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2000 DIGILAW 771 (PAT)

Binod Kumar Saran v. State Of Bihar

2000-06-23

D.N.PRASAD

body2000
Judgment D.N.Prasad, J. 1. This application under Sec. 482 of the Code of Criminal Procedure has been filed for quashing the Older dated 11-9-1999 passed in Case No. M 369/91, whereby and where-under the learned Magistrate dropped the proceeding under Sec. 145 of the Code of Criminal Procedure and also the attachment order under Sec. 146(1) of the Code of Criminal Procedure has been withdrawn. 2. Short facts leading to this application as stated are that a proceeding under Sec. 144, Cr. PC was drawn up as-back as on 14-11-1991 between the petitioner and Opposite Party Nos. 3 and 4 after submission of police report. The aforesaid case (M 3911 91) was initiated with respect to 0.12 acres of land of Khata No. 6, plot N. 847 of village Noora, PS-Sadar, District Hazaribagh and the said proceeding was later on converted into a proceeding under Sec. 145, Cr. P.C. by order dated 10-1-1992. The Opposite party preferred revision against the said order which was dismissed. After the revision was dismissed, the Opposite Party came before this Hon ble Court vide Cr. Misc. No. 5481 of 1992 (R) challenging the order dated 10-1-1992 and praying for quashing the order of SDM as well as the order of the learned Sessions Judge which was dismissed by order dated 21-6-1993 by this Court, in the meantime, the attachment order under Sec. 146(1) of the Code of Criminal Procedure was also passed as per order dated 20-9-1993 and the Circle Officer, Sadar was appointed as Receiver, against which a Revision was also filed before the Sessions Judge, Hazaribagh which was dismissed. Subsequently, the Opposite party again preferred Cr. Misc. No. 5290 of 1993(R) which was also dismissed by order dated 7-1-1994. It is further stated that a Title Suit being Title Suit No. 27/94 was filed by Opposite party in the Court of Sub-fudge, Hazaribagh for the lands situated on Khata No.6 plot No. 847 area 0.21 acres. The Opposite Party No.4 and her son also moved this Court vide Cr. Misc. No. 7154/96(R) against the said proceeding, which was also dismissed by order dated 20-8-1997. But, even then the learned Executive Magistrate has dropped the proceeding under Sec. 145, Cr. The Opposite Party No.4 and her son also moved this Court vide Cr. Misc. No. 7154/96(R) against the said proceeding, which was also dismissed by order dated 20-8-1997. But, even then the learned Executive Magistrate has dropped the proceeding under Sec. 145, Cr. PC and has also withdrawn the attachment order by the order impugned, when the learned Magistrate failed to take into consideration that the Title Suit has been filed after the said proceeding in order to defeat the provision of law. The petitioner was also not given opportunity to be heard and in absence of the petitioner, the order impugned was passed, which is fit to be quashed. 3. On the other hand, the Opposite party No.4 filed counter-affidavit claiming therein that there is no illegality in the order impugned as the learned Magistrate has rightly dropped the proceeding when the title suit for same land is pending before the Court of Sub-judge. Hazaribagh. It is also claimed that the petitioner avoided in getting the proceeding disposed of at the earliest and this Opposite party No. 4 had no knowledge about the proceeding initiated under Sec. 144, Cr. PC and she was made party as per order passed in Cr. Misc. No. 6091 of 1996(R). The land under proceeding exclusively belonged to the Opposite party No. 4 and she has been residing with her family members and so there was no question of any construction over the land in question and there is no illegality in the impugned order to be interferred. 4. It may be noted here that none appeared on behalf of the Opposite party Nos. 2 and 3 in spite of service of notice. 5. Heard the learned counsel appearing on behalf of the parties. 6. The learned counsel appearing on behalf of the petitioner submitted that the learned Magistrate committed error in dropping me proceeding under Sec. 145, Cr. PC in which there was also order for attachment as laid down under Sec. 146(1), Cr. PC and against which the Opposite party attemped several times by preferring revision and Cr. Misc. Petition which were dismissed. It is further submitted that the opposite party preferred Cr. Misc. No. 5481 of 1992(R) for quashing of the order dated 10-1-1992, which was also rejected. Again the Opposite party preferred a Cr. Misc. PC and against which the Opposite party attemped several times by preferring revision and Cr. Misc. Petition which were dismissed. It is further submitted that the opposite party preferred Cr. Misc. No. 5481 of 1992(R) for quashing of the order dated 10-1-1992, which was also rejected. Again the Opposite party preferred a Cr. Misc. No. 5290 of 1993(R) for quashing of the attachment order which was also rejected and thereafter a Title suit No. 27 of 1994 was filed purposely in order to defeat the provision of law and the learned Magistrate dropped the proceeding on account of the said Title Suit being pending before the Sub-Judge, which is illegal. In this respect, the learned counsel appearing on behalf of the petitioner relied upon the case of Smt. Kalindi Devi V/s. State of Bihar and others, wherein it has been held that mere filing of civil suit subsequent to the initiation of proceeding cannot be sufficient to drop the proceeding under Section 145, Cr. PC when admittedly in the instant case, the said Title Suit No. 27 of 1994 was filed in the year 1994 and the proceeding under Sec. 145, Cr. PC was converted as back as on 10-1- 1992. There is no dispute about the existence of apprehension of breach of peace or dispute likely to cause breach of peace concerning the land in dispute. It is true that any decision in a proceeding under Sec. 145, Cr. PC is subject to the decision of a suit by a Court of competent jurisdiction. 7. It is further argued on behalf of the petitioner that the impugned order was passed without hearing the petitioner and violated the principles of natural justice as well. 8. On the other hand, the learned counsel appearing on behalf of the Opposite party No. 4 contended before me that there is no illegality in the impugned order and actually the petitioner purposely avoided to appear before the Court of learned Magistrate as well as the Opposite party No. 4 was quite unaware of the initiation of a proceeding under Sec. 144, Cr. PC and she was made party later on. It is also submitted that she has been residing in the premises, and the impugned order has rightly been passed, which does not require to be interferred. 9. PC and she was made party later on. It is also submitted that she has been residing in the premises, and the impugned order has rightly been passed, which does not require to be interferred. 9. From going through the impugned order, it is clear that the said proceeding was dropped on the plea of pendency of the title suit, but admittedly the said title suit was filed after much lapse of time of the said proceeding initiated under Sec. 145, Cr. PC. 10. There are some admitted position in the instant case as a proceeding under Sec. 144, Cr. PC was converted as back as in the year 1992 against which revision was filed before the Sessions Judge, which was dismissed and there after the Opposite party also preferred Cr. Misc. No. 5481 of 1992(R) which was also rejected. It is also clear that against the order of attachment, the Opposite party again preferred Cr. Misc. petition before this Court which was also rejected. It is further admitted position that Title Suit No. 27/1994 was filed before the learned Sub-judge, Hazaribagh much after the initiation of proceeding under Sec. 145, Cr. PC. It is further admitted fact that the impugned order was passed without hearing the petitioner. Thus, it is apparent that the learned Magistrate committed error in dropping the proceeding under Sec. 145, Cr. PC by giving cryptic reasons and without hearing the petitioner. Hence, the impugned order cannot be sustained in law. 11. In the result, this application finds merit, which is allowed. The impugned order dated 11-9-1999 is quashed and the case is remitted to the Court of the Executive Magistrate, Sadar, Hazaribagh (Shri P.K. Gupta)/or his successor, with direction to hear the petitioner as well as Opposite party members on the point and pass the order afresh in accordance with law.