Research › Search › Judgment

Jharkhand High Court · body

2007 DIGILAW 226 (JHR)

Bali Puran v. Saheba Puran

2007-03-30

D.G.R.PATNAIK

body2007
JUDGMENT D.G.R. Patnaik, J. 1. The petitioners in this application have prayed for quashing the entire criminal proceedings pending against them in the court of the Subdivisional Magistrate, Bundu, Ranchi, in Misc. Petition No. MP.6/06/M-92 of 2006 as also the order dated 3.11.2006 passed in the case by the learned court below whereby direction was issued to the officer in charge Arki PS, to auction sell the standing paddy crops over the disputed land. 2. The main ground on which the continuance of the proceeding as also the order dated 3.11.2006 has been challenged is that the learned court below has failed to apply judicial mind and has, in fact, exceeded its jurisdiction in initiating the proceedings and passing the aforesaid impugned order without considering the fact that earlier for the same disputed land, two separate proceedings, under Section 144 Cr.P.C. were initiated and were decided in favour of the present petitioners and against the respondents. 3. It may be mentioned that notices to the respondents were issued both under registered post as well as by ordinary process and considering the office report that the notices were received by and on behalf of the respondents, service of the notice was deemed effected and the instant case was taken up for hearing, though none appeared on behalf of the respondents. 4. The facts of the case, briefly stated, is that a petition was filed on behalf of the respondents registered as M. No. 92 of 2006 before the Sub Divisional Magistrate, Bundu, Ranchi under Section 145 Cr.P.C. on 23.3.2006. The learned court below called for a report from the concerned police station. After receipt of the police report, the learned court below by order dated 24.5.2006, initiated proceedings under Section 145(1) Cr.P.C. against both the parties calling upon them to appear and submit their respective written statements. The issue raised by the respondents/first party was in respect of the land measuring an area of 13.35 acres under khata Nos. 25, 26, 33,76, 97 and 101 situated at village Kujiyamba, within the district of Ranchi. Service report of the notice issued by the learned court against the petitioners/second party was not received till 20.6.2006. However, a report was received by the learned court below on 29.6.2006 suggesting that the noticee refused to accept the notice. The petitioners/second party, however, appeared before the learned court below on 19.9.2006. Service report of the notice issued by the learned court against the petitioners/second party was not received till 20.6.2006. However, a report was received by the learned court below on 29.6.2006 suggesting that the noticee refused to accept the notice. The petitioners/second party, however, appeared before the learned court below on 19.9.2006. An earlier petition filed in the proceeding by the respondents/first party for passing an order of attachment of the land in dispute, under Section 146 Cr.P.C. was rejected by the learned court below by order dated 19.9.2006 with a direction to put up the case on 11.11.2006. 5. On 3.11.2006, the respondents/first party, filed a petition before the learned court below for initiating action under Section 148(8) Cr.P.C. and though the case was posted for hearing on the next date i.e. 4.11.2006, the impugned order was passed on the same day i.e. 3.11.2006 whereby while accepting the prayer of the respondents/first party, direction was issued to the officer in charge Arki Police Station to auction sell the standing crops grown over the disputed land. 6. From the petition dated 3.11.2006 filed by the respondents/first party in the said proceedings, it appears that they claimed possession over the disputed land and also claimed to have grown paddy crops thereon and in view of their apprehension that the second party petitioners would harvest the ripened paddy crops, prayed for taking the crops into court's custody. 7. Learned counsel for the petitioners has challenged the continuance of the proceedings on the ground that the learned court below has failed to consider that in respect of the same disputed land by and between the same parties in an earlier proceedings under Section 144 Cr.P.C. vide M.Case No. 91 of 1995, rule of restraint against the respondents/first party was made absolute by the same court prohibiting them from entering into the disputed land and further in respect of the same disputed land, a civil suit was also filed and decided by and between the same parties in Title Suit No. 195 of 1967 in the court of the Subordinate Judge at Ranchi in which a decree was passed in favour of the plaintiffs which was modified by the appellate court of the 1st Addl. Judicial Commissioner to the extent that the decree passed was subject to the condition that the plaintiffs would pay a sum of rupees two thousand in favour of the defendants No. 1 and 2 along with interest thereon @ six per cent per annum from the date of execution till the date of the judgment and the respondents, who were plaintiffs, having not complied with the condition even after the direction passed by the High Court in appeal, the decree of the Subordinate Judge stood nullified thereby confirming the possession of the petitioners over the disputed land. 8. As regards the impugned order dated 3.11.2006, learned Counsel submits that the order was passed behind the back of the petitioners without affording them any opportunity of being heard and without assessing as to whether there was any situation of emergency requiring immediate action for attachment of the crops under Section 145(8) of the Code of Criminal Procedure. 9. On reading the order dated 24.5.2006 passed by the learned court below in the said proceedings, it appears that the order initiating proceedings under Section 145(1) Cr.P.C. was passed by the learned Magistrate after perusing the police report and on being satisfied that the report indicated existence of breach of peace between the parties concerning possession over the disputed land mentioned in the report, and after having recorded its ground of satisfaction, directed the parties to appear and submit their respective written statements in the said proceedings. 10. Section 145(1) of the Code of Criminal Procedure reads as under: Section 145. Procedure where dispute concerning land or water is likely to cause breach of peace: (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concern in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute." 11. On going through the aforementioned order whereby the proceedings were initiated, I find no infirmity or impropriety in the order. On going through the aforementioned order whereby the proceedings were initiated, I find no infirmity or impropriety in the order. The learned Magistrate while stating the grounds of his satisfaction has stated as per the police report that there existed apprehension of beach of peace between the parties relating to possession over the land in dispute necessitating initiation of the proceeding under Section 145(1) of the Code of Criminal Procedure. Besides recording the grounds of satisfaction, the leaned court below has also specified the disputed land by reference to the plot number and other requisite descriptions directing the parties to put in their written statement of their respective claims. 12. In a proceeding so initiated, the Magistrate has to proceed with the inquiry to its logical end to assess as to which party was in possession of the subject of dispute on the date of order under Section 145(1) Cr.P.C. It is only when any party or any other person interested in the disputed land is able to show before the enquirying Magistrate that no such dispute causing apprehension of breach of peace exists or has existed, the magistrate shall cancel his earlier order staying all further proceedings. 13. In the instant case, no such occasion for cancellation of the order appears to have arisen before the learned court below since neither of the parties had made any application for the same. 14. Under Section 145(8) Cr.P.C. the enquirying magistrate has the authority to make an order for proper custody or sale of any crop or other produce or property, if he is of the opinion that any crop or other produce of the property, the subject of dispute in a proceeding pending before him, is subject to speedy and natural decay, and upon completion of the inquiry, shall make such order for the disposal of such property, or sale proceeds thereof, as he thinks fit. 15. It appears that by order dated 3.11.2006, the learned court below has exercised its power under Section 145(8) Cr.P.C. directing auction sale of the standing crops. However, the order suffers from two defects. 15. It appears that by order dated 3.11.2006, the learned court below has exercised its power under Section 145(8) Cr.P.C. directing auction sale of the standing crops. However, the order suffers from two defects. As appearing from the certified copy of the order sheet of the lower court records, the order dated 3.11.2006 was passed pursuant to a petition filed by the respondents/first party under Section 145(8) Cr.P.C. wherein prayer was made before the learned court below to take into its custody the ripened paddy crops grown over the disputed land. It also appears that though the matter was posted for hearing on the following day i.e. 4.11.2006, but on the same day i.e. 3.11.2006 by the impugned order, the learned Magistrate directed that the standing crops be cut in presence of the parties and be auction sold and the sale proceeds be deposited with the Anchal Nazarat till the disposal of the proceedings. Though the order contains recording that the matter was heard in presence of the lawyers of both the parties, but the order does not indicate that any attendance was filed on behalf of the petitioners/second party on the said date and neither does the order assign any reason as to why it was passed on the same day of filing the petition on 3.11.2006, although the case was posted for hearing on 4.11.2006. It also appears that without assessing as to whether the property sought to be attached is subject to speedy and natural decay or that there was any emergent necessity for attachment of the crops, or for taking immediate custody of the crops, the learned court below had directed not only for cutting the standing crops, but also to auction sell the same. No doubt, Section 145(8) Cr.P.C. does not necessarily involve a case of emergency for attachment of crops and only permits taking care of the crops in a given situation, but before proceeding to take the crops into its custody, the learned court below should assign reasons and its satisfaction that a situation has arisen for taking the crops into its custody. The order having been passed without affording adequate opportunity to the petitioners of being heard and the order being not in accordance with the procedure laid down under Section 145(8) Cr.P.C. cannot therefore he sustained in law. 16. The order having been passed without affording adequate opportunity to the petitioners of being heard and the order being not in accordance with the procedure laid down under Section 145(8) Cr.P.C. cannot therefore he sustained in law. 16. Under the circumstances, the order dated 3.11.2006 passed by the learned court below is hereby quashed. 17. As regards petitioner's prayer for quashing the entire proceedings, I do not find sufficient ground for accepting the same. The order whereby proceeding under Section 145(1) Cr.P.C was initiated does not suffer from any infirmity. The petitioners may agitate their grounds in respect of their claim over the disputed land before the enquirying Magistrate in course of the enquiry in the proceeding. The leaned court below shall expedite and conclude the enquiry within three months from the date of this order. Both parties shall assist the court below in concluding the enquiry within the stipulated period. During pendency of the proceeding, if a prayer for custody of the standing crops be made by either of the parties, the learned court below shall dispose of the same after hearing both parties and by assigning adequate reasons. With the above observations, this application is disposed of. Application disposed of.