Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 539 (PAT)

Mahanth Bijoy Das v. State Of Bihar

2007-03-15

MADHAVENDRA SARAN

body2007
Judgment 1. This application under Section 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 31.1.2005 passed by learned Additional Sessions Judge-VI, Muzaffarpur in Cr.Revision no. 142/2001 whereby and whereunder he has dismissed the revision and affirmed the order dated 26.4.2001 passed by learned Sub-divisional Magistrate, West Muzaffarpur in Case No. M722/01 under Section 145(1) of the Code. 2. It appears that the petitioner Mahanth Bijay Das was second party in the proceeding before the court below whereas opposite party no. 2 Murari Prasad Singh was the 1st party. It appears that opposite party no. 2/1st party filed a petition in the court of Sub-divisional Magistrate, West, Muzaffarpur that he was authorised by the Religious Trust Board to look after Ram Janki Thakurbari, Sugga Mandir, Naya Tola, Muzaffarpur. It was alleged that the petitioner/2nd party in collusion with opposite party no.1 was misusing the crops of scheduled-1 property and was using it as his personal income and on being asked to provide the account, the 2nd party became violent as a result of which Puja Path of deity could not be done properly and the temple came to a dilapidated condition. He also stated that the property of Bihar State Religious Board was being misused and the management of temple could not be done properly. Learned Sub-divisional Magistrate, West, Muzaffarpur after hearing the 1st party and on being satisfied that on account of land dispute there was tension between the parties and also apprehension of breach of peace at their hands, by order dated 26.4.2001 initiated a proceeding under Section 145 of the Code. It appears that after service of notice the petitioner being the 2nd party appeared and filed show cause that there is no apprehension of breach of peace and 1st party to the proceeding is a tenant of the petitioner. The petitioner also pointed out that the Honble High Court in C.W.J.C. No. 8305 of 1998 has quashed the constitution of the committee and therefore, the 1st party is no more Secretary of the committee and the petitioner is the present Mahanth of the Math in question. Inspite of above submission, learned Sub-divisional Magistrate preferred to proceed with the proceedings under Section 145 of the Code. The petitioner thereafter filed Cr. Revision no. Inspite of above submission, learned Sub-divisional Magistrate preferred to proceed with the proceedings under Section 145 of the Code. The petitioner thereafter filed Cr. Revision no. 142/01 before the learned Sessions Judge, Muzaffarpur which was heard and disposed of by Additional Sessions Judge-VI, Muzaffarpur who by order dated 31.1.2005 dismissed the revision and affirmed the order of learned Magistrate. Against the said order dated 31.1.2005 the petitioner has preferred the present application for quashing before this Court. 3. During the pendency of the present miscellaneous application, the petitioner filed I. A. No. 1142/2005 for adding fresh prayer in the light of subsequent development taking place in the proceeding before the court below. In the petition it has been mentioned that by order dated 20.4.2005 learned Sub-divisional Magistrate has attached the property under Section 146(1) of the Code. The petitioner therefore, prayed to quash the order of attachment dated 20.4.2005 passed in Case No. 807/04. 4. Then the petitioner filed another I. A. No. 17/07 for adding fresh prayer in the miscellaneous application on the ground that the petitioner filed a petition before the learned Magistrate under Section 145(5) of the Code to drop the proceeding but the same has been rejected by order dated 10.8.2005. 5. It was contended on behalf of the petitioner that the very initiation of proceeding under Section 145(1) of the Code is bad in law because in the instant case the learned Magistrate on the same date when the petition was filed without obtaining any police report or without any sort of inquiry whether there was any apprehension of breach of peace, started the proceeding. It was further contended that the learned Magistrate in the impugned order dated 26.4.2001 has not recorded any ground as to why he was satisfied that there was apprehension of breach of peace between the parties. Learned counsel pointed out that in the petition filed by 1st party there was no mention of apprehension of breach of peace. Learned counsel further pointed out that at that point of time, the petitioner was not the Secretary of the Management Committee rather 2nd party was the Mahanth of the Committee. Learned counsel pointed out that in the petition filed by 1st party there was no mention of apprehension of breach of peace. Learned counsel further pointed out that at that point of time, the petitioner was not the Secretary of the Management Committee rather 2nd party was the Mahanth of the Committee. It appears from the impugned order dated 26.4.2001 that the learned Magistrate after being satisfied that on account of cutting of crop from the land of Religious Trust Board there was tension between the parties and also apprehension of breach of peace at their hands, initiated the proceeding in question. 6. It is essential that before exercising jurisdiction, the Magistrate should be satisfied either from Police report or from other information which would include the application filed by the party that there is a likelihood of breach of peace. The question whether on the materials placed before the Magistrate, he should initiate the proceeding or not, is his discretion. No hard and fast rule can be laid down as to sufficiency of materials for his satisfaction. The law on this point is well settled that when the Magistrate records his satisfaction as to existence of breach of peace in his preliminary order, the High Court or the Sessions Judge cannot go into the sufficiency or otherwise of the material on which the Magistrates satisfaction is based. It has to be kept in mind that the action under this Section is purely preventive and provisional in nature. The purpose is to ward off commission of breach of peace. Having regard to the totality of the circumstances the learned Magistrate has recorded his satisfaction about the existence of breach of peace and started instant proceeding, in my opinion, this Court is not supposed to scrutinize the entire materials for coming to a different conclusion. 7. It was next contended on behalf of the petitioner that by order dated 20.4.2005 the learned Magistrate has attached the land under Section 146 of the Code without holding any inquiry and also without assigning any reason. It was further contended that the petitioner filed a petition under Section 145(5) of the Code to drop the proceeding but the same has been rejected vide Annaxure-7 to I.A. No. 17/07. 8. It was further contended that the petitioner filed a petition under Section 145(5) of the Code to drop the proceeding but the same has been rejected vide Annaxure-7 to I.A. No. 17/07. 8. It appears from the order dated 20.4.2005 and 10.8.2005 that the learned Magistrate after hearing the 1st party and also on the basis of police report came to an opinion that the prevailing situation was emergent one and so he attached the land under Section 146(1) of the Code and appointed office in-incharge of Kazipur Police Station as receiver of the property. In the instant case, notice to opposite party before passing an order of attachment was not necessary and the Magistrate was well within his jurisdiction to pass an order of attachment on the basis of materials brought before him for the reason that after the order passed under Section 145(1) of the Code the petitioner left taking proper steps in the proceeding and also failed to file any reply to the petition filed under Section 146(1) of the Code. The Magistrate in the order dated 10.8.2005 has mentioned that this was a case of emergency before passing order of attachment under Section 146(1) of the Code. 9. Learned counsel for opposite party no. 2 on the other hand, challenged the maintainability of the present application on the ground that High Court should not act as a second revisional Court under the garb of exercising inherent powers. While exercising inherent powers in such matter like the present one it has to be kept in mind that the learned Additional Sessions Judge has exercised his revisional power in the matter. He also argued that the two I.A. applications have been filed for adding fresh prayer for quashing of more than one order which is not permissible. He pointed out that cause of action of two interlocutory applications arose during the pendency of the present Criminal Miscellaneous application and so the petitioner cannot be allowed to go on adding fresh ground for quashing in the main application. I find substance in the argument of learned counsel. The two I.A. applications have been filed for quashing the order dated 10.8.2005 and 6.9.2005. The present Criminal Miscellaneous application was filed in Court on 24.3.2005 for quashing the order dated 31.1.2005 of learned Additional Sessions Judge. I find substance in the argument of learned counsel. The two I.A. applications have been filed for quashing the order dated 10.8.2005 and 6.9.2005. The present Criminal Miscellaneous application was filed in Court on 24.3.2005 for quashing the order dated 31.1.2005 of learned Additional Sessions Judge. The two I.A. applications certainly have separate cause of action and so they cannot be added in the present application. 10. In the aforesaid facts and circumstances, I find no merit in the application and it is accordingly dismissed.