocking the shop premises in favour of the respondent No. 2 even if it is found that the respondent No. 2 was in posses- sion prior to 10-9-1994. 3. Mr. M. M. Banerjee, appearing for the petitioner has referred to 1988 PLJR, 552 in support of his contention. Mr. P. S. Dayal, appearing for the resondent No. 2 has streneously argued that technicality of calculation of two months should not be considered so rigidly when it could be found that the respondent No. 2 was in actual physical possession of the suit premises in the impugnedg order itself by the S.D.O. concerned and hence restoration of possession by the S.D.O. in favour of respondent No. 2 is legal and proper. 4. The very purpose of inclusion of Chapter-10 of the Cr.P.C. is to check the breach of public tranquility and for that purpose various Sections have been made and jurisdiction have been given to the Executivs Courts for the purpose. 4. The very purpose of inclusion of Chapter-10 of the Cr.P.C. is to check the breach of public tranquility and for that purpose various Sections have been made and jurisdiction have been given to the Executivs Courts for the purpose. Section 145, Cr.P.C. comes within that Chapter where the dispute arose regarding land or water and stop gap arrangement are to be made by Executive Court for nullifying the apprehension of breach of peace till the matter of dispute is set at rest by appropriate Court. 5. In the present case, this respondent No. 2 came twice to this High Court with writ petitions, the orders of which are contained in Annexures-C and D. In Cr. W. J. C. No. 687 of 1994 (R), the respondent No. 2 came up for redressal of his grievance and by order dated 2-11-1994, Division Bench of this Court disposed of the same asking the Deputy Commissioner and Supdt.of Police, Dhanbad to dispose of the representation filed by the petitioner in accordance with law. Again the petitioner (respondent No. 2 in this case) came in Cr. W. J. C. No. 3 of 1995 (R) for the same relief, which was disposed of vide order dated 12-1-1995 asking him to raise his grievance before the appropriate forum. It should be mentioned here that second writ petition was filed during the pendency of 145 proceeding before the S. D. O. and definitely, the respondent No. 2 had suppressed that matter while coming to this Court. 6. It seems that respondent was taking hectic chances before all forums getting the suit premises unlocked. Ultimately, he could get it in the impugned order passed by the S.D.O. Dhanbad. There are some allegation from the side of the petitioner regarding the passing of the orders antedatedly by the S.D.O. being the back of the petitioner. 7. Be it what it may, on the face of it, that portion of the order regarding restoration of possession in favour of respondent No. 2 is bad in the eye of law. In course of argument, it has been brought to light from the Bar that the respondent No. 2 had also moved the Civil Court in Title Suit No. 36 of 1995 under Section 6 of the Specific Relief Act for getting possession of the sui premises in his favour. In course of argument, it has been brought to light from the Bar that the respondent No. 2 had also moved the Civil Court in Title Suit No. 36 of 1995 under Section 6 of the Specific Relief Act for getting possession of the sui premises in his favour. Thus, it is found that ultimately, the respondent No. 2 could be able to choose his appropriate forum for redressal of his grievance. 8. In has been streneously argued by Mr. Dayal that even if there is a civil suit pending, there is no bar in proceeding under Section 145, Cr.P.C. and for that he has referred to the judgment of Madhya Pradesh High Court reported in 1995 Cri.L.J. 70. 9. It is true that if there is a serious apprehension of breach of peace during the pendency of a civil suit, there is no bar for proceeding under Section 145, Cr.PC. too as the very purpose of that Section is for nullifying the apprehension of breach of peace but ultimate decision always depends on the result of the civil suit. In the present case, regarding restoration of possession etc. could be decided only by a civil court where the same is pending between the parties and the unlocking of the lock for delivery of the suit premises in favour of the respondent No. 2 passed in the impugned order is totally bad. 10. In the result, the Revision Petition is allowed and the impugned order of restoration of possession and breaking of lock of the suit premises in favour of the respondent No. 2 is hereby quashed. No order as to costs.