Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 833 (PAT)

Sita Ram Mahto v. State Of Bihar

2002-08-01

R.S.GARG

body2002
Judgment 1. This order shall dispose of Cr.W.J.C. No. 96/2001 and Cr.W.J.C. No. 100/2001. The orders impugned in each of the writ petitions are dated 21.10.2000 and have been annexed as Annexure-2. 2. From Annexure-2 it appears that on an application by Balram Jha certain enquiries were made by the circle officer and he made a request to the Sub-Divisional Magistrate under his letter no. 924 dated 12.9.2000 to take action under section 144 of the Code of Criminal Procedure. It appears from Annexure-2 that instead of registering the proceedings under Section 144 Cr.P.C. the learned Sub-Divisional Magistrate started proceeding with the matter, took into consideration certain documents which were filed before him on 3.10.2000 and thereafter pass an order that the properties were being wasted, the present petitioners who were not in possession or had no right, title or interest in the properties were creating problems and that the complainant Balram Jha was entitled to police protection. 3. From the order it does not appear any proceedings under Section 144 Cr.P.C. was registered. It also does not appear that any notice to show cause was issued to the petitioners. It also does not appear that the learned Sub-Divisional Magistrate for satisfying himself or satisfying the records recorded any finding that there were sufficient grounds for proceeding under Section 144 Cr.P.C. and immediate prevention or speedy remedy was desirable. The order simply says that in view of the recommendations made by the Circle Officer, the contents of the application dated 3.10.2000 and the documents appended with the application, it would simply appear that present was a case for providing police protection to said Balram Jha. In the opinion of this Court the order dated 21.10.2000 could not be passed in the administrative capacity by the said Sub- Divisional Magistrate. From the tenor of the order it does not appear that it has been passed under Section 144 Cr.P.C. If the order cannot be passed either on the legal foundation or on the administrative ground then the order has to go. The orders (Annexure-2) dated 21.10.2000 in each of the case are quashed. From the tenor of the order it does not appear that it has been passed under Section 144 Cr.P.C. If the order cannot be passed either on the legal foundation or on the administrative ground then the order has to go. The orders (Annexure-2) dated 21.10.2000 in each of the case are quashed. It is, however, made clear that if on the recommendation made by the Circle Officer or on the application dated 3.10.2000 submitted by Balram Jha, the concerned Sub Divisional Magistrate still proposes to proceed further then he has to observe the provisions contained in Section 144 Cr.P.C. It would be within his jurisdiction to pass further orders but obviously after giving proper and due opportunities of hearing to both the parties. 4. The petitions are allowed. 5. Learned counsel for the petitioners further submits that in execution of the orders (Annexure-2) since each of the petitioners has been dispossessed, therefore, each of the petitioners be restored the possession. Learned counsel for the private respondents submits that they were already in possession and they have not dispossessed any of the petitioners. As the matter relates to a factual dispute, it is deemed desirable that the petitioner/petitioners may make applications to the concerned Sub Divisional Magistrate for restoration of possession on the ground that in execution of the said order they have been dispossessed. If the Sub Divisional Magistrate, after giving opportunity to the private respondents, records a finding that the petitioners have been dispossessed in execution of his earlier order which has now been quashed, he shall immediately put the petitioners in possession. Both the petitions are allowed with the above directions/observations.