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2006 DIGILAW 1204 (PAT)

Anil Kumar Gupta v. State Of Bihar

2006-12-08

GHANSHYAM PRASAD

body2006
Judgment 1. This application under sec. 482 Cr.P.C. has been filed for quashing the order dated 3.9.2004 passed by the Sub-Divisional Magistrate, Sadar, Ara in Case No. 154 of 2004 as well as its revisional order dated 30th December, 2004 passed by Shri Arun Kumar Singh, Fast Track Court No. V, Ara in Cr. Revision No. 171 of 2004 as also subsequent orders passed by S.D.M., Bhojpur, Ara in the above case including order dated 25.2.2005 with further prayer to restore status quo ante over the shop in question. 2. In a proceeding under sec. 144 Cr.P.C. the learned S.D.M. not only made rule absolute against the petitioners but also ordered for delivery of possession to the opposite party nos. 4 to 8 who were second party in the proceeding. 3. The facts which are necessary to be mentioned here are as follows: 4. The disputed property was a shop standing over 6 Dhur 18 Dhurki of land bearing Plot No. 102 under Khata No. 27 situated in village Gheghta P.S. Ara Mufassil, District Bhojpur. The same was let out by the opposite party no. 9 Shiv Shankar Sah in favour of the petitioners on 15.7.1999 on monthly rental of Rs. 340/-. The Kirayanama was also executed in favour of the petitioners. Thereafter the petitioners started their business. Ultimately, on 19.10.2002, opposite party no. 9 Shiv Shankar Sah agreed to sell the disputed premises to the petitioners for Rs. 1,15,000/-after adjusting the advance of Rs.91,000/-paid to him and Yaddasht was also prepared in token of the agreement. According to terms the sale was to be effected by the month of December, 2004. However, in the meantime, Shiv Shankar Sah in breach of the term of the agreement sold the disputed premises to opposite party nos. 4 to 8. Thereafter, the petitioners filed a title suit bearing no. 245 of 2004 in the Court of Sub-Judge-I, Ara for specific performance of contract for sale. 5. It appears from the record that on police report dated 14.7.2004, the S.D.M., Sadar, Ara drew of a proceeding under sec. 144 Cr.PC. between petitioners and opposite party nos. 4 to 8 over the said shop and asked both the parties to show cause. Both the parties filed their show cause claiming the possession over the property in question by virtue of respective documents. 144 Cr.PC. between petitioners and opposite party nos. 4 to 8 over the said shop and asked both the parties to show cause. Both the parties filed their show cause claiming the possession over the property in question by virtue of respective documents. Ultimately, the learned S.D.M. vide order dated 3.9.2004 made the rule absolute against the petitioners who were first party and vacated the same in favour of opposite party nos. 4 to 8 who were second parties in the proceeding. Not only it, a peculiar direction was also given in the said order. The local police was directed to handover possession to the second party (opposite party nos. 4 to 8) after unlocking of the shop in question. 6. It further appears that the petitioners preferred revision before the Sessions Judge, Ara which was ultimately heard by Fast Track Court-V, Ara. Unfortunately, the same was also dismissed vide the impugned order dated 30.12.2004. Thereafter, on the basis of request (Annexure-3) made by the local police, the learned S.D.M. vide its order dated 25.2.2005 deputed a Magistrate to help the local police in handing over the possession of the shop in question to the opposite party nos. 4 to 8. Ultimately, the police handed over possession of the shop in question to the opposite party nos. 4 to 8. 7. The learned counsel for the petitioners submits that in a summary proceeding like 144 Cr.PC. the S.D.M. had no power to pass order directing the local police to handover possession of the shop in question after unlocking the shop. It is further submitted that the order of Sub-Divisional Judicial Magistrate is not only illegal, bad in law but also perverse and beyond its jurisdiction. The police officer handed over the possession to the opposite party nos. 4 to 8 after unlocking the shop without preparing any inventory of the articles of the petitioners. It is highhandedness on the part of the S.D.M. as well as the police. Accordingly, it is submitted that under the facts and circumstances of the case, an order should be passed for restoration of the possession of the petitioners alongwith all articles of the shop. In support of his submission, he relied upon several decisions of the court including order passed in Cr.W.J.C. No. 372 of 2002, Cr.W.J.C. No. 2356 of 2001 and Cr.W.J.C. No. 392 of 2001. 8. In support of his submission, he relied upon several decisions of the court including order passed in Cr.W.J.C. No. 372 of 2002, Cr.W.J.C. No. 2356 of 2001 and Cr.W.J.C. No. 392 of 2001. 8. I have no doubt in my mind that in a proceeding like 144 Cr.RC, the Magistrate has no jurisdiction to enter into the title of the parties and direct the police to handover possession of the disputed property in favour of any of the parties. It is manifestly clear that the Sub-Divisional Officer has acted arbitrarily and with utter disregard of settled principle of law. Scope of enquiry under sec. 144 Cr.PC. is very limited. He has to decide only the status of the parties over the disputed land and not to pass order for forceful removal of any of the parties from the property in question through local police or Magistrate and handover possession to other party. 9. In all the aforesaid three decisions, the similar view has been taken by this High Court. Not only it the order for restoration of possession has also been passed in favour of the petitioners. The facts and circumstances of this case also warrant for restoration of possession over the shop in question in favour of the petitioners. 10. Accordingly, this application is allowed. The various orders passed by the learned S.D.M. including the order of revision are hereby quashed. The lower court i.e. S.D.M., Bhojpur at Ara is directed to restore the possession of the petitioners over the shop in question through proper agency and also handover all the articles of the shop which have been taken away by the opposite party nos. 4 to 8 within a fortnight of receipt of this order with intimation to this Court. 11. In peculiar facts and circumstances of the case, in tune with decisions of this High Court in above cited cases, also think it proper to impose cost of Rs. 10,000.00 to be paid by the State Government to the petitioners within 15 days of the receipt of this order. The State may recover the same amount from pocket of the then S.D.M. who acted in complete disregard of the law.