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2007 DIGILAW 1324 (PAT)

Rajeev Kumar Agrawal v. State Of Bihar

2007-08-09

DHARNIDHAR JHA

body2007
Judgment 1. This miscellaneous petition was placed before me for hearing the interlocutory application filed by the O.P, No. 2 seeking the vacation of order of stay granted by me on 7.12.06 while issuing notices to the O.P. No. 2. The matter was heard by consent of the parties finally and the whole petition itself is being disposed of by the present order. 2. The impugned order is dated 9.10.06 by which the Sub-Divisional Magistrate, Majhaul recalled the order of attachment u/s. 146(2) of the Code of Criminal Procedure passed by him in case no. 137(M)/2006. A proceeding u/s. 145 of the Code of Criminal Procedure was initiated by the Sub-Divisional Magistrate, Majhaul on an application filed by the petitioner on 2.5.2006. Police report was initially called for on that petition by order dated 3.5.2006 which was submitted on the same day, i.e., on 3.5.2006 and the proceeding u/s. 145 of the Code of Criminal Procedure was initiated by order dated 10.5.2006 (annexure-2 to the petition). So as to challenging the vires of the order initiating a proceeding u/s. 145 of the Code of Criminal Procedure a criminal revision petition was filed before the learned District & Sessions Judge, Begusarai on 22.5.2006 as appears from annexure-D to the I.A. petition which was undisputedly admitted on 26.5.2006 as appears from the afore noted annexure-D. The order of the Sub-Divisional Magistrate dated 15.6.2006 (annexure-I to the I.A. petition) indicates that the order calling for the lower Court record by the learned Sessions Judge passed after admitting the criminal revision petition was received by the office of the Sub-Divisional Magistrate, Majhaul on that date and accordingly on 20.6.2006 an order was passed by the Sub-Divisional Magistrate to transmit the record of the proceedings to the learned Sessions Judge in reference to criminal revision petition no. 234 of 2006. It is not disputed that the records were despatched by the Sub-Divisional Magistrates Office to that of the learned Sessions Judge, Begusarai and a shadow record was created. 3. It is also not disputed that after the records had been transmitted a police report was filed before the Sub-Divisional Magistrate on 18.8.2006 which is annexure-3 to the present petition by which a report was made about the state of emergency existing on the spot which might give rise to blood shed, etc. 3. It is also not disputed that after the records had been transmitted a police report was filed before the Sub-Divisional Magistrate on 18.8.2006 which is annexure-3 to the present petition by which a report was made about the state of emergency existing on the spot which might give rise to blood shed, etc. requiring the subject matter of dispute to be attached u/s. 146(2) of the Code of Criminal Procedure. The attachment order was not passed for quite some times and, lastly, the order attaching the subject matter of dispute was passed on 31.8.2006 in the shadow record inspite of the fact that the main record had been despatched to the learned Sessions Judge. The O.P. No. 2 appeared thereafter and filed a petition on 9.10.2006 (annexure-5) and the Sub-Divisional Magistrate, Majhaul on the same day passed the impugned order recalling the attachment order passed by him which gave rise to the filing of the present miscellaneous petition. 4. The impugned order dated 9.10.2006 vacating/recalling the order of attachment u/s. 146(2) of the Code of Criminal Procedure has been attacked as passed without jurisdiction because the criminal Courts do not have a power to review or revise their own order. The order was also attacked on the ground that after attaching the subject matter of dispute u/s. 146(2) of the Code of Criminal Procedure by order dated 31.8.2006, O.P. No. 2 did not take up any legal proceedings for getting the order set aside by any superior criminal Court and merely presented a petition on the same day seeking the vacation of the attachment order and without hearing the petitioner the impugned order was passed on 9.10.2006 itself on which date the petition was filed by OP. no.2. The lower Court did not have any reason and concrete factual basis for holding that emergency did not exist on the spot and there was no longer any apprehension of the breach of peace which was necessary for recalling the order and it was merely a petition the veracity of which could not be even got enquired into through any competent agency. It was further contended that mere settlement of the dispute by the civil Court does not make the proceeding u/s. 145 of the Code of Criminal Procedure meaningless if it is found that the parties were at draggers drawn and there was apprehension of breach of the peace in respect of immovable property in regard to which there was a bona fide dispute of possession giving rise to the odd apprehension of breach of peace. Reliance was placed for making the above submission on Prakash Chand Sachdeo V/s. The State, 1994 1 SCC 471 . 5. The learned counsel appearing for the O.P. No. 2 has placed some of the admitted facts as also some circumstances which led to the initiation of the proceeding and ultimately the passing of the impugned order undisputedly the dispute relates to 2 bigha 6 katha of survey plot no. 6548 under khata no. 1423 situate at Mauza Majhaul which was a joint family property of Ravindra Narayan Agrawal and Arvind Kumar Agrawal both sons of Bishundeo Narayan Agrawal, Total area of the above noted plot is 4 bigha 12 katha and there was a partition between the two brothers Ravindra Narayan Agrawal and Arvind Kumar Agrawal as a result of which 2 bigha 6 katha from south was allotted to Ravindra Narayan Agrawal while the other part of the plot of the same area from north, fell into the share of Arvind Kumar Agrawal. Subsequently, partition suits no. 43/72 and 44/72 were filed for partitioning their respective shares among the coparceners of their respective branches and accordingly by a decree in partition suit no. 43 of 1972 the entire area of 2 bigha 6 katha from south was allotted to Jitendra son of O.P. No. 2, Ravindra Narayan Agrawal. As regards 2 bigha 6 katha from north the share of Arvind Kumar Agrawal the father of the petitioner, the same was allotted to Shobha Devi the mother of the petitioner. Both Jitendra and Shobha Devi leased their respective shares in the above noted plot to Ravindra Narayan Agrawal O.P. No. 2, on which there was a Cinema Hall and presently a school is being run in the premises. Arvind Kumar Agrawal the full brother of Ravindra Narayan Agrawal (O.P. No. 2) had two sons Rajeev Kumar Agrawal (petitioner) and Dr. Sanjeev Agrawal. Rajeev Agrawal the present petitioner filed partition suit no. Arvind Kumar Agrawal the full brother of Ravindra Narayan Agrawal (O.P. No. 2) had two sons Rajeev Kumar Agrawal (petitioner) and Dr. Sanjeev Agrawal. Rajeev Agrawal the present petitioner filed partition suit no. 188/96 against his mother, brother and others in which Ravindra Narayan Agrawal (O.P. No. 2) was a defendant and he filed a petition under Or. 7 R. 11 of the Code of Criminal Procedure for rejection of the plaint on the ground of earlier partition of the property in the two suits filed in 1972 and also on the ground of the present partition suit, i.e., T.S. No. 188 of 1996 being vexatious. The plaint was rejected by the Civil Court against which F.A. No. 475 of 1999 was filed before this Court. Petitions under Or. 39 Rules 1 and 2 of the Code of Criminal Procedure were filed thrice by the present petitioner Rajeev Kumar Agrawal which were rejected. Thereafter the present petitioner filed a petition for appointment of receiver under Or. 41 R. 1 of the Code of Criminal Procedure and by an order dated 5.8.2003 passed in F.A. No. 475/99 (annexure-A to the LA. petition) this Court refused to appoint receiver. Thereafter a collusive compromise petition was filed by the present petitioner in the aforenoted F.A. which was objected to by O.P. No. 2 Ravindra Narayan Agrawal on which a direction was given by this Court, while rejecting the compromise petition, that the matter could be considered later on at the appropriate stage of the hearing of the F.A. 6. A proceeding u/s. 144 of the Code of Criminal Procedure was got initiated thereafter by the petitioner Rajeev Kumar Agrawal and when the proceeding was about to expire a prayer was made before the Sub-Divisional Magistrate for initiating a fresh proceedings u/s. 145 of the Code of Criminal Procedure but that prayer was rejected by the Sub-Divisional Magistrate on 17.4.2006. Thereafter a fresh application was filed by the present petitioner on 2.5.2006 praying therein to initiate a proceeding u/s. 145 of the Code of Criminal Procedure because there was apprehension of breach of peace on account of the disputed question of possession relating to the above noted subject matter of dispute. Thereafter a fresh application was filed by the present petitioner on 2.5.2006 praying therein to initiate a proceeding u/s. 145 of the Code of Criminal Procedure because there was apprehension of breach of peace on account of the disputed question of possession relating to the above noted subject matter of dispute. The Sub-Divisional Magistrate called for a police report by his order dated 3.5.2006 and the same was submitted on that day but no proceeding was initiated for a week and ultimately the proceeding was drawn up u/s. 145 of the Code of Criminal Procedure on 10.5.2006. 7. I have pointed out earlier that the O.P. No. 2 preferred a criminal revision petition to challenge the vires of order dated 10.5.2006 initiating the proceeding and that criminal revision petition bearing no. 234 of 2006 was admitted on 26.5.2006 and the records of the lower Court were called for by the order of the same date which were ordered to be despatched by the Sub-Divisional Magistrate on 20.6.2006. As noted above the attachment order was passed on 31.8.2006 on receipt of a police report, annexure-3 to the present petition. 8. While recalling the order attaching the land in dispute the learned Sub-Divisional Magistrate has observed that it was an error on his part to have passed an order of attachment u/s. 146 of the Code of Criminal Procedure in view of the fact that the record of the case had been transmitted to the learned District and Sessions Judge in reference to criminal revision petition no. 234 of 2006. 9. Power to attach the subject matter of the dispute lies with the Magistrate u/s. 146 of the Code of Criminal Procedure. A reading of the provision may indicate that if the case appears to be one of emergency, the Magistrate at any time after making order u/s. 145(1) of the Code of Criminal Procedure could attach the property. But the attachment order could be passed not merely in a case of emergency but also when the Magistrate is unable to decide as to which of the parties was in possession of the subject matter of dispute on the date of instituting a proceeding u/s. 145(1) of the Code of Criminal Procedure or two months prior to that date. But the attachment order could be passed not merely in a case of emergency but also when the Magistrate is unable to decide as to which of the parties was in possession of the subject matter of dispute on the date of instituting a proceeding u/s. 145(1) of the Code of Criminal Procedure or two months prior to that date. The property could also be attached if the Magistrate finds it difficult to ascertain as to which of the parties was in possession over the disputed property and till the competent civil Court decides the rights of the parties to possess the disputed property. Thus either of the three conditions could be the ground for attaching the property. Proviso to Sec. 146(1) of the Code of Criminal Procedure indicates that the Magistrate may withdraw the attachment at any time on being satisfied that there was no longer any likelihood of the breach of the peace with regard to subject of dispute. In view of this provision it could not be said that the Magistrate could not be empowered to recall or vacate the order of attachment passed by him in respect of the disputed property; he could do it but he has to be satisfied about the non-existence of the apprehension of the breach of peace. In other words, if the State of emergency no longer exists, if the situation is tranquil, it could be within the competence of the Magistrate to review or revise his earlier order attaching the property. Therefore, the contention of the learned counsel for the petitioner that the order of the Magistrate was dehors the jurisdiction when he was vacating the attachment order and that tantamounts to reviewing or revising his own order does not appear sound and acceptable. 10. The principle on which the above argument was advanced by the learned counsel for the petitioner is not applicable to a situation when the order is interlocutory. The criminal Court indeed does not have inherent power like the civil Court to pass any order so as to revising or reviewing its earlier decision for the ends of justice if the order is final. But, if the order is interlocutory, the criminal Courts could very well review/revise it. An order attaching a property may be final or if not final, if may not be interlocutory in isolation because it affects the rights of the parties. But, if the order is interlocutory, the criminal Courts could very well review/revise it. An order attaching a property may be final or if not final, if may not be interlocutory in isolation because it affects the rights of the parties. The immovable property might be in the possession of a particular person, may be, that the person is a trespasser. When the property is attached, the person in possession of the property is ousted out of possession by such order of the Court and in case of appointment of the receiver in respect of the property as appears in the present case, the property becomes custodia legis, thus affecting the rights of any of the parties. On this premise it could be said that the order u/s. 146(2) could be final. But when the same provision contains a proviso which has the overriding effect over the provision of Sec. 146(1) and which empowers the Executive Magistrate to withdraw the attachment order at any time in the proceeding then this is a special jurisdiction vested in him and contingent upon a particular state of affairs, i.e., no likelihood of the breach of peace any longer existing on the spot. This was the reason for this Court to hold that an order of attachment passed u/s. 146(1) of the Code of Criminal Procedure was interlocutory and cannot be challenged through a criminal revision petition. The exacts word used by this Court for describing the order of attachment interlocutory were "inherently temporary in nature" as appears from Bachan Mahto V/s. The State of Bihar, 1988 0 PLJR 384. 11. The question which raises itself in my mind as regards the jurisdiction of the Magistrate to withdraw the order of attachment is as to whether the Magistrate could withdraw the order only on the ground of nonexistence of the apprehension of breach of peace or could it be done considering other facts and circumstances of the matter as well, such as, the finality of the civil proceedings regarding the right to possess as also the question of disputed possession? I hold a view that if a civil Court has finally decided the dispute as regards the title and possession of the parties in respect of an immovable property then the criminal Courts do not have any say in the matter. I hold a view that if a civil Court has finally decided the dispute as regards the title and possession of the parties in respect of an immovable property then the criminal Courts do not have any say in the matter. This view gets support from the provision of Sec. 146(1) of the Code of Criminal Procedure as well which states that the property could be attached till the competent civil Court has finally decided the question of right to possess the property. Needless to say right to possess always connotes the title of a person to be in possession of a particular property. As soon as the right to possession of a person is decided by a competent civil Court, in my considered, view the order of attachment ends automatically even if there is no order to that affect by the Executive Magistrate. The language of Sec. 146(1) of the Code of Criminal Procedure also indicates the same when it says that the attachment order may be passed by the Magistrate "until a competent civil Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof". The language is so clear and communicating the above view of mine as not to leave any doubt that the order of attachment could lie no longer till the decision by the competent civil Court in respect of the entitlement of possession of a person is passed. The question regarding the entitlement of possession may not be final. May be that some interlocutory orders are passed by a competent civil Court regarding the question of possession/dispossession. The civil Court may also pass some restraint order against the parties in respect of the subject matter of dispute and may also appoint a receiver and in that case also the order of attachment could no longer remain in force, rather be deemed to have disappeared in the light of the orders of the civil Court, for, there could not be any longer the apprehension of the breach of the peace existing in respect of the matter of dispute. This view of mine gets support from a decision of the Supreme Court Dharampal V/s. Smt. Ramshri, AIR 1993 SC 1361 . This view of mine gets support from a decision of the Supreme Court Dharampal V/s. Smt. Ramshri, AIR 1993 SC 1361 . The observations are made in para 5 at page 1364 of the report and I am tempted to quote the same which runs up to page 1365: "It is obvious from sub-sec. (1) of Sec. 146, that the Magistrate is given power to attach the subject of dispute "until the competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof". The determination by a competent Court of the rights of the parties spoken of there has not necessarily to be a final determination. The determination may be even tentative at the interim stage when the competent Court passes an order of interim injunction or appoints a receiver in respect of the subject-matter of the dispute pending the final decision in the suit. The moment the competent Court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end. Otherwise, there will be inconsistency between the order passed by the Civil Court and the order of attachment passed by the Magistrate. The proviso to sub-sec. (i) of Sec. 146 itself takes cognizance of such a situation when it states that "Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of any breach of peace with regard to the subject of dispute". When a Civil Court passes an order of injunction or receiver, it is the Civil Court which is seized of the matter and any breach of its order can be punished by it according to law. Hence on the passing of the interlocutory order by the Civil Court, it can legitimately be said that that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute. The fact that the Magistrate can withdraw the order of attachment passed by him even during the pendency of the dispute in the Civil Court is made further clear by the provisions of sub-sec. (2) of Sec. 146. The fact that the Magistrate can withdraw the order of attachment passed by him even during the pendency of the dispute in the Civil Court is made further clear by the provisions of sub-sec. (2) of Sec. 146. When the Civil Court appoints a receiver, the order of attachment passed by the Magistrate necessarily gives way to the order of the Civil Court appointing the receiver, it is only when the Civil Court does not appoint the receiver that the Magistrate may make arrangements for looking after the property or even appoint a receiver itself. However, even when such a receiver is appointed and the Civil Court subsequently appoints a receiver of its own the Magistrate has to order the receiver appointed by him to hand over the possession of the subject in dispute to the receiver appointed by the Civil Court and discharge the receiver appointed by him. He has also to pass such other incidental or consequential orders as he thinks just. Such order may include an order of withdrawal of the attachment in view of the seizure of the matter by the Civil Court and the consequent want of apprehension of breach of the peace." 12. Thus, what appears from the above discussion is that mere non-existence of the breach of peace and the satisfaction of the Magistrate could be sufficient for withdrawal of the order and the absence of apprehension of breach of peace could not merely appear from a police report. It may also flow from circumstances as indicated above. 13. In the present case the learned Magistrate withdrew the order attaching the property stating that it was passed in spite of the fact that the record of the case had been sent to the learned District & Sessions Judge in compliance of his order calling for the same and it was an error on the part of the Magistrate to have proceeded in the matter to attach the subject-matter of dispute. It was contended by the learned counsel for the petitioner that calling for the record and despatching the same cannot act as a stay of the proceedings affecting the exercise of jurisdiction of the lower Court. It was contended by the learned counsel for the petitioner that calling for the record and despatching the same cannot act as a stay of the proceedings affecting the exercise of jurisdiction of the lower Court. The power to call for records of an inferior criminal Court lies with the High Court and the Sessions Judge so as to satisfying itself or himself as to the correctness, legality, or propriety of any finding sentence and order, recorded or passed and as also to the regulatory of the proceedings of such inferior Court. Undisputedly the learned Sessions Judge had called for the records of the case and the same was also despatched by the learned Sub-Divisional Magistrate. Could it act as a fetter to the jurisdiction of the S.D.M. so as to further proceeding in the case from that stage. 14. The question does not appear set at rest by this Court. Some of the older decisions of other High Courts appear taking divergent views. The Bombay High Court and the High Court of Calcutta take a view that calling for record u/s. 397 of the Code of Criminal Procedure operates as a bar to the jurisdiction of the inferior Courts further in the proceeding. The Bombay High Court has gone to hold as may appear from AIR 1925 Bom 247, that calling for the record u/s. 397 suspends the jurisdiction of the inferior Court to continue a proceeding. The Calcutta High Court in 1996 4 CrLJ 433 has held that order calling for the record suspends the jurisdiction of the inferior Court to pass ad interim order in the proceeding. The Allahabad High Court has taken a contrary view in AIR 1954 All 537 by holding that such type of order does not necessary operate as stay of the proceedings. In my considered view calling for the records may not act as a fetter to other exercise of jurisdiction by inferior criminal Court unless the very basic order of the Court passed is being examined from the angles as indicated in the Section so as to permitting or not permitting the very continuance of the proceeding. In my considered view calling for the records may not act as a fetter to other exercise of jurisdiction by inferior criminal Court unless the very basic order of the Court passed is being examined from the angles as indicated in the Section so as to permitting or not permitting the very continuance of the proceeding. If an intermediate type of order, say, orders like that u/s. 145(8) of the Code of Criminal Procedure order of refusing/allowing admission of any document in evidence or, closure of the evidence of a party to a criminal proceeding, direction to execute ad interim bonds for keeping peace and of being good behaviour, rejection of bail bonds, etc. in various criminal proceedings is being examined u/s. 397 of the Code of Criminal Procedure which could not finally terminate the proceedings in the case the order calling for the record of the inferior Court may not act as bar to other proceedings on the other aspects of the matter except the very aspect which is sought to be examined and annulled u/s. 397 of the Code of Criminal Procedure. 15. It is now well settled position of law that an order of attachment could be passed simultaneously while drawing up a proceeding u/s. 145 of the Code of Criminal Procedure [kindly see Gaya Singh V/s. Doman Singh, 1979 0 PLJR 324. The very language of Sec. 146 indicates that the powers under that Section are not independent of the powers of an Executive Magistrate u/s. 145 of the Code of Criminal Procedure No attachment order could be passed if there was no 145 of the Code of Criminal Procedure proceedings. Not only that no attachment order could be passed if there is no existence of the breach of the peace on the spot which is sine qua non for initiating a proceeding u/s. 145 of the Code of Criminal Procedure as well. The very question of existence of the apprehension of breach of peace may be examined by a revisional Court through a criminal revision petition. The very question of existence of the apprehension of breach of peace may be examined by a revisional Court through a criminal revision petition. That revision petition has been preferred by the O.P. No. 2 before the learned Sessions Judge and undisputedly the records of the case had been called for by that Court so as to satisfying itself about the correctness of the proceeding after looking into the record to find out that indeed the ingredients necessary for initiating a proceeding u/s. 145 of the Code of Criminal Procedure were existing and the satisfaction of the Executive Magistrate was justified. One of the chief ingredients for exercising jurisdiction u/s. 145 of the Code of Criminal Procedure like that u/s. 146 of the Code of Criminal Procedure was the existence of the apprehension of the breach of peace and that was being examined by the revisional Court. In that background the calling for the record and despatching of the same, in my considered view, operated as stay of further proceedings in the Court below. 16. The learned S.D.M., while passing the impugned order, has taken cognizance of the above aspect of the matter and has observed that it was an error on his part to have proceeded to act upon the police report disclosing an emergency existing at the spot requiring the order of attachment to be passed in respect of the disputed property. Courts exist for doing justice and the majesty of justice is that the Court have to do justice fully, completely and correctly. Might be that a Court falls into an error of judgment on an over sight of a particular fact or law and proceeds to pass an order when he could not done so. It could be within its domain to correct it even by reviewing or revising the same, for, the Court could be suffering from a complete lack of jurisdiction or from a bar of acting further in the proceeding and as such the order being a nullity. I find that the S.D.M. realised his mistake in proceeding further in a case the record of which had already been submitted to a superior Court for exercising his revisional jurisdiction and he felt his duty to correct himself. I find that the S.D.M. realised his mistake in proceeding further in a case the record of which had already been submitted to a superior Court for exercising his revisional jurisdiction and he felt his duty to correct himself. This could be the reason for rejecting the submission made by the learned counsel for the petitioner that there was no occasion for the lower Court to withdraw the order of attachment passed by him earlier on 31.8.2006. If the order is illegal or if the order is passed without jurisdiction on account of stay in the proceeding or on account of the effect of an order acting as a stay of the proceedings then no order could have been passed further in the case. If the S.D.M. passed the order in spite of lacking jurisdiction on account of the implied stay of the same the order was non est. There was no necessity, as such, for any party to question the attachment order in any revision proceedings simply for the reason that the order was a nullity on account of being passed during the period when the presumptive stay was acting against the jurisdiction of the Court. 17. As regards the law cited by the learned counsel for the petitioner reported in 1994 1 SCC 471 concerned, the fact of that case was completely different. There was no partition between the father and the son and the son had expelled the father from the possession of the house which had been built by the old man. Herein in the present case the story is of partition taking a complete shape as it appears from the facts and the F.A. is in respect of another suit. The possession of the O.P. No. 2 is claimed on the basis of the lease of the property to him which fact is not disputed. I believe that the question has to be decided by a competent Court. As regards the definite share of different parties there is no dispute about it because there are already decrees passed in two partition suits filed in the year 1972. In that view there appears some finality to the civil dispute. As regards shares of different parties that cannot be decided by the criminal Court. As regards the definite share of different parties there is no dispute about it because there are already decrees passed in two partition suits filed in the year 1972. In that view there appears some finality to the civil dispute. As regards shares of different parties that cannot be decided by the criminal Court. But in spite of almost finality the civil litigation through the two partition suits, there could be dispute of possession/dispossession and the apprehended danger to the peace and there could not be any bar in initiating a proceeding u/s. 145 of the Code of Criminal Procedure which was initiated and which is presently under scrutiny of the revisional Court. If the proceeding is allowed to continue by the revisional Court then the question of attachment could be re-examined by the Magistrate if he receives any information regarding existence of the state of emergency at the spot so as to attaching the property u/s. 146 of the Code of Criminal Procedure. That liberty always lies with the Magistrate who is hearing a proceeding u/s. 145 of the Code of Criminal Procedure. May be that there could be some law and order situation arising out of the dispute at the spot till the revision petition is disposed of by the learned Sessions Judge. I believe that a proceeding u/s. 107 of the Code of Criminal Procedure may be resorted to by the Magistrate for handling that situation. I also believe that the learned Sessions Judge considering the urgency of the matter, may hear the criminal revision petition expeditiously and dispose of the same at the earliest. 18. In view of the above discussion I do not find any merit in the present petition and the same is dismissed.