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2009 DIGILAW 13 (PAT)

Ram Vinay Prasad Kushwaha v. State Of Bihar

2009-01-07

SAMARENDRA PRATAP SINGH

body2009
JUDGEMENT Samarendra Pratap Singh, J. 1. Heard the learned Counsel for the petitioner, the State as well as respondent No. 5 who died during the pendency of the writ application. 2. A proceeding under Section 144 Cr.P.C. was initiated on the application of respondent No. 5 (now dead) on 12.4.2006. During the continuance of the proceeding an application was filed before the Collector, West Champaran, by respondent No. 5 stating therein that the land in question belongs to him and he is in possession of the same. He further prayed that O.P. No. 2 in the proceeding under Section 144 Cr.P.C. be restrained from looting his crops. The Collector vide his endorsement dated 12.4.06 on the application of other side gave direction for harvesting of the crops. Pursuant to the aforesaid direction of the Collector the crops were harvested and compliance report was submitted by the Circle Officer on 27.4.2006 to the S.D.O., Bettiah. In the meantime, the S.D.O., Bettia, finding it expedient that proceeding under Section 144 of Cr.P.C. is not adequate initiated a proceeding under Section 145 Cr.P.C. on 10.6.2006. 3. The learned Counsel for the petitioner submits that the direction issued by the Collector dated 12.4.2006 is without jurisdiction as the same was passed without giving hearing to him. Further more as the S.D.M., Bettiah was in seisin of the matter vide proceeding No. 647 M/06 and as such the Collector, Bettiah should have restrained from issuing any order. He further submits that in any view of the matter the petitioner would be entitled for compensation. 4. The State too filed counter affidavit stating that the writ application has become infructuous as direction of Collector dated 12.4.06 has already taken its effect. It would appear from material on the record that main issue in the writ application is whether the Collector can pass an order for harvesting wheat crops by one party in respect of which a proceeding under Section 144 Cr.P.C. is pending between the parties before S.D.M. Bettiah. 5. It would appear from material on the record that main issue in the writ application is whether the Collector can pass an order for harvesting wheat crops by one party in respect of which a proceeding under Section 144 Cr.P.C. is pending between the parties before S.D.M. Bettiah. 5. The power of a magistrate to pass order regarding harvesting or security of crop is provided in Section 145(8) Cr.P.C. Once a proceeding under Section 145 Cr.P.C. has been initiated and if the Magistrate is of the opinion that any crops or other produces of the property is subject of dispute he may pass appropriate order regarding its proper custody or sale of such property or sale of the same pending enquiry. Furthermore, the magistrate in time after initiating proceeding under Section 145 Cr.P.C. can also restrain both the parties from going over the land and the crops by passing order of attaching the same. Once a proceeding under Section 145 Cr.P.C. was initiated the Collector did not have any jurisdiction to pass order in harvesting of the crops on application of one or other party. Thus this Court holds that the direction dated 12.4.2006, passed by the Collector, West Champaran at Bettiah is without jurisdiction. 6. Mere pendency of a civil suit would also not be a ground for the Collector to pass any order regarding harvesting of crop by one party or the other once a proceeding under Section 145 of Cr.P.C. was initiated. As such this Court holds that the direction given by the Collector, West Champaran, vide order dated 12.4.2006 is wholly without jurisdiction. 7. It appears from the materials on record that civil suit is pending between the parties vide Case No. 674/06. 8. It would be open to the petitioner to move for due compensation before the appropriate authority, if the civil suit is decided in his favour. 9. This writ application is allowed to the extent stated above.