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2012 DIGILAW 1463 (PAT)

Rabindra Rai Sharma v. State of Bihar

2012-10-15

RAKESH KUMAR

body2012
ORDER Heard Sri Pramod Manbansh, learned counsel for the petitioner, Sri Mukeshwar Dayal, learned Additional Public Prosecutor as well as Sri Pramod Kumar Sinha, learned counsel, who has appeared on behalf of private opposite parties i.e. opposite party nos. 2 to 7. 2. In the present case, the sole petitioner, while invoking inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 12-05-2010 passed by learned Additional Sessions Judge-Vth, Begusarai (hereinafter referred to as “Addl. Sessions Judge”) in Criminal Revision No. 270 of 2009/3 of 2010. By the said order, learned Addl. Sessions Judge has affirmed the order dated 16-10-2009 passed by learned Sub-Divisional Magistrate, Teghra (hereinafter referred to as “Magistrate”) in case no. 56M of 2009, whereby, the learned Magistrate has attached the suit land and appointed officer- in-charge of Fulwaria police station as ‘Receiver’. 3. It was submitted by learned counsel for the petitioner that on the suit land, petitioner was in peaceful possession, whereas, on petition filed on behalf of opposite party nos. 2 to 7, a proceeding under Section 144 of the Cr.P.C. was initiated and subsequently, it was converted to a proceeding under Section 145 of the Cr.P.C. In said proceeding, on the prayer made by the opposite party nos. 2 to 7, the learned Sub-Divisional Magistrate, by its order dated 16-10-2009, attached the property and appointed officer-in-charge, Fulwaria, as Receiver. He submits that without any report from either police officer or other competent persons, the learned Magistrate has converted proceeding initiated under Section 144 Cr.P.C. to a proceeding under section 145 Cr.P.C. only on the petition filed by opposite party nos. 2 to 7. Learned counsel for the petitioner submits that he is not assailing the order of proceeding converted to a proceeding under Section 145 Cr.P.C. but he is aggrieved with the order of appointment of Receiver by the learned Magistrate. It was argued that for passing an order for attaching the property and appointing Receiver, it was necessary for the learned Magistrate to record a finding that there was firstly specific case of breach of peace and there was any case for emergency for attaching the property. He further submits that immediately after filing a petition in a proceeding under Section 145 of the Cr.P.C. on behalf of opposite party nos. He further submits that immediately after filing a petition in a proceeding under Section 145 of the Cr.P.C. on behalf of opposite party nos. 2 to 7 for attaching the property, the learned Magistrate, even without affording opportunity to the petitioner for filing any response to the said petition, has passed the impugned order of attachment. He further submits that learned Addl. Sessions Judge, before whom the order was assailed, has rejected the revision petition only on the ground of technicality that the order of attachment was an interlocutory order and against said order, the revision was barred under Section 397(2) of the Cr.P.C. Sri Pramod Kumar Sinha, learned counsel appearing on behalf of opposite party nos. 2 to 7 has vehemently opposed the prayer of the petitioner. It was argued that for attaching the property, there was no requirement for the Magistrate to record such finding. He submits that in emergent situation, the learned Magistrate was well-competent to pass order of attachment. Besides hearing the parties, I have also perused the materials available on record. It is evident from the impugned order i.e. order of attachment that immediately after the petition was filed on behalf of opposite party nos. 2 to 7, the learned Magistrate, without even waiting for response from the petitioner, who was second party before the Magistrate, has passed the order. Also in the order, he has not disclosed as to whether the opposite party nos. 2 to 7 were in possession for the suit land and the petitioner was trying to grab his possession. Fact remains that without hearing other sides, the learned Magistrate, in a mechanical manner, has passed the order of attachment. Accordingly, order dated 16-10-2009 passed in case no. 56M of 2009 by learned Sub-Divisional Magistrate, Teghra is not sustainable in the eye of law and same is hereby set aside. Since the order of Magistrate has already been set aside, there is no necessity to record any finding in respect of order of Revisional Court. The petition stands allowed. Before parting with this order, it is required to observe that the learned Magistrate may take steps so that proceeding, initiated under Section 145 Cr.P.C., may finally be decided without unnecessary delay.